The Lockean Theory of Rights

Citation preview

STUDIES IN M O R A L , A N D LEGAL

POLITICAL,

PHILOSOPHY

General Editor: Marshall Cohen

A list of titles in the series appears at the bock of the book

THE LOCKEAN THEORY OF RIGHTS A. John Simmons

PRINCETON

UNIVERSITY

PRINCETON,

NEW

PRESS

JERSEY

Copyright © 1992 by Princeton University Press Published by Princeton University Press, 41 WiUiarn Street, Princeton, N e w Jersey 08540 In the United Kingdom: Princeton University Press, Chichester, West Sussex All Rights Reserved Library of Congress Cataloging-in -Publication Data Simmons, A. John (Alan John), 1950The Lockean theory of rights / A. John Simmons, p. cm.—(Studies in moral, political, and legal philosophy) Includes bibliographical references and i n d e x ISBN 0-691-08630-3 ISBN 0-691-03781-7 (pbk.) 3. LocJce, John, 1632-1704—Contributions in political science. 2. Locke, John, 1632-1704—Contributions in human rights. 3. Locke, John, 1632-1704—Contributions in natural law. r. Title, n. Series. JC153.L87SS6 1992 323'.01—dc20 91-36773 This book has been composed in Linotron Palatino Princeton University Press books are printed o n acid-free paper and meet the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources First Princeton paperback printing, 1994 Printed in the United States of America 3 5 7 9

10

S 6 4 2

CONTENTS LIST OF ABBREVIATIONS

vii

ACKNOWLEDGMENTS

INTRODUCTION

3

O N E . T H E STRUCTURE OF LOCKF/S MORAL THEORY

1.1. 1.2. 1.3. 1.4. 1.5. Two.

2.1. 2.2. 2.3. 2.4. 2.5.

T h e Demonstration of Morality W h y W e O u g h t t o Obey G o d The Secular Strain T h e Superstructure of Locke's Theory T h e C o n t e n t of Natural Law LOCKE A N D NATURAL RIGHTS

The Place of Rights in Locke's Theory Equal Rights and Special Rights The Structure of Locke's Theory of Rights T h e Significance of Natural Rights Natural Right Skepticism

THREE. T H E RIGHT TO PUNISH

3.1. 3.2. 3.3. 3.4. 3.5. 3.6.

14 26 36 46 59 68

68 79 87 95 102 121

A Natural Executive Right Locke's Case Replies T h e Coherence of Locke's Position Forfeiture a n d Punishment T h e Monopoly on Force

FOUR. RIGHTS A N D THE FAMILY

4.1. 4.2. 4.3. 4.4. 4.5.

14

121 127 134 140 148 161 167

Wives, H u s b a n d s , a n d Servants T h e Rights of Parents (and the Duties of Children) T h e Rights of Children (and the Duties of Parents) The Family and Property T h e Family a n d Political Society V

167 177 192 204 212

CONTENTS

FIVE. PROPERTY RIGHTS

5.1. 5.2. 5.3. 5.4. 5.5. Six.

Natural Property Rights Labor: The Arguments L a b o r Replies a n d Reconstructions The Limits on Property Money

JUSTICE A N D CHARITY

222

222 236 264 278 298 307

6.1. Property in Political Society 6.2. Justice 6.3. Charity

307 318 327

6.4. Positive a n d Negative Rights

336

CONCLUSION

353

WORKS CITED

355

INDEX

377

ABBREVIATIONS Two Treatises of Government—I or II, followed by paragraph n u m ­ ber An Essay Concerning Human Understanding—E, followed b y book, chapter, a n d section n u m b e r Essays on the Law of Nature—ELN, followed b y page n u m b e r A Letter Concerning Toleration—L, followed by page number Two Tracts on Government—First Tract or Second Tract, followed by page n u m b e r The Reasonableness of Christianity—R, followed b y page number (and paragraph number) An Essay Concerning Toleration—ECT, followed by page number Some Thoughts Concerning Education—Education, followed by para­ graph n u m b e r

ACKNOWLEDGMENTS This book benefited greatly from the contributions a n d support of m a n y individuals a n d institutions. The University of Virginia a n d t h e University's C e n t e r for Advanced Study generously provided research time a n d other resources several times during a period of six years. The National Endowment for the Humanities also s u p ­ ported a semester of research in 1980. It w a s Nick Sturgeon's inci­ sive lectures o n Locke and the British moralists that first turned m y m i n d to t h e project finally completed here (some fifteen years later). During the intervening years, many colleagues, students, and academic audiences have bravely endured m y presentations of earlier versions of the ideas developed here, a n d they have m a d e m a n y valuable suggestions for the improvement of m y work. M y failure to acknowledge them individually indicates no lack of gratitude for their help, b u t only the (considerable) limits of m y memory. More recently (and within the limits of my mem­ ory), Julian Franklin a n d George Klosko kindly read a n d offered m a n y helpful comments on the first four chapters of the book. Dis­ cussions with Ken Kipnis added much to m y understanding of is­ sues I treat in chapter 4, a n d Josh Cohen a n d Warren Quinn pro­ vided extensive comments that have much improved the arguments of chapter 3. Finally, I must thank the staff of the Bod­ leian Library for their help with m y research, and Eusebia Estes a n d A n n e Cox for typing large parts of the manuscript. My great­ est debt, however, is owed to m y friend and wife, Nancy Schauber. She contributed m u c h in the way of substantive philo­ sophical i n s i g h f b u t more important, she rekindled m y interest in completing this project at a time w h e n I h a d nearly given it u p . O n e chapter of this book contains material that has been previ­ ously published. Chapter 3 (excluding section 4) is a longer, slightly altered version of "Locke and the Right to Punish," Philos­ ophy & Public Affairs (Fall 1991).

ix

T H E

L O C K E A N

T H E O R Y

O F

R I G H T S

INTRODUCTION This is a s t u d y in Lockean moral a n d political philosophy. The the­ ory of rights employed and (to some extent) defended by John Locke in h i s Two Treatises of Government is, for all its gaps, ambi­ guities, a n d confusions, the most thorough a n d extensive concep­ tion of the natural moral rights of persons presented by any of the classical philosophers. Much of the enduring value a n d appeal of the Treatises rest on this fact. Yet surprisingly little attention has b e e n paid specifically t o the structure a n d logic of Locke's theory of rights, o r to the arguments h e advances in support of various aspects of t h a t theory. Much h a s been written about Locke's polit­ ical philosophy generally, with references to but n o thorough examination of trie theory of rights o n which that philosophy rests. There h a v e also b e e n substantial studies of Locke's moral philos­ o p h y generally, a n d of his theory of property specifically, but again w i t h o u t careful analysis of the full body of rights with which Locke w a s so centrally concerned, or m u c h thought about the po­ tential for developing his insights in fruitful directions. Part of t h e reason for this lacuna in the literature o n Locke may be the belief that rights in Locke follow fairly simply from his the­ ory of natural law. Rights in Locke, some have claimed, are the mere s h a d o w s of t h e duties w e o w e to God. This view, I will ar­ gue, is far too simple to take account of the variety of arguments Locke advances for, specific rights. A n d even if this view w e r e cor­ rect, it is still far from easy to see h o w specific duties in Locke are meant to follow from his general claims about God's law. Another reason for t h e paucity of literature o n Locke's theory of rights is no doubt the widespread belief that all rights in Locke can be un­ derstood b y u n d e r s t a n d i n g property rights. Since all rights are characterized b y Locke as property, once one h a s explicated the theory of property, one has said all that need b e said about rights. I will suggest* however, that this approach also fails to do justice to the full scope of Locke's views o n rights. To try to characterize as " m a k e r ' s " or "laborer's" rights (and t h u s a s foundationally identical to the rights w e have in external goods) the general rights of self-government all persons are b o r n to, their executive and des3

INTRODUCTION

potical rights, a n d even their contractual or parental rights will lead to serious distortion of Locke's position. Finally, a third rea­ son for its neglect is n o doubt the simple tact that Locke's theory of rights is offered by him primarily in s u p p o r t of a n attractive project in political philosophy: a defense of a particular conception of political obligation a n d its limits, a n d of the authority of legiti­ mate limited government. It is, as a result, quite natural to pass over the details of the theory of rights in order to focus o n Locke's m o r e distinctly political views. But Locke's theory of rights h a s value i n d e p e n d e n t of its political employments; a n d it must, in any event, b e properly understood before t h e political philosophy based u p o n it can be fully appreciated. This book, however, is not intended simply as a study of Locke's theory of rights. It aims, rather, at a more general exploration of w h a t I will call "the Lockean theory of rights." By "the Lockean theory ot rights" 1 mean not Locke's o w n theory, as h e presented it, b u t instead the best version of that theory—a theory close e n o u g h to Locke's o w n to be considered "Lockean," b u t improved by certain departures from the letter of Locke's theory. The depar­ tures a n d modifications I will suggest are primarily those moti­ vated by concerns Locke himself expressed (but failed to act on) a n d those dictated b y (or at least consistent with) the spirit of Locke's project in moral and political philosophy. Expticating the Lockean theory of rights will thus inevitably involve taking a s t a n d on the quite controversial question of what the spirit of Locke's project really is. Was h e an uncharitable apologist for capitalism or a leveling social revolutionary, a radical voluntarist a n d libertarian or a social welfare theorist, a secular h u m a n i s t or theological ethicist? My intention in this work, then, is to offer the reader both a systematic interpretation of Locke's theory of rights a n d a n esti­ mation of the potential for a Lockean approach (and for natural rights approaches generally) to some central issues of moral a n d political philosophy. I will examine a distinctive set of problems about moral rights a n d their relevance to political philosophy, try­ ing to solve these problems where I can and to point in the a p p r o ­ priate directions for dealing with t h e m w h e n I cannot. In doing so I will say a great deal about the general character a n d internal logic of a particular kind of moral viewpoint a n d try to illuminate one w a y of understanding the relation between moral a n d political philosophy. I a m n o t u n a w a r e of t h e d a n g e r s of attempting t o combine in this way scholarly a n d philosophical tasks. In u n d e r 4

INTRODUCTION

taking t w o tasks at once, it is easy to m u d d l e both; one may err either in finding m o r e in t h e texts t h a n is there, or just as badly in binding oneself too firmly to the texts. I attempt here to negotiate the path b e t w e e n these mistakes. I take both t h e interpretive a n d the philosophical portions of m y task to b e badly in need of doing. The interpretive lacuna I have already described. But-in some w a y s t h e philosophical project seems m o r e urgent, partly because the philosophical discussion of natural rights has been left too long to people often more inter­ ested in the conclusions than in the arguments that might support them, a n d partly because current communitarian a n d pragmatist thought s e e m s t o proceed far too quickly in dismissing t h e insights of the natural rights tradition. The language of natural rights a n d natural law is, of course, not m u c h in fashion today, the rights being stressed primarily b y libertarians a n d the laws primarily b y neo-Aristotelians and Thomists. I will argue in chapter 2, how­ ever, t h a t taking seriously t h e possibility of natural law a n d natu­ ral rights requires far less of a theoretical commitment than is normally s u p p o s e d , and that m a n y popular communitarian argu­ ments for dismissing the natural rights tradition are confused or otherwise unpersuasive. The m a n y philosophers w h o reject altogether the idea of natural or objective moral rights (not all of t h e m communitarians or pragmatists by a n y means) are far from the only thinkers w h o will b e skeptical in advance about the philosophical ambitions of this book. " C o m m o n s e n s e Lockeans," w h o accept Locke's moral prin­ ciples b u t take them to be self-evident or otherwise in no n e e d of argument, will n o doubt anticipate that m y treatment of Locke will be too h a r s h or analytical. By contrast, those w h o believe that Locke's theocentric perspective can only produce in his works ar­ g u m e n t s a n d positions irrecoverably distant from our o w n con­ temporary theoretical enterprises, will probably expect my study of Locke to wrench his claims from their true intellectual founda­ tions, badly distorting everything in the process. I h o p e to say enough in the course of this volume to convince all of these skep­ tics that the approach here employed is more fruitful than it might seem to promise to be. The general strategy p u r s u e d in this work is simple. I begin with Locke's o w n theory of rights, outlining both its general structure (chapters 1-2) a n d the arguments for specific rights and specific features of rights (chapters 3 - 6 ) . Throughout I p u r s u e b o t h con­ structive, analytic interpretation of Locke's texts and active criti5

INTRODUCTION

cism of his positions a n d a r g u m e n t s . Where Locke's claims are unconvincing or incomplete, a n d where his arguments are an­ tiquated or otherwise philosophically suspect, I try to develop t h e Lockean position in w a y s consistent w i t h Locke's ambitions. My aim is always the presentation of the most plausible, philo­ sophically respectable Lockean stance, driven b y a desire to d o the best that can be d o n e for Locke—that is, an elaboration a n d im­ provement of his ideas that will p u t Lockean insights in a fair light for contemporary eyes. Finally, I ask how persuasive t h e resulting Lockean position really is. A n evaluation of this best version, w h a t I call the "Lockean theory of rights," should give u s the truest measure of the tradition in moral and political philosophy of which Locke's philosophy is paradigmatic. The Lockean theory of rights that must emerge from a n y s u c h analysis utilizes a largely "protective" conception of natural moral rights, one that gives special emphasis to rights of self-government and to associated rights to make property, to make contracts a n d promises, to p u n i s h moral wrongdoers, a n d to make a n d rear a family. The defense of these "protective" rights gives the Lockean position in moral and political philosophy m u c h of its distinctive flavor, for these rights are subsequently used to justify an essen­ tially voluntaristic conception of the proper moral relation between citizens a n d their governments. But however compelling this pic­ ture may be, I will argue, it is important not to lose sight (as so many have done) of the limits to this protective, voluntaristic view of moral and political relations, both in Locke's theory a n d in the best Lockean theory. Locke, as w e will see, w a s sensitive to the limits on our private pursuits a n d acquisitions, set not only by the direct h a r m w e may do to others, but also by considerations of fairness a n d t h e n e e d s of others. Similarly, any Lockean position that would take seriously its own moral foundations m u s t be sen­ sitive to these limits. In attempting to reveal the character and force of Locke's theory of rights and its role in political philosophy, I aim at w h a t I take to be the heart of Locke's normative philosophy. But 1 should stress my awareness that this is not to address the whole of Locke's thought even in this area. The theory of rights (and of their logi­ cally correlative and equally important duties) is only one (the deontic) part of Locke's moral theory. I say very little in this vol­ u m e about Locke's theory of virtue a n d its relation to his deontic theory. Locke stresses his theory of rights a n d duties in his later work, of course, because h e intends to apply his moral theory to politics. And politics is chiefly concerned with the same essentially 6

INTRODUCTION

interpersonal relations as is deontic moral theory. But m u c h of in­ terest remains to b e said about Locke's theory of virtue, indepen­ dent of his (and our) preoccupation with his political philosophy. Similarly, I a d d r e s s only briefly problems in Locke's moral epistemology (and problems at the foundations of his moral philosophy generally) that w e r e central to his philosophical concerns. A n d while I discuss here m a n y questions about the moral basis of Locke's (and Lockean) political philosophy, I make n o attempt to d o a complete study of his political philosophy. Very little is said about the details of Locke's theory of government, especially w h e r e these derails s e e m not t o b e directly determined b y aspects of Locke's theory of rights. I d o not, t h e n , deal in this work with the whole of Locke's phi­ losophy, or even t h e whole of his normative philosophy. But the strategy of this volume does involve assumptions about the best way to read the whole of Locke's philosophical work. I read this work throughout as argument, as Locke's attempts to address en­ during questions pf philosophy in an almost unremittingly analyt­ ical fashion. I take Locke's Treatises, for instance, not as primarily apology or ideology or code or dogma, b u t as philosophical theory aimed at resolving questions asked m a n y times both before and since Locke asked t h e m . This is not to say that Locke did not try to advance other aims as well in his work. Locke h a d a practical political p u r p o s e in writing the Treatises, a p u r p o s e t h a t largely squared w i t h his philosophical views. But this is to say that w e should not take Locke's case in t h e Treatises to be wholly guided by the current n e e d s of his political cause, to b e an unconnected hodgepodge of attempts at persuasion, with n o d e e p e r philosoph­ ical concerns underlying his arguments. The Treatises, I will try to show, reveal a coherent theory of rights that is largely consistent with the philosophical positions Locke advances in other, less po­ lemical w o r k s . The author of the Treatises is, after all, the same m a n w h o w r o t e t h e Essay, a " m a n of letters" concerned to satisfy "the d e m a n d s solely of t r u t h " (as Locke asserted in his epitaph), a m a n with a well-documented a n d insatiable thirst for knowledge and system. Locke m a d e lasting contributions in metaphysics, in the philosophy of m i n d a n d action, in epistemology, in the philos­ ophies of religion a n d education. Throughout h e addressed the great problems of philosophy a n d responded by reasoning, with 1

1

Regardless of his political (and other special) concerns, Locke clearly wrote the Treatises with h i s philosophical vision firm\y fixed o n both his predecessors and h i s successors. See, for example, Waldron, Private Property, 134-36; Grant, liberalism, 10-11; and Pangle, Republicanism, 277. 7

INTRODUCTION 2

bodies of philosophical a r g u m e n t The idea that Locke did not have similar intentions in the Treatises, with their straightfor­ wardly theoretical concerns, is, on its face, simply not at all plau­ sible, regardless of what Locke's practical, nonphilosophical agenda may have been. N o doubt Locke h a d clear ideas about the conclusions that h e w a n t e d his arguments to support, a n d these conclusions were u n ­ doubtedly those to which h e w a s committed in his practical polit­ ical affairs. This fact, however, s h o u l d not incline u s to view Locke's approach in the Treatises as unphilosophical. Philosophy seldom begins in anything like a social vacuum; normative philos­ o p h y never does. Locke was deeply concerned with h o w w e (and he) o u g h t t o live our lives a n d the kind of society in w h i c h w e (and he) ought to live. H e entered the philosophical arena with opin­ ions o n these questions that he did his best to defend, opinions that obviously squared as well with m a n y of those w h o shared his political affiliations. Indeed, the most striking difference between the Treatises and other, less celebrated Whig works of the period (including m a n y that preceded the Treatises) lies not in their main conclusions or assumptions. In these the Treatises are far from orig­ inal. What makes the Treatises a great work is their successful blend of practical a n d theoretical appeals. The Treatises are (where pamphlets of the period are not) a thorough and systematic effort to produce a coherent political philosophy, evidenced largely by their careful articulation of the theory of rights on which the the­ ories of society and government are based. 3

Philosophers typically approach their subjects with views about w h a t a p r o p e r answer will probably look like. Locke w a s n o excep­ tion to this rule (although this influenced just as much the content of the Essay as it did that of the Treatises). The test of Locke's work, t h e n , should not be w h e t h e r or not h e h a d conclusions in mind in advance that h e h o p e d to defend (he did), or where these ideas originated (whether from abstract reasoning or from practical p o ­ litical involvement), but rather how effectively Locke succeeded in justifying his views a n d whether his arguments for them have any enduring force as rational, philosophical appeals. 2

This wgrk will try to s h o w that not only are there more arguments in Locke's Treatises than are usually noticed, but that there are more interesting arguments, more components of a coherent theoretical structure. Many have disagreed, with this view of the Treatises. See Ashcraff s remarks on this subject in Locke's Two Trea­ tises, 3. 3

See, for example, Ashcraft, Revolutionary Politics, 1 6 4 - 6 5 . 8

INTRODUCTION

I will read Locke's texts as works that not only do speak to us, b u t that w e r e intended t o speak t o us—to later generations of thoughtful m e n a n d women, interested in the same philosophical questions. T h e Treatises w e r e dearly intended to be "more than a n occasional political tract in favor of the Glorious Revolution." The theory of rights advanced in the Treatises is one that can, in m y view, b e evaluated and improved without distortion by the appli­ cation of contemporary standards of argument. With this in mind I will try to d o here what h a s n o t often been d o n e in scholarly work on Locke—to apply contemporary philosophical insights a n d methods to the analysis of Locke's theory of rights (and his argu­ ments for that theory). 4

This does not m e a n , of course, that I believe there is no intellec­ tual distance between Locke a n d ourselves, or that w e can under­ stand his claims without understanding a good deal about the in­ tellectual a n d historical setting in which h e wrote. Much of w h a t Locke takes for granted will be questioned or denied by a m o d e r n reader; m a n y arguments, acceptable in his day, are not acceptable in ours. N o r can w e even h o p e to appreciate the content or m e a n ­ ing of m a n y of Locke's claims without appreciating first the polit­ ical a n d philosophical climate t o which Locke responded in t h e Treatises (a? the careful scholarship of Dunn, Tully, Ashcraft, a n d others ought b y n o w to h a v e convinced us). But to take Locke as first and foremost a philosopher is to suggest that the gulf between us a n d Locke is not unbridgeable, that his work need not b e taken to be only of purely historical interest to us. It is to claim a conti­ nuity across time in the project of moral and political philosophy; it is to assert that Locke's questions a n d Locke's reasons overlap in important and'productive w a y s our o w n questions and reasons. Consequently, I try in this study to advance a reading of Locke that is faithful to his texts a n d historically plausible; but I search as well always for that in his work which is of continuing philosoph­ ical interest. N o doubt this approach runs the risk of reading too many of our o w n contemporary worries back into Locke. But this is a risk that m u s t be accepted, while making every effort to avoid serious mistakes; for to do otherwise is to r u n the much more se­ rious risk of losing the insights with which Locke's texts can illu­ minate our present philosophical concerns. * Rapaczynaki, Nature and Politics, 15. A s Rapaczynski notes, Locke compared h i s Treatises to Atistode's Politics; and he plainly thought of the Treatises as comparable in character to the great theoretical treatises of Grotius and Pufendorf (see De Beer, "Locke and English liberalism," 36, 41, 43; and McNally, "Locke, Levellers," 38). 9

INTRODUCTION

My belief that Locke's arguments should still be of interest to u s three h u n d r e d years later is, however, based on more than t h e simple observation that Locke had philosophical concerns promi­ nently in mind in his writings. It is based as well on the diverse styles of argumentation Locke actually employed in defending his views. The diversity I claim to find in Locke has, of course, been denied. John D u n n , for instance, h a s argued for "the intimate d e ­ pendence of a n extremely high proportion of Locke's arguments for their very intelligibility, let alone plausibility, on a series of theological commitments." The uniformly theocentric approach Locke embraces in his arguments, D u n n claims, m e a n s that n o n e of t h e a r g u m e n t s of t h e Treatises can still " b e interesting as a start­ ing point for reflection about any issue of contemporary political theory." N o w while I agree with D u n n that Locke's theology must be taken very seriously as his starting place in ethics a n d political philosophy, that Locke's theological commitments are not mere "packaging" for his real secular interests, 1 do not think w e should conclude from these facts that Locke's moral a n d political arguments have n o lasting philosophical interest. Locke w a s not only a theologian; he was a philosopher, a n d his styles of argu­ ment are predictably diverse, given the m a n y levels o n which h e engaged philosophical theories a n d opponents. Few will disagree, I suspect, that Locke often seems m o r e inter­ ested in establishing his positions than in precisely how h e estab­ lishes t h e m . M a n y of Locke's arguments concerning rights are purely conceptual. M a n y are simple appeals t o common sense, as we might expect from a great champion of commonsense philos­ ophy. These arguments are logically independent of a n d detach­ able from the theological foundations with which Locke begins, and are as a result arguments that should be of interest even to those w h o s e perspective is perfectly secular (including, it seems, the majority of contemporary moral a n d political theorists). In­ deed, they are not only detachable, but are often presented b y Locke quite apart from any reference to his theological p r e s u m p ­ tions. We will see, for example, that one of Locke's arguments for the natural freedom a n d equality of persons, a n d many aspects of 5

6

3

Dunn, Political Thought, xi, x From the existence of Cod, Dunn claims, "all else follows" for Locke (ibid., 24). For a more qualified version of this view, see Ashcraft, Locke's Two Treatises, 67-69. Dunn has more recently "repudiated" the second sentence quoted above ("What Is Living?" 9,13-14), but h e continues to hold (even if less unqualifiedly) that little in Locke's moral and political theory (other than his ultimately indefensible contractarianism) can be properly understood or be thought to be defended by Locke independent of his theological commitments (ibid., 12). * Dunn, Political Thought, 222. 10

INTRODUCTION

his arguments for. property, the right to punish, a n d familial rights, have this character. Such arguments are mtermingled with others t h a t m o r e obviously refer to or rely o n Locke's theology. Even, then,: 'if Locke thought of his arguments as uniformly de­ p e n d i n g for their intelligibility o n the existence of God, the logical detachability of m a n y of them assures their relevance to contem­ porary philosophy. They can still have force a n d be evaluated rel­ ative to quite different foundational commitments than Locke's. But the diversity of Locke's arguments suggests a more interesting possibility as well: that even at its foundations Locke's project in moral a n d political philosophy is fundamentally pluralistic. It would not b e surprising if Locke h a d been interested in argu­ ing for his conclusions in more than o n e way in the Treatises, for, I will claim, Locke w a s at the center of m a n y crossroads in moral and political thought. H e wrote during a transitional period, w h e n the religious a n d secular components of his central concepts of rights a n d property w e r e no longer simple to delineate. While he came t o his project a r m e d with serious theological views a n d faced by o p p o n e n t s w h o required a response in those terms, Locke did relatively little in t h e Treatises to e x p o u n d u p o n those views. H e may well have taken for granted that his audience would share his views. But h e m a y also have believed t h a t h i s a r g u m e n t s ought t o convince even those readers w h o did not share them. I will urge a reading of Locke's moral theory that regards it as pluralistic at a variety of levels. First, it is a theory that is neither right-based, nor duty-based, n o r virtue-based, b u t that rakes seriously all three cat­ egories. Second, within the deontic portion of the theory, it ap­ peals to both consequentialist a n d deontological considerations to justify the rights arid duties it defends. A n d finally, it is pluralistic in that at t h e foundations of the theory arguments proceed from both theological a n d secular starting points. Locke's pluralism does much to explain the incredibly wide range of interpretations of his moral a n d political philosophy of­ fered in the scholarly literature. O n e can hardly read Strauss, Macpherson, or Nozick a n d believe they are discussing the same texts, that interest D u n n , Tully, and Ashcraft. But all of these authors can find in Locke some real support for their readings, simply be­ cause Locke argues in so m a n y different w a y s . Locke's conclu7

8

7

See, for example, Waldron, Private Property. 142; Ryan, Property and Political The­ ory, 22, 24; Monson, "Locke's Political Theory," Neither camp, 1 will suggest, decisively wins the day. In this I agree with Sha­ piro: "We can accept as conclusive much of the revision in Locke interpretation undertaken by D u n n , Tully, Riley, Ashcraft, and others and recognize with them 8

11

INTRODUCTION

sions are often "overdetermined," as we witf see, following from quite different styles of argument, all aimed a t s h o w i n g the s a m e thing. Such a n argumentative strategy invites interpretive contro­ versy. It is not, then, only the preinterprenve ambitions of various authors that determines the diversity of their readings of Locke. The reading of Locke's theory of rights presented in this volume aims at sensitivity to the pluralistic aspects of his thought. In this regard, the interpretive portions constitute a reading that is inter­ mediate b e t w e e n t w o broad classes of interpretation: those t h a t stress Locke's secular concerns and ascribe to him a radically in­ dividualist position (including, among the many strange bedfel­ lows, libertarian, Marxist, a n d Hobbesian interpretations) a n d those that emphasize Locke's theocentric perspective a n d his com­ munitarian or majoritarian sides. I believe that a part of Locke's genius a n d a major source of the e n d u r i n g interest a n d appeal of his thought, lay in his ability to identify a n d defend an at least apparently coherent position between these extremes. Locke's moral a n d political theories are moderately, not radically, individ­ ualistic; his moral arguments utilize both theological a n d secular first premises. Locke is throughout a blender a n d compromiser, drawing together m a n y disparate theoretical concerns a n d recon­ ciling these with his practical political interests. His w a s a complex task a n d one that he dealt with if not brilliantly, then at least more coherently than his m a n y detractors have aliowed. The basic orientation of this study is guided by t w o Lockean dis­ tinctions: that b e t w e e n moral and political philosophy a n d that b e ­ tween (what H . L. A. Hart has much more recently called) general a n d special rights. The former distinction is really only between a whole a n d one of its parts. As Locke p u t s it, "true politics I look on as a part of moral philosophy." Political philosophy is the a p ­ plication of (logically nonpolitical) moral principles to the realm of politics—that is, the study of how states and societies o u g h t (mor­ ally) to be, h o w citizens a n d governors ought (morally) to behave, the moral rights a n d duties of persons qua political beings. To u n ­ derstand political morality, w e need only understand natural m o ­ rality (the law of nature) a n d the facts of political life, seeing h o w the former evaluates the latter. More precisely, Locke distin9

the centrality of Locke's theology to his political writings. The implications of this for Locke's place in the liberal tradition, however, are not so devastating to older conventional wisdom as Tully and others seem to suppose" (Evolution of Rights, 108). ' Letter to Lady Peterborough, in King, Life, 1:9. 12

INTRODUCTION

guishes between, t w o parts of politics, "the one containing the original of societies and the rise and extent of political power, the other, t h e art of governing m e n i n society." The first part of pol­ itics—political philosophy proper—is the subject of Locke's Trea­ tises. It is also the ,subject of m a n y portions of this study. The bulk of the book, however, is devoted to the moral principles (those defining rights a n d duties) that are to be applied in political phi­ losophy. A further division in m y discussion of these principles is deter­ mined by the distinction between general a n d special rights (and duties), a familiar distinction in contemporary theories of rights a n d o n e clearly anticipated b y Locke (as w e will see in chapter 2). Chapters 1 a n d 2 concem the basic structure of Locke's moral the­ ory a n d the natural moral condition of h u n w i k i n d (the general rights a n d duties to which all persons are born). My concerns in these chapters are primarily interpretive. Chapters 3 to 6 take u p the most important of the special rights in Locke a n d their roles in his project in the Treatises, a n d m y treatment there is more philo­ sophical in n a t u r e . The rights discussed in these latter chapters are "special rights" in the sense that they all arise from special per­ formances, tiansaetions, or relationships, a n d their importance to Locke's political theory a n d any related Lockean project is plain. The defense of these rights gives Locke's a n d the Lockean theory of rights their real character as distinctive theories. I have tried to compose chapters 3 to 6 to be as much as possible "free-standing" discussions, accessible (without extensive reading in the remain­ der of the book) to those with special interests only in the partic­ ular topics of those chapters. 10

l

Throughout this-book I try to take seriously and to respond fre­ quently to existing literature o n Locke's moral a n d political theory, on rights generally, and o n the specific rights with which I deal here. There are, of course, limits to this task, set by both m y o w n energy and m y exegetical a n d philosophical ambitions, so this task is often confined to footnotes. This relegation should not be taken to indicate m y assessment of the importance of the literature in question. Those interested in a reasonably complete (but by n o means exhaustive) list of prominent books a n d articles in these ar­ eas will find o n e in "Works Cited." 10

"Some Thoughts Concerning Reading and Study for a Gentleman," 400. See Tarcov's discussion of this cfistuiction in Locke's Education, 5 - 6 .

13

O N E

T H E S T R U C T U R E OF L O C K E ' S MORAL THEORY

1.1. The Demonstration of Morality Most people in the English-speaking world (and m a n y outside it) have a practical, nonacademic acquaintance with the Lockean t h e ­ ory of rights. A commitment to (parts of) that theory g r o u n d s m a n y of their social and political practices a n d institutions, a n d , as a result, guides many of their commonsense j u d g m e n t s about right a n d wrong, just a n d unjust. It provides prominent a n d com­ forting landmarks in their moral world. American school children learn by rote (or, at least, used to learn) some of the content of the Lockean theory: " t h a t all m e n are created equal, that they are en­ d o w e d by their Creator with certain unalienable rights, that a m o n g these are life, liberty a n d the pursuit of h a p p i n e s s . " But they learn at the same time to regard these claims as "self-evi­ d e n t . " They are claims not to b e questioned, standing in n e e d of n o clearly articulable justification. Few ever discuss or even re­ member the reference in the Declaration to " t h e Laws of Nature and of Nature's G o d . " We " k n o w " and live by much of the specific content of the Lockean conception of rights, without having both­ ered to explore its foundations or its theoretical superstructure. The readers for w h o m Locke wrote the Second Treatise, of course, were not interestingly more inquisitive or "philosophical." While "the Laws of Nature a n d of Nature's G o d " were m u c h more cen­ tral to their moral landscape than to ours (and the specific Lockean rights rather m o r e controversial), Locke's audience w a s just as confident a n d secure in their moral beliefs. That we ought to obey our Creator's law was, w e might say, "self-evident." W h y w e ought to do so w a s a question, then as now, left to o n e side for 1

1

"There remains a very real sense in which Americans can say that Locke is our political philosopher" (Tarcov, Locke's Education, 1). 14

LOCKE'S

MORAL

THEORY

philosophers arid theologians. H o w one determines the n a t u r e of God's intentions for h u m a n k i n d a n d derives from them the spe­ cific content of God's law was similarly a n issue o n which Locke's audience w a s unlikely to have m u c h dwelled. Such questions were, for t h e m largely rendered moot b y revelation. These facts about Locke's readers in part explain m u c h of the disturbing paucity of foundational work in the Second Treatise. The content of parts of the natural law a n d the rights defined by it receive considerable attention; b u t very little is said about w h y these are our duties a n d rights (or about h o w w e are to discover the remainder of the law's content). O u r b e i n g God's creatures will not seem to a m o d e m reader a plausible explanation of w h y w e m u s t obey His laws, nor are w e so sure that w e can k n o w of either God's existence or His will for h u m a n k i n d . Locke's readers were more confident o n these points, obviating'the requirement of presenting a m o r e elaborate foundation for the moral theory that guides the arguments of the Second Treatise- Indeed, in n o n e of Locke's writings is there a clear a n d systematic presentation of the whole of his moral theory. My object in this chapter will b e to very briefly explore the foun­ dations of Locke's theory of rights. I begin with a n attempt to piece together, certain aspects of Locke's moral theory, drawing o n claims h e m a k e s in a variety of published and unpublished works. At least partly because Locke provides u s with so patchy a frame­ work for Such discussion, w e m u s t try throughout to be more careful t h a n is u s u a l to distinguish the various levels of Locke's (and Lockean) theory. It is, for instance, confusing to see Locke described as a n egoist or a utilitarian (or even a n intuitionist or proto-Kantian) while noticing at the same time his commitment to a divine will or drvine command theory of morality. I will, accord­ ingly, distinguish in this chapter the foundations of Locke's moral theory (sections 1-3) from the theoretical superstructure (section 4) and t h e specific content (section 5) of that theory. M y discussion of all of these matters will necessarily be brief, b u t I h o p e nonethe­ less convincing a n d adequate for m y purposes in the remainder of this volume (which will be more concerned with the content of Locke's theory of rights t h a n with its foundations). The rights defended by Locke in the Second Treatise are grounded in a familiar and largely traditional natural law theory. 2

3

1

See, for instance, Gauthier, "Why Ought One Obey God?" 426, 431^32. Locke can thus characterize his arguments as mere appeals to "common sense" (in the preface to the Treatises and, e.g., in 1,137) without obvious impropriety. See Laslett, "Introduction." I take Locke's commitment to this theory to be sin3

15

CHAPTER

ONE

The law of nature (and the duties and rights it defines) is God's law for m a n , a law for beings with reason a n d free will, binding t h e m to perform (often contrary to their indinations) as God wills a n d as their rational status d e m a n d s . Natural law is " t h e decree of the divine will discernible by the light of n a t u r e and indicating w h a t is and w h a t is not in conformity with rational n a t u r e " (ELN, I I I ) . It is n o t natural law in the descriptive sense, that is, rules according to which things in God's universe actually operate, al­ though Locke, like so many others, is not always entirely clear o n the distinction.* It is the moral law (R, 14 [23], 152 [219]); "the law is the eternal, urunutable standard of rigjht" (R, 162 [232]). M o r e precisely it is divine law that is "the only true touchstone of moral rectitude" (E, 2.28.8). W h e n divine law is given to m a n by revela­ tion, as in the Bible, it is positive moral law. W h e n it is discovered 4

6

cere, to be neither a use of Macpherson's "facade" {Possessive Individualism, 270) nor an embracing ot Strauss' Hobbesian "partial law" (Natural Right, 2 1 9 - 2 1 , 2272S; see also Kendall, "John Locke Revisited," 228). Strauss maintains that Locke's law of nature is not true law, differing from revealed law in both source and con­ tent. I argue below against these claims. For effective criticisms of Strauss' position, see Seliger, Liberal Politics, 58; Dworetz, Unvarnished Doctrine, 126-31; Von Leyden, Hobbes and Locke, 134-36. I will not try to add here to the already considerable lit­ erature on the history of natural law theory and Locke's place within it. Locke's theory of natural law can be positioned at least largely within the Thomist tradition. Trie influences on his views that are most apparent (and most frequently com­ mented on) are the writings of Hooker, Grotius, Pufendorf, and Cumberland. See, for example, TuUy, Discourse, 5 - 6 , 48; Tuck, Natural Rights Theories, 1 7 2 - 7 3 ; and Colman, Moral Philosophy, chapter 2, for recent discussions of Locke's position within various natural law traditions. General discussions of natural law theory can be found in, for example, Gierke, Natural Law (and Barker's Introduction to Gierke); d'Entreves, Natural Law; and Sigmund, Natural Law. * It is "that rule which w a s suitable to his nature . . . the law of reason, or, as it i s o i l e d , of nature" (R, 9 [14]). * On these two kinds of natural law, see White, Philosophy, 1 5 0 - 6 0 . Best argues (unconvincingly) that for Locke natural law really is descriptive ("Innocent," 174). The argument seems to be: the law of nature is the law of reason, "rational m e n act rationally," therefore the law only describes. But of course rational persons (in Locke's sense of minimal rationality) do not always act rationally. Colman s e e m s to get Locke right o n this point (Moral Philosophy, 30-31), The primary sense in which natural law is natural for Locke, is simply that it is a law w e "may attain to the knowledge of, by the use and due application of our natural faculties" (E, 1.2.13). While Locke does mention "the rule of living according to nature," h e makes it clear that he means living "in conformity with rational nature" (ELN, 111; m y em­ phasis—see also 1, 58), which w e by n o means d o automatically. The natural law is also natural for humans because they arc naturally sociable, and the law guides u s to peaceful coexistence, and because it is not a law made by people, but o n e that applies to them simply by virtue of their rational nature. See Drury, ")ohn Locke," 535-36; and 1-4. below. " 'There needs no more, but to read the inspired books to be instructed; all the duties of morality lie there clear, and plain, and easy to be understood" (R, 180

16

LOCKE'S

MORAL

THEORY

b y m a n w i t h o u t revelation t h r o u g h t h e use of reason (the "light of nature"), t h e divine law is the law of nature (ELN, 187). But the content of divine law is in the two cases the same, as is its binding force. We learn only a little about the law of nature in Locke's Two Treatises. There is a s k e t c h of the kinds of duties it places o n us (II, 6) a n d extensive discussion of certain rights it defines. The law binds u s , w e are told, because w e are all G o d ' s " w o r k m a n s h i p " (II, 6), although n o real explanation of that claim is offered. The law of n a t u r e is t h e law of reason (e.g., I, 101; II, 6, 57, 96), But Locke never tells iis just w h a t this means. And while the natural law is "as intelligible a n d plain to a rational creature, a n d a studier of that law; as t h e positive laws of commonwealths, n a y possibly plainer" (H, 12), the Treatises do not show u s h o w to discover or " s t u d y " the rules of morality.* 7

Locke's readers fare slightly better in An Essay Concerning Human Understanding. In books 1 a n d 2, for instance, Locke clarifies the relations b e t w e e n law and morality and the meaning of moral good a n d evil. A n d h e offers further claims about w h y w e ought to obey God's.commands (E, 2.25-8). But certainly the best k n o w n argument concerning morality in the Essay is that designed to show "that morality is capable of demonstration, as well as math­ ematics" (E, 3.31.16; first suggested at 1.2.1). We seem here to b e promised by Locke exactly w h a t w e want—a step-by-step " d e m ­ onstration" from clear and certain premises to the rules of natural law as conclusions. Few readers, however, are inclined to think that Locke makes good on this promise, w h e n h e finally discusses the demonstration directly (E, 4.3.18). He seems there to present 9

T

S o the rational demonstration of morality is for Locke perfectly consistent with the acceptance of revelation. "The divine law is that which, having been delivered to men by God, is a rule and pattern of living for them. And according as it either becomes known by the light of reason which is natural and implanted in men, or is made manifest in divine revelation, it is in turn divided into natural and positive law. And each of these I describe under the same head as 'moral' since each is exactly the same in its content and matter and they differ only in the manner of their promulgation and the clarity of their precepts. For this is that great rule of right and justice and the eternal foundation of all moral good and evil" (Second Tract, 222). Whatever is not required or forbidden by the l a w is maratty mdifferent Locke also distinguishes between God's particular commands (for example, to Mo­ ses) and His general commands (to all persons at all times). Only the latter are "the moral part" of God's law, the part that is "of eternal obligation" (K, 12 I2QJ). • This makes it rather misleading to characterize the Second Treatise (with Grant) as a demonstration of Locke's theory of rights and duties (see liberalism, 198). 'For Locke a "demonstration" involves an "uncovering of conceptual connec­ tions" (rbfton. Compass 92). 17

CHAPTER

ONE

little more than a couple of simple "analyses" of moral terms: "Where there is n o property there is no injustice"; " N o govern­ ment allows absolute liberty." While these propositions m a y b e true, the demonstration of their truth seems a project quite remote from t h e g r o u n d i n g of t h e moral law. We w a n t to k n o w h o w w e should act, a n d w h y . H o w do w e discern God's will? W h y are w e obligated to obey His commands? What makes moral law the law of reason? H o w can w e prove the specific precepts of natural law? 10

The best w e can d o in answering these questions for Locke is to d r a w together bits from his various works that suggest a coherent position. Opinion a m o n g philosophers a n d political theorists is sharply divided o n t h e issue of w h e t h e r Locke's texts reveal a con­ sistent moral theory. A n d o n the question of morality's d e m o n strability, w e k n o w that by the time Locke wrote The Reasonableness of Christianity, h e himself w a s no longer very confident in his (or anyone's) ability to produce a "full" demonstration of morality: "it is plain, in fact, that h u m a n reason unassisted failed m e n in its great a n d p r o p e r business of morality. It never from unquestion­ able principles, by clear deductions, m a d e out an entire body of the 'law of nature.' " But even if we can nowhere in Locke find a thorough proof or justification of the moral theory at w o r k in the Second Treatise, w e can, I think, find a sketch of a position that n

10

See Gough's complaint th*t "the examples h e gave amount to n o more than de6ning the meaning of certain terms and then drawing tautologous conclusions from their logical incompatibility" (Political Philosophy, 7); and the similar criticisms of Locke's "blunder" in White, Philosophy, 177-78; Herzog, Without Foundations, 9 4 - 9 5 ; and Aaron, John Locke, 2 6 2 - 6 3 . R, 171 (241). Note thai Locke d o e s not here say that none of morality can b e demonstrated. And even the whole of morality is never said to be beyond demon­ stration. N o o n e ever undertook to "give it us all entire" (174 [242]), "in every part demonstrable" (178 [243]); only "some parts of that truth lie too d e e p for our natural p o w e r s easily to reach" (177 [243]; m y emphases throughout). This is perfectly con­ sistent with the possibility of demonstrating the core or basic requirements of mo­ rality. Indeed, it is also perfectly consistent with the possibility of a full demonstra­ tion of morality. In the passages at issue, Locke is primarily discussing the "demonstrations" of the "heathen philosophers" before Christ (169-71 (241 J; 17374 [242)). And Locke never asserts that it is "too hard a task" for reason to produce a full demonstration; he says only that "it should seem, by the little that has hith­ erto been done in it, that it is too hard a task for unassisted reason" (170 [241]; m y emphasis). After the "assistance" of revelation (which s h o w s us what needs d e m ­ onstrating), "reason confirms" the truths of morality (178 [243]; m y emphasis). It is only "the greatest part of mankind" that lacks the leisure and skill for producing a full demonstration (170 [241]; 178 [243]; see also E, 4.20.2-6). Locke is far too often taken to be admitting in the Reasonableness that the project of the Essay is impossi­ ble. For more reasonable and accurate accounts of the true significance of his claims there, s e e Yolton, Compass, 171, 180; Colman, Mural Philosophy, 1 3 8 - 4 0 ; Ashcraft, Locke's Two Treatises, 267; and Grant, Liberalism, 4, 22-23. See also note 99 below. 11

13

tOCXE'S

MORAL

THEORY

remains substantially the same throughout his works (nearly all of which are concerned in one way or another with morality). The k e y ' t o understanding Locke's remarks in the Essay on the demonstration qf morality is to avoid being misled b y the exam­ ples h e offers in discussing i t . His analyses of moral ideas like " p r o p e r t y / ' ''injustice/' a n d " g o v e r n m e n t " (in E, 4.3.18) are not (as it might at first appear) badly misguided attempts at examples of the demonstration of rules of natural law, nor does Locke sug­ gest that they.are^* The propositions in question are obviously not rules for action at all. These analyses are meant only to make a simple point about moral ideas generally—that they have clarity and "adequacy" .sufficient to m a k e a demonstrative science of ethics possible. The connections between moral ideas (e.g., prop­ erty a n d injustice) that Locke's analyses reveal are simply exam­ ples of the kinds of, connections that he thinks will be employed in the demonstration of morality. The demonstration itself m u s t be­ gin with t h e ideas of a "a s u p r e m e Being" a n d of "ourselves, as understanding, rational creatures" (as Locke, too subtly, suggests earlier in E, 4.3.18) a n d end with the precepts of natural l a w . But it is only t h e clarity a n d adequacy of moral ideas which will permit such a demonstration, which will make possible moral certainty. Let m e explain these points more carefully. According to Locke, a systematic, demonstrative science is possible only w h e r e we can 15

13

13

1 2

Moral theory w a s Locke's single most enduring concern (see Ashcraft, Locke's Two Treatises, 234). Colman has convincingly defended the consistency of Locke's various efforts'in moral philosophy {Moral Philosophy, 235-43) against the charges of inconsistency advanced by, for example, Aaron (John Locke, 256-57, 266-67). Grant (Liberalism, 22-23) a n d Rapaczynski ("Locke's Conception of Property," 305) argue for the (more limited) view that w e should read the Essay and the Treatises as parts ol one, coherent project; and Ashcraft correctly points out that w e should expect consistency between at least the Essay and the Treatises, given that Locke spent at least a decade working on them simultaneously (Locke's Two Treatises, 23234). While Locke's moral v i e w s s e e m to have stayed reasonably constant from the 1660s o n , his political thought dearly underwent some substantial shifts during the period between 1660 and 1681. See Ashcraft, Revolutionary Politics, 7 5 - 7 6 ; and Parry, John Locke, 11-13. u

The discussion mat immediately follows o w e s much to Mattern, "Moral Sci­ ence"; Colmani Moral Philosophy, chapters 5 - 6 ; Tully, Discourse, chapter 1; Yolton, Compass. I will for the most part not note below the many points of contact between these works and m y a w n discussion. Locke seemed perfectly aware that mere analysis would be inadequate for his purposes in demonstrating morality. See "Of Ethics in General," one of whose main focuses is precisely the distinction emphasized in this paragraph. The criti­ cism that ethics for Locke amounts to pure analysis of terms, and that n o real ob­ ligations can be derived in that w a y (Aaron, John Locke, 263-64), thus seems mis­ guided. "Of Ethics in General," section 10. w

15

19

CHAPTER

ONE

reveal the necessary connections between the real essences of things. But, of course, w e can do this only if w e can know the real e s s e n c e s . We cannot, for instance, have a demonstrative science of nature since, as Locke famously claims, w e cannot k n o w the real essences of natural kinds (or "substances")- O u r substance ideas are inadequate (they are imperfect "ectypes") because they are intended t o represent external things w h o s e t r u e constitutions are not k n o w n (or knowable) to us (E, 2.31.11). Thus, certain knowledge in this area is denied u s . In mathematics a n d morality, however, things are rather different. Our mathematical a n d moral ideas are " m o d e s " that concern not natural k i n d s b u t purely con­ ventional kinds. These ideas are not made after any pattern of real existence in nature; they are themselves the patterns that " t h e mind of m a n has arbitrarily p u t together" (E, 3.11-15) (modes a n d relations are "archetypes" [E, 2.31.141). M o d e ideas cannot b e in­ adequate to their natural subject. Truth is here not a matter of cor­ respondence with the states of external things, nor are the real essences hidden from u s . Rather, the real a n d nominal essences are " t h e s a m e " (E, 4.6.4). Since our moral a n d mathematical ideas are adequate, "real knowledge" in these areas is possible {E, 4.4.7), as is demonstrative science (if w e can reveal the general logical structure of [necessarily connected] ideas, as Locke seems confident w e can [E, 4.3.201). These facts also address in part Locke's familiar worries about our knowledge of universal p r o p o ­ sitions (which will, of course, be part of a moral science). M a n y universal propositions (those about substances) are not certain, be­ cause certain knowledge requires either direct experience of all members of the kind referred to in the proposition (an experience w e generally lack) or knowledge of that kind's real essence (which, in the case of substances, is denied u s ) . We can, however, k n o w the real essences of moral kinds, making universal, instructive, certain propositions in morality (and mathematics) possible. All of this, of course, only shows h o w a demonstration of m o 16

17

w

The "real essence" of a thing is (roughly) that which makes a thing what it is (in the case of a body, its internal constitution). The "nominal essence," by con­ trast, is that by which w e name and classify a thing, by which w e "know if' (see E, 3.6.2; and Yotton, Locke, 103-5). There is, of course, also the problem of whether such propositions will be "in­ structive" or only "trifling" (true by definition). Locke s e e m s to believe that many universal propositions in mathematics and morality will be necessary but also in­ structive (E, 4.8.8). On the significance of this claim for Locke's moral science and on the inevitable comparison with Kanf s class of synthetic-a priori propositions or judgments, see Colman, Moral Philosophy, especially 157-62. 17

20

LOCKE'S

MORAL

THEORY

rality is possible. Locke may have been (or have become) skeptical about o u r ( a n d his) ability to actually produce without great diffi­ culty a full demonstration of the whole of morality. But h e cer­ tainly h a d a n idea of the form that demonstration would take a n d of some of the connections between ideas that could b e established (even if h e t h o u g h t a full demonstrative science of ethics to be a problem). In fact, Locke offers us a fairly substantial sketch of the basis of his demonstration in essay 4 of his Essays on the law of Nature. Strictly speaking, t h e heart of the demonstration of morality is "hypothetical" in form—that is, Locke can first establish conclu­ sions exclusively from the relations of ideas, without any concerns about w h e t h e r the ideas in the demonstration are ideas of any real things in t h e world. This, after all, is the form of mathematical demonstrations, which "concern n o t the existence" of their ob­ jects; a demonstration involving a square or circle proceeds " t h e same, w h e t h e r there be any square or circle existing in the world or n o . " Similarly, Locke believes, w e can display the necessary connections b e t w e e n ideas that lead to the rules of morality (which forbid or enjoin action) without concern for "real existences," since we k n o w these rules "will b e true in reality of any action that ex­ ists conformable t o " them (E, 4.4.8). O u r senses will then inform reason about the real application of moral rules that can first be derived strictly through the use of reason (the "voice of God in m a n " [I, 86}).^ W h e n Locke sketches his a r g u m e n t in the Essays, the evidence of our senses a n d the operations of reason are presented together, but w e can s e p a r a t e t h e m for clarity's sake. Suppose, first, a " p o w ­ erful and wise creator," w h o creates brute beasts, mortal, rational beings, a n d a n erivironment to support their lives. It follows sim­ ply from the ideas of these things, Locke believes, that the beings created are rightly subject to the authority of the creator ("for w h o will deny that t h e clay is subject to the potter's will" [ELN, 157]). We can conclude further that the creator has intentions with re­ gard to his creatures, for being "wise, it follows from this that h e has not created this world for nothing a n d without p u r p o s e " (ELN, 157). The mortal beings ("so curious a n d wonderful a piece of w o r k m a n s h i p " [L 86]) would n o t h a v e been given reason, for » Here, of course, w e speak only of the logical order of the demonstration, not the historical or psychological order. Our ideas of objects and actions in the world to which the demonstration applies will obviously precede historically their e m ­ ployment in a n y proof of morality. 21

CHAPTER

ONE

instance, unless they were intended to use it (it being unwise to decorate creations pointlessly) (ELN, 117). But if w e k n o w t h a t t h e creator is a rightful superior w h o wills that his creations perform in certain w a y s , this is sufficient to conclude that the creator's will is a law for those creations (since a law is simply "the decree of a superior will," laying d o w n " w h a t is a n d what is not to b e d o n e , " which "binds m e n " a n d is "sufficiendy k n o w n " to them [ELN, 111-13J ). The specific rules of this law are whatever rules m u s t be followed to best achieve the creator's intentions for his crea­ tures. 19

All of this, Locke believes, can be s h o w n by reason, through the discovery of t h e connections b e t w e e n t h e ideas employed in t h e demonstration. But the demonstration is t h u s far only hypotheti­ cal, logically i n d e p e n d e n t of the real existence of things in the world. If s u c h a creator a n d s u c h creatures exist, then the creatures have certain obligations. The evidence of our senses then com­ pletes the proof. This evidence reveals the natural world a n d ourselves as mortal, rational beings. From the regularity a n d per­ fection of nature a n d from h u m a n nature "it is undoubtedly in­ ferred that there m u s t be a powerful a n d wise creator of all these things" (ELN, 153; see also, e.g., I, 53). We have only to follow the remainder of the hypothetical proof to reach the conclusion 20

21

w

The last of these features of law—that it be promulgated—can be inferred from the terms of the demonstration if w e add (as Locke dearly wishes to) that reason is sufficient for the creatures to k n o w their creator's will. Every person (rational in­ dividual) is capable of employing reason to discover at least die basic content of God's will: "the same spark of the divine nature and knowledge in man which, making him a man, s h o w e d him the law he was under." Reason is the "candle of the Lord," although o n e can "put out" or "neglect" the light of reason (R, 162 [231]). Reason is humankind's "only star and compass," which makes them "al­ most equal to angels" (I, 58) and distinguishes them from the beasts (E, 4.17.1). All of this suggests, of course, that Macpherson's reading of Locke as defending dif­ ferential rationality based on social class, cannot be correct (see Ryan, "Locke and the Dictatorship," 240 - 41; Ashcraft, Locte's Two Treatises, 249 -53). See note 99 be­ low, w

The Essays are concerned to argue that the law of nature is known by reason through sense experience (and not by inscription or tradition). See Yolton, Locke, 48. God "hath left so many footsteps of himself, so many proofs of his being in every creature, as are sufficient to convince any w h o will but make use of their faculties that way" ("Knowledge, Its Extent and Measure," 166-67). The proofs of G o d ' s existence employed here are familiar, conforming to standard versions of the "argument from design" and the "anthropological argument" (which is closely re­ lated to Descartes' "causal argument"). (See Tully, Discourse, 38-39; Herzog, With­ out Foundations, 91-93.) These are the arguments (Locke claims) that rely most di­ rectly o n sense-experience. In other places, Locke suggests other paths t o k n o w l e d g e of God. Locke's main discussion of these issues, of course, is in E, 4.10.1-19. 21

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that man is in reality bound to follow God's will, which is the law of nature: T h u s , ''our faculties . . . plainly discover to u s the being or* a God, arid the knowledge of ourselves, e n o u g h to lead u s into a full a n d d e a r discovery of our d u t y a n d great concernment" (E, 4.12.11). Trie form of the demonstration of morality, then, is a s follows; 32

(1)

33

O u r senses (with reason) reveal the existence of God.

(2) . O u r senses (with reason) reveal the existence of m a n ("ourselves, as understanding, rational creatures") a n d that m a n w a s created by God. (3) T h e relation of God to m a n g r o u n d s a d u t y for m a n t o d o God's will. (4) The n a t u r e of God a n d h u m a n nature together reveal the "principle" of God's will for m a n (ELN, 157). (5)

From t h e principle of God's will and the empirical con­ ditions of h u m a n life (revealed by our senses), o u r spe­ cific moral duties follow.

On the strength of this style of argument, Locke feels able to as­ sert: It s e e m s t o m e t o follow just as necessarily from t h e nature of m a n that, if h e is a man, h e is b o u n d to love a n d worship God a n d also (to fulfill other things appropriate to the rational na­ ture, i.e., to observe the law of nature, as it follows from the nature of a triangle that, if it is a triangle, its three angles are equal to t w o right angles. (ELN, 199) (

24

I will ignore here many of the obvious problems faced by Locke's d e m o n s t r a t i o n . T w o problems, however, m u s t at least b e 25

n

From which, together with our inability to know the "real essences of bodies," Locke concludes "that moralitv is the proper science and business of mankind in general" (E, 4.12.11). This same "style" of demonstration is suggested by Locke in other, later works. As w e have seen, the Essay makes passing reference to the basic elements of the demonstration (E, 4.3.18). So does the Ffrst Treatise (e.g., in I, 86), with g e s ­ tures in similar veins in the Second Treatise. "The duties of mat law, arising from the constitution of his very nature, are of eternal obligation; nor can it be taken away or dispensed with without changing the nature of things, overturning the measures of right and wrong, and thereby introducing and authorizing irregularity, confusion, and disorder in the world" (R, 136 [180]). Steps (1) and (2) of the demonstration are, of course, highly controversial (at the very least); but I cannot address them here, beyond noting that a secular foun­ dation for Locke's moral theory (if possible) would have the advantage of avoiding 3 3

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mentioned in passing. First, it may seem that Locke's employment in the demonstration of substance ideas like our idea of " m a n " m u s t u n d e r m i n e his strategy. For will not our knowledge of our obligations (the goal of the demonstration) be as uncertain as our knowledge of m a n generally (whose real essence w e cannot know)? T h e problem here relates to a common worry that natural law theory lacks a convincing account of the essential features of h u m a n beings, from which to derive moral law (a worry I will ad­ dress m o r e directly in 2.5). Locke's reply to such concerns seems to b e that in t h e demonstration of morality w e u s e not t h e natural idea of m a n , but rather a conventional, moral idea: " w h e n w e say that m a n is subject to law, w e mean nothing by m a n but a corpo­ real rational creature: what the real essence or other qualities of that creature are in this case in n o way considered" (E, 3.11.16). This move, of course, preserves the "certainty" of Locke's moral conclusions. While w e may be unable to decide w h e t h e r some u n ­ fortunate creature counts as a man in the natural s e n s e , w e n e e d only k n o w that the creature is corporeal a n d rational for the con­ clusions of Locke's argument to hold. The obvious consequence of this point, of course, is that the precepts of natural law that cond u d e Locke's demonstrations can b e taken to apply n o t to h u m a n beings (of which w e have no clear idea), b u t only to rational, cor­ poreal beings—a class that neither includes all h u m a n beings nor is confined solely to h u m a n beings (in principle, at least). This is, 26

27

28

these thorny steps. Steps (1) and (2) were not, as I noted earlier, as controversial for Locke's audience; indeed, the first sentence of the Essays finds Locke saying "I assume there will be n o one to d e n y the existence of God" (ELN, 109). 1 will Also s a y not much more about problems in the demonstration caused by Locke's use of questionable epistemological assumptions. * See Grant's discussion of Locke's concept of "man" in Liberalism, 28-31. Children, changelings, and monkeys (E, 3.11.16) are Locke's examples of this' uncertainty about man "in a physical sense." Elsewhere Locke p o s e s the following question; "if a woman should bring forth a creature perfectly of the shape of a man, that never s h o w e d any more appearance of reason than a horse, and had n o artic­ ular language, and another w o m a n should produce another with nothing of the shape, but with the language and reason of a man, I ask which of these you would call by the name man?—both or neither" (King, Life, 1:162). The answer, for Locke's purposes in the demonstration, must be that the true man (in the moral sense) is the latter. 2" On the face of it, alien rational beings would appear to fall under natural law, for the same reasons that Locke's monkey "would no doubt be subject to law, and in that sense be a man" (E, 3.11.16). Whether or not angels (noncorporeal rational beings) are within the province of the law is unclear. I should note here that lack of knowledge of the real essence man is not the only problem of this sort in the demonstration. We also lack clear and certain knowledge of the real essence of God. 2 7

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as w e shall see, of considerable importance in trying to u n d e r s t a n d the moral status of children, the insane, a n d others w h o seem to lack the rationality that would make the precepts of natural law apply to them, A second problem is this: Locke's argument for the certainty of moral knowledge t u r n s importantly on his claim that moral ideas (like mathematical ones) are purely conventional, not patterned af­ ter any real object i n nature. His derivation of the content of nat­ ural law, on the other h a n d , proceeds from objective facts about the nature of Gdd and h u m a n nature. What, w e m a y ask, is to bring thesis'''tWo strands of the argument together? That is, while we can discern t h e connections between o u r moral ideas in a w a y sufficient to produce certain demonstrations, w h y mightn't our ideas (and the moral conclusions w e generate) turn out to have nothing at all to d o with the objective will of God or with facts about h u m a n nature? Locke's answer can only be that while this could have h a p p e n e d , it did not. O u r moral ideas, although purely conventional, are n o t silly or arbitrary. They are framed concern­ ing those matters that are central to the peaceful and h a p p y living of our lives. A n d this, of course, is God's concern for u s as well. The two strands of the argument, then, will come together; "it is no w o n d e r " that p u r moral ideas "everywhere correspond" to the requirements of " t h e law of G o d " (E, 4.28.11). As far as I can see, however, it w a s neither logically n o r physically necessary that this be the case. 1

29

Of the many rerraining problems facing Locke's demonstration, I will focus in this chapter only o n those involved in steps (3)-(5) of my sketch of the argument. It is in this part of the demonstra­ tion that w e cart find revealed the distinctive character of Locke's divine will theory of morality, a n d the method of applying this theory to the specific moral a n d political problems with which I am chiefly concerned. I begin with a query about step (3) of the demonstration: w h y are w e b o u n d to do God's will? 30

n

Colman seems to think that these strands are necessarily connected: "The law and our moral notions are . . . bound together" (Moral Philosophy, 136). Baier wor­ ries about these aspects of Colman's argument in her review of his book (616-17). POT suggestions about this problem similar to my o w n , see Tully, Discourse, 18, 2 3 24, 26; and Grant, Liberalism, 27-39. Notice however, that if our moral notions are in fact patterned o n divine law, as Locke sometimes suggests (e.g.. King, Life, 1 3 7 0 - 7 1 ) , there will be difficulties in portraying these notions as archetypes. * This is a question about which Locke and others clearly were concerned, con­ trary to Finnis' contention that for such theorists the question "has no bite" (Natu­ ral Law, 405). 25

CHAPTER

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1.2. Why We Ought to Obey God Suppose w e could s h o w that G o d exists a n d t h a t h u m a n k i n d is His creation. The next step of the demonstration is in a way even harder, for it makes the move from " i s " to " o u g h t . " What is it about the relation of God to persons that makes it obligatory that we d o as G o d wills? In the Essays, Locke mentions three g r o u n d s of our obligation to obey God. H e begins b y saying only that "this obligation seems to derive partly from the divine w i s d o m of t h e law-maker, a n d partly from t h e right which t h e Creator h a s over His creation" (ELN, 183). But God's power to p u n i s h offenders (those w h o break the law of nature) also seems to have a role as a third source of obligation: "not all obligation seems to consist in . . . that p o w e r which can coerce offenders a n d p u n i s h t h e wicked" (ELN, 183; m y e m p h a s i s ) . These same three sources of God's authority over us (and of our duty to obey) are repeated in the Essay. Of God's "right of creation" (ELN, 185), wisdom (and goodness), a n d power, only the first of the three seems to b e em­ phasized by Locke in the Treatises: h u m a n beings "are his p r o p ­ erty, w h o s e w o r k m a n s h i p they are, made to last during his, not one another's p l e a s u r e s " (II, 6). H o w seriously should w e take these various suggestions? It might be natural to s u p p o s e that Locke's special emphasis in the Treatises o n God's property in humankind (His right of creation) indicates that this w a s h i s considered view o n t h e ground of o u r duty to obey God. O n the other hand, Locke's remarks on law a n d duty in his other works strongly emphasize the p o w e r to impose sanctions: " w h a t duty is, cannot be understood without a law; nor a law b e k n o w n or s u p p o s e d without a lawmaker, or without re­ ward a n d p u n i s h m e n t " (E, 1.2.12); "moral good a n d evil, then, is only the conformity or disagreement of our voluntary actions to some law, whereby good or evil is d r a w n o n u s , from the will a n d power of the lawmaker; which good and evil . . . is that w e call reward a n d p u n i s h m e n t " (E, 2.28.5). Passages like these m a y sug­ gest to m a n y that G o d ' s law is obligatory for persons only (or 31

32

31

The "not aU" construction suggests that at least some of the obligation derives from God's power, contradicting Pangle's claim that mentions of divine reward and punishment are absent from all of Locke's works but the Essay {Republicanism, 204). God has the right to make law for us because " w e are his creatures: h e has g o o d n e s s and w i s d o m to direct our actions to that which is best: and h e has power to enforce it by rewards and punishments of infinite weight and duration in an­ other life" (E, 2.28.8). 3 2

26

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largely) because of G o d ' s power to impose sanctions o n u s . Is Locke here e r h b r a d n g a sanction theory of obligation, of t h e sort associated with.the classical legal positivists (e.g., Hobbes, Austin, Bentham)? According to the (most basic) sanction theory, "obliga­ tion" is simply defined as "liability to a (significant) threat of sanc­ tion for nonperformance." Is this Locke's view? There are several good reasons to suppose that it is not. In the first place, t h e (simple) sanction theory of obligation is not even remotely plausible/! a n d Locke seems to see this. As H a r t has ar­ gued in this century, t h e sanction theory blurs the distinction be­ tween being merely "obliged" (compelled) to perform (as w h e n you are obliged to surrender your wallet to a g u n m a n ) a n d being "obligated" to d o so (as w e certainly are not in the g u n m a n case). Locke similarly compares the situations of a captive "constrained to the service of a p i r a t e " and a subject "giving obedience t o a ruler," arguing that "fear of p u n i s h m e n t alone" imposes no obli­ gation in the former case (ELN, 185). In the second place, a sanc­ tion theory of obligation has political implications that w o u l d be unacceptable to Locke (and which would r u n directly counter to the teachings of the Second Treatise). Locke cannot espouse a the­ ory of obligation o n e of whose consequences is that any powerful maker of civil 'law can obligate u s to obey simply by threatening punishment for disobedience. The consent of the governed, not the power of the governor, must be the ground of our obligation to obey civil law. There is, of course, other (more direct) textual warrant for re­ jecting any reading of Locke as a sanction theorist. For instance, the definition of "obligation" Locke accepts concerns only "ren­ dering w h a t is d u e , " with no mention of sanctions (ELN, 181). And while Locke distinguishes three kinds of laws "with their three different enforcements" (cu'vine law with God's sanctions, civil law with legal sanctions, a n d the law of opinion with social sanctions), only o n e of these laws, divine law, determines moral obligations (E, 2 . 2 8 . 6 - 8 ) . The other laws, even t h o u g h they are backed by very real sanctions, obligate u s only insofar as God's 33

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» Concept of Law, 8 0 - 8 1 . In the Second Tract (221) Locke had distinguished four kinds of law: divine (moral), political (human), fraternal (the law of charity), and monastic (private) law. * The sanctions of the law of opinion, however informal, are a very serious mat­ ter for Locke. "The principal spring from which the actions of m e n take their rise," Locke wrote in 1678, "seems to b e credit and reputation" (King, Life, 1:203). This same point is emphasized elsewhere in Locke (e.g., Education, 56, where esteem and disgrace are described a s "the most powerful incentives to the mind"; and E, 54

27

CHAPTER

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will allows it. O t h e r lawmakers, n o matter h o w powerful/ can only " b o r r o w " the authority that is delegated by God (ELN, 187). There is clearly meant to be something special about God's com­ m a n d s a n d the divine sanctions attached to t h e m . The m o s t plau­ sible explanation of this is that w e h a v e an antecedent obligation to obey God's c o m m a n d s , based on something other than His power to compel compliance, which explains w h y w e are b o u n d to obey God, b u t n o t other powerful lawmakers. Locke, for in­ stance, maintains (clearly cUstinguishing the right to command from the p o w e r t o compel) that a lawmaker ''has a superiority a n d right to ordain, and also a power to reward and p u n i s h . " A law­ maker is a "superior p o w e r to which [one] is rightly subject" (ELN, 151; my emphasis; see also ELN, 1 5 3 - 5 5 , 1 8 1 - 8 3 , 189; a n d Second Tract, 223): 36

37

A m a n can never be obliged in conscience to submit to a n y power, unless h e can be satisfied w h o is the person w h o has a right to exercise that power over him. If this w e r e not so, there would be no distinction between pirates a n d lawful princes, h e that has force is without any more a d o to b e obeyed, a n d crowns and scepters would become the inheri­ tance only of violence a n d rapine. (I, 8 1 ; see also II, 134, 176, 184) God's sanctions are necessary to give divine law a " p o i n t " or " p u r ­ p o s e " (E, 2.28.6; ELN, 173); but they are not w h a t makes divine law obligatory. 38

2.28.12, where people are said to worry more about reputation than about the sanc­ tions of God or the magistrate). See Parry, lohn Locke, 45; and Tarcov, Locke's Edu­ cation, 101-2. It is God "from w h o s e authority all laws d o fundamentally derive their obli­ gation, as being either immediately enjoined by him, or framed by some authority derived from him" (First Tract, 124). See also Second Tract, 226. "Of Ethics in General," section 10. Those familiar with the work of Hobbes (or of Pufendorf) may recognize there a parallel problem of interpretation. Hobbes, of course, has a long-standing repu­ tation as a sanction theorist of obligation; but this reputation seems in o n e way undeserved. For while in Hobbes all laws obligate us and are commands backed by sanctions, a law is not just "a command of any man to any man, but only of him w h o s e command is addressed to one formerly obliged to obey him" (Leviathan, chap­ ter 26, paragraph 2; my emphasis). Thus, our obligation to obey civil law derives not from its threat of sanctions, but from our consent to the authority that makes the law (which grounds our antecedent obligation to obey). Of course, in the e n d Hobbes' theory may just be extensionally equivalent to a simple sanction theory, for A's power to coerce B (at least in cases of extreme disparity of power) s e e m s in Hobbes to entail B's consent to A's authority over him (which in turn entails B*s obligation to obey A). Hobbes writes (claiming that the child's obligation to obey M

3 7

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What are bur possible alternative explanations of God's author­ ity over man? Perhaps it is God's wisdom (and goodness) that makes His will obligatory for us, or His wisdom combined with His great power. But again w e can ask whether Locke would be happy with the earthly consequences of such a view. Could h e accept the implication that any very wise (and good), or wise a n d powerful person has natural authority over a n d can make binding law for the rest of us? O n the face of things, this is a kind of claim that Locke's consent theory seems to preclude: nothing is able to put a person "into subjection to any earthly power, but only his own consent" (II, 119). Locke does, of course, mention a "just precedency" that virtue a n d "excellency of parts and merit" (among other things) m a y give some persons; but he hastens to add that this is not meant to deny that we are all equal "in respect of jurisdiction or dorrtinion, one over another" (II, 54). A n d Locke even refers to "God-like" princes or rulers (TJ, 42, 166), but again without suggesting that their authority is based o n anything b u t the consent of their subjects. Locke could, of course, argue that 39

i-

—

1

—

1

"

"

his parents is based in "the child's consent" [Leviathan, chapter 20, paragraph 4]): 'Tor it ought t o obey h i m by w h o m it is preserved, because preservation of life being the end for which one man becomes subject to another, every man is supposed to promise obedience to him in whose power it is to save or destroy him" (chapter 20, paragraph 5; m y emphasis). Perhaps, then, our obligation to obey God is also based in our consent, providing further support for Hobbes' claim that there is "no obligation o n any man which arises not from some act of his o w n " (chapter 21. paragraph 10). Nothing like this, however, goes on in Locke. Coerced consent for Locke is not consent at all (D, 186). S o while in Locke all genuine laws must involve the threat of sanctions, it is not this threat that explains their binding force: "We should not obey a king just out pf fear, . . . but for conscience' sake, because a king has com­ mand over us by right" (ELN, 189). The command of a superior is the "formal cause" of law's obligation, w h i c h is not to say that the obligation is constituted by the fear of punishment (see Tuck, Natural Rights Theories, 93). It is possible, of course, that Locke believes that not just any liability to sanctions constitutes an Obligation, but only liability to sanctions of infinite weight and duration. To qualify the sanction theory in this way, however, deprives that theory of its real force, and amounts to little more than the unhelpful claim that liability to sanctions imposed by God confltitutes.obligation. One might as well just say, without explanation, that w e are obligated to obey God. Interestingly, in light of the comparison I am drawing between Locke and Hobbes, Hobbes seems to have thought that the "in­ finite" character of God's sanctions did connect them to obligations in some im­ mediate fashion: 'To those w h o s e power is irresistible, the dominion of all men adheres naturally by their excellence of power; and consequently it ts from that power that the kingdom over men, and the right of afflicting men at his pleasure, belongs naturally to God Almighty—-not as creator and gracious, but as omnipo­ tent" (Hobbes, Leviathan, chapter 31, paragraph 5). * Locke is, admittedly, less than clear in II, 166. But I gather that since Locke rejects "that argument, that would prove absolute monarchy the best govern­ ment," he cannot be intending to support the claim that "God-tike princes indeed 29

CHAPTER

ONE

only perfect w i s d o m or virtue gives dominion, so that only God, not any God-like person, has natural authority. But, as in the case of God's mfinite power, this would a m o u n t more to simple asser­ tion t h a n to argument or explanation (its being unclear w h y suffi­ cient, rather than perfect, wisdom or power would not be enough). It seems, then, that w e are naturally driven back to our first sug­ gestion: that God's special authority over u s (and our antecedent obligation to obey His commands) derives from His property in us, from His right of creation. This is, as w e saw, the only claim about God's authority that is clearly emphasized in each of Locke's major treatments of the problem. A n d there m a y seem to be good reason for Locke to opt for this brie of argument, given his appar­ ent desire to establish the uniqueness of our obligations to God. Mortal lawgivers can be powerful a n d impose terrible sanctions; they can also be extremely wise a n d virtuous. But they cannot claim to have created us or to have a creator's property in u s . If our obligation to obey God stems from His right of creation, there will b e n o (possibly objectionable) earthly parallel obligations. Locke's claim for the ground of our obligation to obey God would not, then, conflict in the ways w e have seen with his consent the­ ory (which accounts for all obligations to mortal superiors). The only plausible candidates for mortals with the right of creation over other mortals would be parents, w h o might claim to have created their children. But Locke is clear that God's "fatherhood is such an o n e as utterly excludes all pretence of title in earthly par­ ents; for h e is King because h e is indeed maker of us all, which n o parents can pretend to be of their children" (I, 53). God's right of creation, then, seems to b e perfectly sui generis; a n d this fact w o u l d a p p e a r to serve well Locke's project in political philosophy. Things are not, however, so rosy for Locke as they seem. Let u s recall the structure of Locke's argument (in n, 6). All persons are b o u n d by natural law to preserve themselves a n d others, a n d for­ bidden " t o harm another in his life, health, liberty, or posses­ sions." This is because " m e n being all the workmanship of o n e 40

had s o m e title to arbitrary power." It is worth mentioning that w h e n Locke quotes Hooker at length (H, 5), he does not include the portion of the passage in which Hooker acknowledges a right to rule for those w h o are most rational. Sigmund comments o n this fact (Natural Low, 84). *° This is a reasonably common claim in recent literature on Locke. See, for ex­ ample, Colman, Moral Philosophy, chapter 2; Tully, Discourse, chapter 2; Gauthier, "Why Ought One Obey God?"; Lenz, "Locke's Essays"; Ashcraft, Revolutionary Politics, chapter 2. 30

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onuiipotent, a n d infinitely wise Maker . . . they are his property, whose w o r k m a n s h i p they are, m a d e to last during his, not one anothers pleasure." We must not h a r m ourselves or others. Why? Because w e are all G o d ' s property, a n d everyone k n o w s that one mustn't h a r m or destroy another's property. But h o w does every­ one know this? Presumably, according to Locke, only because it is one of the precepts of natural law that w e m u s t not harm others ("in their possessions"). And here w e have at least the appearance of a very tight circle. Part of the conclusion of the argument (that portion 6f natural l a w that includes the rules of property) seems to also function in it as a premise (to explain why w e m u s t do God's will). There are several ways out of this predicament. Locke could withdraw t h e rules of property from the list of precepts of natural law in need of justification. H e might then treat t h e m as self-jus­ tifying rules a n d use them at the foundation of his theory, to ex­ plain w h y w e m u s t obey God. But aside from the implausibility of regarding such rules as self-justifying, however, this strategy would seem to involve setting certain principles of right above (or independent of) G o d (a problem to which I will return momentar­ ily). A second tactic Locke might employ could w e d g e o p e n the circle by claiming that the rules of h u m a n property justified by Locke's argument, are not the same rules as the rules of divine property that explain our general obligation to obey God. When Locke says w e m u s t respect God's "property," on this line, h e would use the w o r d "property" differently than w h e n h e says h u ­ mans must n o t harm one another in their "property." This strat­ egy, of course, would also involve acknowledging independent principles of right; b u t worse, it makes the nature of our obligation to God utterly mysterious. A n d whichever strategy w e employ o n Locke's behalf, the argument of II, 6 looks confused. The problems for Locke (and for m a n y divine will theories of morality) that I have thus far identified can p e r h a p s b e summa­ rized as follows. O n e might wish to explain our obligation to obey God in a convincing fashion by showing it to be a species of some familiar and believable kind of obligation, a n obligation w e will take to be particularly clear and easy to understand from our ev­ eryday lives. T h u s , w e might say w e are obligated to obey God because of His wisdom, goodness, or power, or out of gratitude for the benefits H e provides u s , or out of respect for His property in u s . But all of these kinds of obligation (if, indeed, they are all kinds) are themselves requirements of the very natural law whose 31

CHAPTER

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obligatory character Locke is seeking to explain, as well as being (in m a n y cases) obligations whose instantiations in earthly cases would b e unacceptable to Locke. A n d if Locke responds by mak­ ing the obligation to obey God utterly sui generis, h e will puzzle his audience a n d leave t h e m unconvinced. His answer will seem to a m o u n t to a simple assertion of a special a n d unexplainable obli­ gation to obey G o d (or to obey " b e i n g s " with characteristics only God could possess), a n d his efforts to justify his position will then seem wasted. These difficulties, of course, also relate to some other problems faced b y divine will theories of morality t h a t are p e r h a p s more fa­ miliar (and about which I will accordingly say rather less). We h a v e seen that for Locke moral right a n d w r o n g presuppose the existence of a law (divine law), a n d that law is the c o m m a n d of a rightfully superior will (in this case, t h e will of God). But in spec­ ifying the relation of God's commands to morality, Locke m u s t deal with w h a t is sometimes called "the dilemma of volunta­ rism." Are acts right (or wrong) simply because they are com­ m a n d e d (or forbidden) by God? O r d o e s G o d c o m m a n d u s to per­ form these acts because they are right? If the former is the case (the voluntarist position), of course, there can b e n o morality with­ out God; but, unhappily, what morality there is with God seems perfectly arbitrary. G o d could have m a d e anything a t all right or wrong, or changed right a n d wrong as H e pleased (since there is n o i n d e p e n d e n t standard of lightness by which to assess His com­ m a n d s or distinguish them from the c o m m a n d s of an imposter). Mere will seems insufficient as the basis of morality. O n the other h a n d , if the latter is the case (the intellectualist position), there is some external standard of morality (like those referred to above) to which God m u s t conform His will a n d which is both i n d e p e n ­ dently obligatory and (in principle) discoverable i n d e p e n d e n t of any knowledge of God's will. While God m a y see the right m o r e clearly than w e (so that w e do well to take His c o m m a n d s as good advice), a n d a d d His threat of sanctions to help enforce the right. His will or c o m m a n d does not make the right. In that case, of course, the project of grounding morality in God's will seems (as Kant argues) to have short-circuited itself (although this is not the intellectualists' intention). God becomes superfluous in the d e m 41

" For a clear statement of this dilemma (along with a rejection of religious m o ­ rality), see Nielsen, "Some Remarks." The problem here is, of course, dosely re­ lated to that of Plato's Euthyphro. 32

LOCKE'S

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THEORY

i

onstration of morality, as Grotius (notoriously, if reluctantly) con­ cedes: Whatever is clearly at variance with [a well-tempered] judg­ ment is u n d e r s t o o d to be contrary also to the law of nature, that is, to t h e n a t u r e of m a n . . . . What w e have been saying would have a degree of validity even if w e should concede that which cannot be conceded without the utmost wicked­ ness, that there is n o God, or that the affairs of m e n are of n o concern to .him. 42

'

i

Where Locke s t a n d s on these questions is again far from clear. He most frequently speaks like a voluntarist, urging (as w e have seeh) a necessary connection between morality a n d (divine) law. The "true g r o u n d of morality . . . can only b e the will a n d law of a God, w h o sees m e n in the dark, has in his h a n d s rewards a n d punishments, a n d power e n o u g h to call to account the proudest offender" (E, 1.2.6); "The taking away of God . . . dissolves all" (L, 156). O n the other hand, Locke seems disinclined to admit that morality is, as a result, perfectly arbitrary. Indeed, h e goes so far as to assert that " G o d himself cannot choose w h a t is not good"; God's will is "determined b y w h a t is best" (E, 2.21.50).** A n d Locke argues (seemingly with Grotius) that since " w h a t is proper n o w for a rational n a t u r e . . . m u s t n e e d s b e proper forever certain duties arise out of necessity a n d cannot b e other than they are" (ELN, 199). If morality is derivable from a n immutable (ratio­ nal) h u m a n nature, God would seem to be superfluous to the demonstration of morality. It is easy to become convinced b y such passages that Locke is simply confused and inconsistent on these issues, or at best am­ bivalent. * But while this view may be largely true, I think it would be a mistake to b e led in this way away from the predominant strain of voluntarism in Locke's writings.* Even w h e n Locke is 1

4

5

41

De Jure Belli ac Pads, prolegomena, sections 9, 11. For discussions of the proper reading of these claims in Grotius, see Tuck, Natural Rights Theories, 7 6 - 7 7 ; Firtnis, Natural Law, 4 3 - 4 4 . ° God "cannot err, and will not deceive" (E, 4.18.8). See Dworetz, Unvarnished Doctrine, 153-54. ** See Von Leyden, "Introduction," 51-56; Aaron, John Locke, 265-67; Soles, "Intellecrualism," 64, 70, 78. Among those w h o favor an inteHectualist reading of Locke, Herzog argues that our duty to obey God's commands is explained in Locke by an independent prin­ ciple of gratitude (Without Foundations, 101-7). But, as w e have seen, Locke's most explicit pronouncements o n the subject d e n y this. Soles urges an Intellectualist reading of the Second Treatise, primarily on the strength of the kinds of arguments 43

33

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ONE

busy d a i m i n g that morality is derivable from "rational n a t u r e / ' for instance, h e feels obliged to remind u s that this is not, m e a n t to imply that " G o d . . . could n o t have created m a n differently" (ELN, 199). God might have m a d e morality different by making h u m a n k i n d different; morality is only necessary for u s given that God chose to m a k e u s as H e did. Even if God's choice w a s uniquely (and constrainingly) wise a n d best, Locke seems always to emphasize the choice over the deterrnination. This is n o t m e a n t to assert that Locke w a s particularly clear in confronting these problems; indeed, his texts seem to reveal a decided lack of clarity. I m e a n only to d a i m that w h e r e Locke expresses firm convictions, they seem to be voluntarist in character. The one position from which h e seems never to (consciously) waver is that the source of all moral obligation is G o d ' s will, that a n attempted derivation of morality that ignores God's c o m m a n d s (and sanctions) can never arrive at any obligations at all. 46

But if Locke's position is intended b y him to be staunchly vol­ untarist, h e seems still obliged at least to deal with the one prob­ lem o n which w e have focused in this section. Why ought w e to obey God? What is the ground of our obligation to do as H e wills? A s w e h a v e seen, Locke's answer s e e m s to b e that w e m u s t obey God's c o m m a n d s not because of their character as wise or powerbacked, but because w e have an antecedent obligation to obey, correlative with God's right of creation. But with t h e "dilemma of voluntarism" in mind, w e are entitled to ask w h e n c e came this right of creation. What moral code or system i n d u d e s this right a n d h o w is it justified? The right of creation cannot b e part of a morality i n d e p e n d e n t of God, but neither can it be a part of God's w e will consider below in 1.3. ("Intellectualism"). But while it is impossible to d e n y that many of Locke's arguments in the Treatises are logically independent of his theological commitments, a purely intellectualist reading of the Treatises simply cannot be convincing in the face of passages like I, 86. ** This is Colman's view of Locke as well (Moral Philosophy, chapter 2), a view shared by {among others) Ashcraft, Locke's Two Treatises, 3 9 - 4 0 ; Shapiro, Evolution of Rights, 103-5; Riley, Will and Political Legitimacy, 8 6 - 8 7 ; Abrams, "Introduction," 8 8 - 9 1 ; Rogers, "Locke," 148, 151-52; Drury, "John Locke," 535-36, 5 4 3 - 4 4 . That the issues here are not especially clear (due largely to the ambiguity of terms like "voluntarist") can be seen in the fact that from virtually the same textual data, Colman finds Locke to be a consistent voluntarist, Singh finds him not to be ("John Locke and the Theory of Natural Law," 113), and Tully finds in Locke a compro­ mise between the voluntarist and the inteUectualist (rationalist) positions (Dis­ course, 41). While Tully seems right about what Locke's texts actually say, I think Locke's most basic commitment was to voluntarism. For other discussions of these issues, see D u n n , Political Thought, chapter 14; Mabbott, John Locke, chapter 12; YoN ton, Compass, especially 167-69. 34

LOCKE'S

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THEORY

moral law (even G o d could not m a k e the law that gives Him a u ­ thority to m a k e law, even if the law w e r e somehow a " m e t a l a w " that applied only to Him). O n the face of it, this seems to exhaust the possibilities. But p e r h a p s Locke would not b e distressed by this apparent pre­ dicament. The right of creation seems for Locke to simply be t h e end of the explanatory chain, the o n e moral fact for which no fur­ ther justification can b e given. It is simply a n d finally true that "all things are justly subject to that by w h i c h they have first been m a d e and also are constantly preserved" (ELN, 185); w e are subject to God "in perfect justice and b y utmost necessity" (ELN, 187). We must just see t h e obvious truth of these claims; they are m e a n t to be self-justifying or in need of n o justification at all. That we will see this seems to b e taken for granted b y Locke in roughly the same way that h e takes for granted a general acknowledgment of God's existence. M o d e r n readers, of course, are b o u n d to be less than satisfied here, a n d Gauthier takes this to simply b e t h e mea­ sure of the vast gulf between our perspective a n d Locke's: 47

From our standpoint the derivation of m a n ' s obligation to obey G o d from G o d ' s creation of m a n requires argument. Cre­ ation a n d obligation are not mtrinsically or necessarily con­ nected. But this is the fundamental measure of the ciifference between Locke's conceptual framework and our o w n . His framework is theocentric; everything d e p e n d s o n G o d . . . . N o a r g u m e n t ;from creation to obligation is n e e d e d from Locke's perspective. 48

But the troubling, aspects of Locke's position are p e r h a p s even more severe t h a n Gauthier's remarks suggest. The problem is not only that the m o d e r n reader sees n o necessary connection be­ tween creation a n d obligation. Even if w e did see this connection as Locke sees it, w e would w a n t to apply this connection in earthly cases. The parents w h o "create" a child, or a scientist w h o "cre­ ates" o n e in a test tube (or o n a laboratory table, for that matter) In th« manuscript "Ethiea B" (MS c28, fol. 141), Locke suggests "dependency" a s the source of all law a n d obligation. * Gauthier, "Why Ought One Obey God?" 431-32. Colman s e e m s completely untroubled by these problems, seeing God's right of creation as the perfect tool to answer the mtellecrualist objections: "the right of creation . . . is both independent of law and intrinsic to G o d " (Moral Philosophy, 46). What is not clear from Colman's argument, however, is w h y it would not b e just as appropriate to claim that the right of creation s h o w s that "Locke held a standard of right independent of God's will" (Lenz, "Locke's Essays," 110). 35

CHAPTER

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will seem to someone convinced of the connection between cre­ ation a n d obligation to have authority over "their creatures" (we can even imagine, if w e wish, fiendish, science-fiction arrange­ m e n t s by which the creations are "constantly preserved" by their creators, to extend the parallel with God's right of creation). But this apparent consequence of the position will never d o for Locke. O n l y G o d really creates living beings; it is only b y God that things have "first been m a d e " ; so only God can have the right of creation over living beings. A n d n o w Locke comes dangerously dose to simply asserting God's authority without a n y further substantial comment. It is n o t "creation" or " d e p e n d e n c y " in our familiar, or­ dinary senses that explains God's authority. It is only God's kind of creation that will d o . His right over us is t h u s utterly sui generis, g r o u n d e d in traits or capabilities that only G o d could possibly p o s ­ s e s s . We m u s t obey God because H e is God. 49

1.3. The Secular Strain M

God's law for m a n (the law of nature) is the law of reason (II, 6 ) . Just h o w are w e to take this prominent claim in Locke? In its strongest form the claim would be that the acts required by the law are somehow inherently rational (such that their nonperform­ ance would amount, say, to a kind of "practical contradiction"). 51

w

Whether or not Locke intends to claim that the right of creation is just "selfevident" in (e.g.) E, 4.3.16 (as Tully claims in Discourse, 4 0 - 4 2 ) is unclear. What Tully seems not to see is the problems in regarding this right as anything but sui generis. God makes humankind; but He also makes the lower animals and the in­ animate world, over which persons can have (virtually) absolute authority. We no more make a chair (from God's tree) than we make the chifd, in the sense of "mak­ ing" as God does. Of course, w e can design a chair (but can we now, or soon, design the child too?); and God gave the earth and animals to u s (in a more obvious sense than He gave us children?) I return to these problems in 4.2. Reason is the voice of God in us, and to be moral (to d o God's will) is thus to be rational (Yolton, Locke, 35). God gave us "reason and with it a law, that cannot be otherwise than what reason should dictate, unless we should think that a rea­ sonable creature should have an unreasonable law" (R, 193 [252]). It is not, I think, to be taken as a simple restatement of the claim that morality is demonstrable. The content of the law is, of course, discoverable by reason, because the law is rational for mankind. But to prove the law's rationality is not to d e m o n ­ strate that it is obligatory. And even if God did not will what was most rational from our viewpoint, w e might still be able to demonstrate the content of morality (e.g., by inference from the evidence of our senses to the nature of God's will for us). Von Leyden—unfairly I think—accuses Locke of a quite basic confusion o n this point ("John Locke and Natural Law," 27-29). Locke also cannot mean (as h e some­ times seems to) that the law is identical to reason ("it is only the object of reason, not reason itself" [ELN, 149]), nor is the law even properly a "dictate of reason" (ELN, 111). See Hancey, "John Locke and the Law of Nature," 442. 3 0

51

36

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THEORY

T h u s , a Kantian could say that t h e moral law is " t h e law of rea­ son." In a w e a k e r form, the claim might be that the acts required by the law; are those that best advance the agenf s interests ^so that nonperformance would b e "irrational" in the weaker, prudential sense of the word). Hobbes, for instance, describes a law of nature as "a precept or general rule, found out by reason, by which a m a n is forbidden to d o that which is destructive of his life or takes away the m e a n s of preserving the same a n d to omit that by which h e thinks it m a y b e best p r e s e r v e d . " O n either the Kantian or the Hobbesian (egoistic) interpretation of the claim, it is natural to go on to say t h a t moral wrongness consists precisely in the irrational­ ity of noncompliance with the law. That is, it is true not only that wrongdoing is irrational, but that conduct is wrong solely because it is irrational. A n d o n either the Kantian or t h e Hobbesian inter­ pretation, natural law would then not only be independent of God's will, b u t b e derivable without reference to God at all. 52

Such consequences are clearly anathema to Locke's voluntarism. The natural law cannot b e the law of reason in the sense of binding us because it c o m m a n d s w h a t is rational; it binds u s because it is commanded b y G o d . N o derivation of morality could, without consideration of God's will, move beyond w h a t is merely rational to what is obligatory. But God's commands might still b e com­ mands to d o w h a t is in fact either inherently rational or prudent, and thus .the law of nature might still be the law of reason in one of these weaker senses (where the rationality of the law does not ground its obligatoriness). Morality as prudence may seem to be w h a t Locke h a s i n m i n d in the First Treatise, w h e n h e argues that the "strong desire of preserving his life a n d being having been planted in [man] as a principle of action b y God himself, reason . . . could n o t b u t teach h i m a n d assure him, that pursuing that natural inclination h e had to preserve his being, h e followed the will of his M a k e r " (I, 86). Perhaps this is the sense in which "there necessarily result from his inborn constitution some definite duties for h i m " (ELN, 199). 53

54

55

n

Leviathan, chapter 14, paragraph 3. Locke's thoughts here, of course, depend in part o n his belief that the threat of God's sanctions is necessary to motivate us to d o what is right. While either reason or revelation .can inform u s about what is morally good or right, the mere rational recognition of rightness cannot be counted on to create the force of obli­ gation- See Yolton, Compass, 146-47; and Locke, 34-35, 51. See Von Leyden o n the parallel positions of Grotius and Suarez ("John Locke and Natural Law," 32). It is undoubtedly passages like this that motivate the view that natural law in n

M

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But Locke elsewhere (most prominently in essay 8 of the Essays on the Law of Nature) rejects such suggestions. Morality cannot con­ sist solely in doing w h a t is in our own best interest, for "a great n u m b e r of virtues, a n d the best of them, consist only in this: that w e do good to others at our o w n l o s s " (ELN, 207). A n d of the dictates from our "inborn constitution," Locke writes: "principles of actions indeed there are lodged in m e n ' s appetites; b u t these are s o far from being innate moral principles, that if they w e r e left to their full swing they would carry m e n to the overturning of all morality" (E, 1.2.13). It seems t h a t morality is not chiefly con­ cerned with rational self-interest, but rather with the interests of all persons, taken together. As w e shall see, the fundamental law of nature is that mankind is to be preserved. The law prescribes not w h a t is to the advantage of each individual separately, b u t w h a t is " u n i v e r s a l l y u s e f u l " (R, 174 [2421). (^od h a s "by a n i n s e p a r a b l e 56

57

w

u m i i e x i o n , j o i n e d v i r t u e a n d public l u t p p i n e a h t o g e t h e r , a n d

made

the practice thereof necessary to the preservation of society" (E, 1.2.6; m y emphasis). It may on some occasions b e irrational (in t h e prudential sense) for individuals to obey the law of nature, assum­ ing (as I a m here) that it is possible to rationally advance one's interests b y doing w h a t is w r o n g . God's sanctions, of course, complicate this a r g u m e n t since throwing their infinite weight into the calculus (a la Pascal) guarantees that moral conduct will always be in our best interests (with the afterlife included) (E, 2.21.72).*° I take it, however, that this is n o t what is s u p p o s e d to m a k e natural law the law of reason, since o n that argument the law of n a t u r e could have any content whatsoever a n d still be the law of reason. In w h a t sense, then, is natural law the law of reason? I think 59

Locke is essentially concerned with self-preservation—a view defended by Strauss and others (e.g.. Cox, Locke on War and Peace, 8 4 - 89, 138; Goldwin, "John Locke," 4 8 4 - 8 5 ; Medina, Social Contract Theories, 33). "An Hobbist, with his principle of self-preservation . - . , will not easily admit a great many plain duties of morality" (King, Life, 1:191). Education, 33, 45, 52, and 200 strongly suggests that virtue and morality consist in reason's denying, tuning, controlling, and crossing our selfish desires, not in finding the means to their satisfaction. See Tarcov, Locke's Education, 8 5 - 9 3 , 1 8 9 90; Yolton, Locke, 22-23; and Yolton and Yolton, "Introduction," 21. O n Locke's opposition to ethical egoism, see Tully, Discourse, 1 0 3 - 4 ; and ELN, 181, 211. Locke frequently u s e s "rational" in the prudential s e n s e w e are discussing. See Colman, Moral Philosophy, 223. "Virtue and prosperity do not often accompany one another" if only this life is considered; but virtue is "by much the best bargain" if we "put into the scales on her side an exceeding and immortal weight of glory" (R, 82 [245]; 184 (2451). See D u n n , Political Thought, 195-96, 230. 5 4

w

5 8

w

60

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what Locke h a s , i n m i n d is simply this: natural law c o m m a n d s what is i n t h e best interests of m a n k i n d as a whole, a n d is i n this sense rational f o r M a n (although not for each person on every oc­ casion). It will, o^ course, benefit each person for others to obey the law (E, 1.2.6), f o r e a c h profits from a secure and peaceful environ­ ment; a n d compliance with the law is often necessary as a m e a n s of securing similar compliance from others. But it will also be pos­ sible (and rational, in the prudential sense) to reap personal a d ­ vantage from clever "free-riding." Morality forbids such behavior, so morality is not always rational for each person. Locke distin­ guishes less clearly than Hobbes between what is rational for each person a n d w h a t it w o u l d be best for all people to do together. But I think w e m a k e the best sense of his texts if we ascribe to him the view that t h e moral law is only the law of reason for Mankind, not for persons taken separately. Presumably, this is one reason why Locke argues that aihetatu are not t o bo tolerated in society; "the taking away of God, though b u t even in thought, dissolves all" (L, 156). The atheist cannot be counted on to fear God's sanctions. But even worse, w i t h o u t knowledge of G o d a n d God's will, the atheist "can never b e certain that anything is his d u t y " (E, 1.2.13), and so will be u n m o v e d even by the ideas of right a n d w r o n g . All that will command t h e atheist's attention will be personal interests (and fear of the sanctions of civil law a n d public opinion). This is not e n o u g h for Locke, since private advantage so often leads away from the achievement of "public h a p p i n e s s . " " 61

The law of nature, then, is "rational" (in the sense of command­ ing what is best) only for mankind as a whole, a n d demonstrable by reason only given a knowledge of God's will for m a n . Occa­ sionally, however, w e see a h i n t of a different position at work in Locke's arguments, a position more amenable to intettectualism and to the secular moral theories of the Enlightenment than to the dominant strain of voluntarism i n L o c k e . In Kantian terms, of course, Locke's law of nature (as I have t h u s far presented it) com­ mands only hypothetically. While its form is categorical, the law gives us reason to act only insofar as w e share the ends the law is designed t o a d v a n c e . If w e care about t h e well-being of h u m a n 63

64

« Sec Pangle, Republicanism, 1 9 0 - 9 1 , 211. In A Letter Concerning Toleration only atheists, and not, for example, polytheists, are considered "intolerable." In the Essays on the law of Nature, however, athe­ ists and polytheists are taken to be equally bad (ELN, 175). See Soles, "Intellectualism," 7 0 - 8 1 . ** On the difference b e t w e e n categorical form (which is shared by, e.g., rules of tt

8 3

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kind as a whole (which many of us will), or about our personal well-being, threatened b y God's sanctions (which all of u s will), the natural law's imperatives will apply to u s . Its imperatives may be "assertorical" (to use Kanf s t e r m ) , b u t they are nonetheless hypothetical only, conrerning the advancement of contingent e n d s . The true moral law, according to Kant, c o m m a n d s categori­ cally, i n d e p e n d e n t of t h e subjective e n d s of p e r s o n s . Moral action is inherently rational, giving all rational agents reason to conform their conduct to the d e m a n d s of the moral law. A n d it m a y sometimes seem as if Locke agrees with Kant. In­ deed, in the only substantial passage concerning the justification of natural law that h e presents in the Second Treatise, Locke quotes approvingly a n d at length from Hooker, deriving our obligations from h u m a n equality: 65

The like natural inducement, hath brought m e n to k n o w that it is n o less their duty, to love others than themselves, for see­ ing those things which are equal, m u s t needs all have o n e measure; If 1 cannot b u t wish to receive good, even as m u c h at every m a n ' s h a n d s , as any m a n can wish u n t o his o w n soul, h o w should I look to have any part of m y desire herein satisfied, unless m y self be careful to satisfy the like desire, which is undoubtedly in other men, being of one a n d the same nature? To have any thing offered t h e m r e p u g n a n t to this desire, m u s t needs in all respects grieve them as m u c h as m e , so that if I do h a r m , I must look to suffer, there being no reason that others should show greater measure of love to me, than they have by me, showed u n t o them; My desire there­ fore to be loved of m y equals in nature, as much as possible m a y be, imposeth u p o n m e a natural duty of bearing to themw a r d , fully t h e like affection; From which relation of equality between our selves a n d them, that are as our selves, w h a t sev­ eral rules a n d canons, natural reason both d r a w n for direction of life, n o m a n is ignorant. Ecd- Pol. Lib. 1. (II, 5) etiauette or d u b rules) a n d deeper notions of categoricality, see Foot, "Morality as a System"; and Goodpaster, "Morality as a System." An assertorical hypothetical imperative is one that says "the action is good to some [actual] purpose" (Kant, Foundations of the Metaphysics of Morals, 414), All "de­ pendent beings" (including humans) have happiness as a purpose, but it is not a necessary end for a rational being as such. In the rather rough-and-ready charac­ terization of Kanf used in this paragraph, and far more so in those below, I express views that are not precisely Kanf s o w n , but are only Kantian in some extended (but I hope still recognizable) sense. 6 5

40

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Note that h e r e t h e duties of natural law are derived, without refer­ ence to God's will or His c o m m a n d s , from the fact that "those things which are equal, must n e e d s all have o n e measure." A n d the argument strongly suggests that it is t h e irrationality (or incon­ sistency) of treating others as if they were different from ourselves that establishes its immorality. There is a kind of "practical contra­ diction" involved in hanrtful conduct toward o t h e r s . The state of nature has 3 law to govern it; " a n d reason, which is that law, teaches all mankind . . . that being all equal and independent, no one ought to h a r m a n o t h e r " (II, 6; m y emphasis). Let m e briefly sketch a parallel argument that is perhaps suffi­ ciently Kantian in character to highlight the similarity between a Kantian position and the Hooker-Locke argument quoted a b o v e . We can begin with K a n f s second (or third) formulation of the cat­ egorical imperative: "Act so that you treat humanity . . . always as an end a n d never as a means only" (or "not merely as a means to be arbitrarily used b y this or that will"). O n e way of understand­ ing Kanf s w o r d s is this: we stand u n d e r both negative and posi­ tive duties with respect to others, duties that derive from the same roots. Negatively, our (fundamental) duty toward others is not to use them, not to treat them merely as m e a n s to our o w n ends. As Locke says, w e are not " m a d e for o n e another's u s e s " (II, 6). We must treat other persons as w h a t they manifestly are —beings like ourselves, " p e r s o n s " in Kant's sense, beings of" independent worth (on Locke's similar concept of " p e r s o n , " see 2.2. below); w e 66

67

68

69

;

70

** See Soles, 'TnteBecrualism," 73. 1 The Hooker argument could, I suppose, be pushed to read as a causal argu­ ment to a good egoistic rule of thumb: don't treat others badly because, being just like you, they will treat y o u badly in return. This reading seems to m e neither true to Hooker's intentions nor accurate as a way of capturing the spirit in which Locke borrowed from Hooker (see Soles, "Intellectualism," 72). While this is not the place for an extended discussion of Hooker, two points can be quickly made to s h o w how implausible an egoistic reading of this passage is. First, in the section from which Locke quotes (Of the Laws of Ecclesiastical Polity, 1.8.7), Hooker is clearly at­ tempting to state the underlying justification for the "Golden Rule" of morality. It would be most odd to suppose that this justification was believed by Hooker (or Locke) to b e egoistic. Second, far from assuming that the egoistic advantage of obedience to the laws of nature has been demonstrated in this passage. Hooker goes o n to discuss the benefits of keeping the law in a separate chapter (1.9) (and he emphasizes n o t egoistic considerations, but the g o o d that is done for "the w h o l e world"). M

See the similar argument discussed in Fressola, "Liberty and Property," 316. * Foundations of the Metaphysics of Morals, 429, 428. "Man necessarily thinks of his o w n existence this way; . . . Also every other rational being trunks o f his existence by means of the same rational ground which holds also for myself" (Foundations of the Metaphysics of Morals, 429). 7 0

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m u s t not treat t h e m as objects or tools to be used for our p u r p o s e s , as w e use the manimate world (the world of "things"). Positively, w e m u s t take the lives a n d life plans of others to provide u s with reasons for acting o n their behalf. We m u s t recognize their e n d s as having the same kind of value our o w n e n d s have, a n d w o r k h o n ­ estly to advance both. W h e n the soap-opera heroine condemns her ex-lover b y saying, "All along h e w a s only using m e , " she criticizes him for his failure to value h e r feelings a n d projects. H e treated her as a mere m e a n s to his ends, as a tool or a n object. In doing so, however, h e did more than break her heart; h e acted "inconsistently." For, o n the o n e h a n d , h e recognized t h a t she w a s a person like himself, w i t h a perspective on t h e world like his o w n , a n d with desires a n d plans as mrimately connected with her happiness as his o w n plans are connected to his o w n happiness. O n the other h a n d , however, h e treated her not like a person b u t like a thing. In short, h e treated h e r as other than h e acknowledged h e r to be, as other t h a n she manifestly was. A n d a perfectly familiar form of irrationality in action (although a weaker sense than Kant h a d in m i n d ) is that of treating something as other than it clearly is. To treat others as things is to act in a way that belies one's o w n beliefs, to p r e t e n d a significance a n d a priority one cannot in good conscience affirm. It is also to fail to show the respect that is an appropriate response to beings w h o are not things (an idea to which I will return in 2.2 a n d 2.4). The equality of persons in nature makes special treatment of some persons irrational. The personhood of persons makes u s i n g t h e m (in Kant's sense) irrationai. Each of us has a duty to do w h a t c o m m a n d s rational nature as such (what c o m m a n d s categorically). Just as w e m u s t for Locke respect God's property, w h e t h e r in our­ selves or others, the Kantian strain in Locke requires u s to respect h u m a n i t y (personhood), w h e t h e r in ourselves or others. In offering this reconstruction of the Hooker-Locke a r g u m e n t I mean neither to defend the line of argument as unproblematic nor to suggest that it w a s especially central in Locke's thought. I intend only to point to a certain affinity between one strand of Locke's a r g u m e n t a n d o n e kind of Kantian position (a position di­ vorced from Kant's metaphysics and much else that w a s important to his ethical t h e o r y ) . The most obvious affinities between the 71

72

7 1

On the vagueness of commonsense notions of "using people" and the difficul­ ties in employing them in systematic moral philosophy, see Davis, "Using Per­ sons." Kant was, of course, another participant in the voluntarist, legalist tradition in 7 1

42

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THEORY

Lockean a n d Kantian theories, however, are not here at the foun­ dations of t h e iiheories, where the Kantian m u s t argue for a ground of obligation that Locke w o u l d never have acknowledged as the sole g r o u n d . More obvious are similarities in the contents of m e m o r a l theories flowing from these foundations. For theories that begjn with: something like the second formulation of K a n f s categorical imperative seem to naturally yield a body of rights a n d duties that is recojgnizably Lockean. 73

i

moral theory, albeit Hnly in a secularized form. And he defended a form of natural law and natural rights (see, e.g., Sigmund, Natural Lour, 162-63). The autonomous, legislative will takes God's place in Kanfs theory; but for Locke too the value of rational self-government is a Central concern (see Rapaczynski, Nature and Politics, 161; Parry, John Locke, 13-14; Wood, Capitalism, 140). A n d juat as the rightfulness of other commands (e.g., those of our earthly sovereigns) is determined in Locke by their conformity to God's will, so in Kant their rightfulness is measured by their conformity to the rational wifl (i.e., according to what rational agents would will for themselves). Nor, is tine (prominently placed) Hooker argument the only point In Locke's writings w h e r e his claims resonate with a Kantian tone. We shall see in subsequent chapters other examples of this "leaning'' or "strain" in Locke's thought. For instance, in Locke's views on punishment (3.5) and property (5.4), w e will see a focus o n natural fairness, which is often noted as a condition for showing equal respect lor persons in contemporary Kantian moral theory. One text that t will not consider in any detail later, however, should at least be mentioned here'. The central argument of Locke's short manuscript o n "Morality" begins, like m e Hooker argument, with the recognition that natural equals must be "equally under o n e a n d the same rule"; it then uses a Kantian-style universalization ai^ument t o establish the obligation to keep one's word ("Morality" (MS c28, fol- 140)). Here 1 disagree with Dunn's claim that the argument of "Morality" is "purely utilitarian" (Political Thought, 50n). It is rather, I think, evidence of Locke's mixture of rule-consequentialist and deontological reasoning that I stress in the next section of this chapter. Other Kantian aspects of Locke's claims have been noted from time to time in the secondary literature o n Locke, m o s t often in the writings of Raymond Polin (see his La Politique Morale de John Locke and paper* d t e d below). Grant (Liberalism, 192-94) and Riley (Will and Political Ugitimacy, 81) have noted the similarities between Locke and Kant in their accounts of freedom as sub­ jection to reason and law; to be free for Locke is to be governed neither by another's wiO nor b y one's o w n unchecked desires (see 6.2 below). Richards has rightly pointed out the Kantian aspects of Locke's views on autonomy a n d toleration (Tol­ eration, 80). A n d many have noted the possible place of synthetic a priori judg­ ments in Locke's moral theory. 1

n

The same is tru^e, of course, of the rule-consequentialist theory I discuss in 1.4, explaining the ease'with which Locke m o v e s from o n e style of reasoning to an­ other. A familiar example of a Lockean project with Kantian foundations ran b e found in Robert Nccack's writings o n moral and political theory. Nozick's avowedly Lockean enterprise'in Anarchy, State, and Utopia, insofar as it has explicit moral foundations at all, has straightforwardly Kantian o n e s . The "inviolability of the person" necessary for Nozick's view of rights as "side constraints" is derived di­ rectly from the second formulation of the categorical imperative (Anarchy, 32-33). Now Nozick's reading of Locke in that work, of course, is (wishfully) libertarian, and it is not even remotely clear h o w a libertarian moral theory can be drawn with­ out violence from Kantian foundations. Nor d o e s Noaack e v e n really attempt to show h o w this might be done, a fact made more disquieting by his Rawlsian rivals' 43

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To say that such theories are fully consistent with the "spirit" of Locke's moral theory would, of course, be misleading. God is too m u c h at the center of Locke's work for such secular, Kantian ar­ g u m e n t s to capture its essence. But w e can fairly say, I think, that such projects touch a part of what is going on in Locke (explaining their popularity as a way of "carrying o n " the Lockean tradition). Locke is moved (as I will argue in chapter 2) b o t h by a conception of h u m a n k i n d as God's property a n d part of God's plan a n d b y a conception of the dignity of persons in their equality a n d indepen­ dence as moral agents. We are made b y God, curious a n d wonder­ ful pieces of w o r k m a n s h i p (I, 86) invested with "dignity a n d au­ thority" (I, 44). O u r dignity calls for a n d makes obligatory certain kinds of treatment, just as does our status as property of God. Certain conduct is "suitable to the dignity a n d excellence of a ra­ tional creature" (Education, 31). 74

also daiming Kantian foundations for their quite different sotial-welfarist views- A properly Lockean moral theory, I suggest, will support a political philosophy that falls somewhere between libertarian minimalism and Rawlsian egalitarian liberal­ ism (see 6.2 and 6.3 below). But in his more recent work. Philosophical Explanations, Nozick seems (without comment) to abandon his spartan libertarian moral theory for a position more com­ patible with genuinely Lockean views (Nozick's least libertarian moments occur at 468 - 69, 498-503) and to present a much dearer account of the Kantian foundations for a more moderate liberalism, in terms of what he calls "moral responsiveness": Ethical behavior somehow recognizes or acknowledges the (basic moral) char­ acteristic, it treats the bearer of the characteristic as having that characteristic. On the supposition that the basic moral characteristic is being a value-seeking I, the fundamental ethical prindple is: Treat s o m e o n e (who is a value-seeking I) as a value-seeking I. This has kinship with Kant's prindple: treat everyone as an end-in-himself and not merely as a means. (Philosophical Explanations, 462) The similarities between Nozick's strategy and that of our reconstruction of the Hooker-Locke argument are, I hope, obvious. (I will return to them in 2.2.) M y point here is only that in the "recentering" of Nozick's moral theory, we can see the natural tendency for this kind of Kantian foundation to yield a body of moral rights and duties similar to those defended by Locke. A central charge in Shapiro's Evolution of Rights is that there is a kind of "inco­ herence" in trying "to combine a substantive appeal to the arguments of the early English contract theorists with a methodological appeal to Kant's ethics." M o d e m writers leave "crucial premises" behind (ibid., 5 - 6 ; see also Shapiro's "Resources," 5 5 - 5 6 ) . I can see nothing in his work that justifies so general a claim. Since Shapiro acknowledges that Locke himself employed both rationalist arguments (which fa­ cilitate dropping God from the picture 1146]) and religious ones, it is hard to see h o w the modern project can involve any new incoherence not already present in Locke (or in Kant, w h o did himself embrace many of the same claims made by "En­ glish contract theorists"). 74

Our rational agency is as much a part of the "inborn constitution" on which duties are based as is our desire for self-preservation. See Murphy's discussion of the parallel strategies in Locke and Kant for marking out "the spedal kind of treat44

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I do not think Locke saw these secular and religious conceptions of h u m a n k i n d a n d morality as inconsistent. A s a result w e find in Locke a variety of styles of a r g u m e n t for moral conclusions, sitting side by side a n d without a n y explanation of their differences. Some a r g u m e n t s appeal directly to God's will; others appeal to it indirectly by rule-consequentialist reasoning (of the sort I outline , in 1-4); still others appeal to it not at all. Of this third (secular) class, s o m e of t h e arguments are purely conceptual, while others appeal for their moral force to a particular view of the person as free a n d equal, rational a n d valuing. The force of these last argu­ ments is best captured in Kantian terms. Locke seems not to w a n t to explicitly explore their potential for a nontheological ethics, em­ phasizing throughout his work that only God's wul can make ac­ tions obligatory. But it is precisely this potential that makes intel­ ligible claims to b e pursuing a secular, b u t nonetheless Lockean project in moral a n d political philosophy. To a certain extent, what Locke is doing is detaching some of his derivations of the specific content of morality from his view of w h a t makes that con­ tent obligatory. But seen in another way, Locke is simply work­ ing from m o r e than one foundational stance at a time. The result of this is that in h i s political philosophy w e find Locke employing 75

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merit (called 'respecf, by Kant) which is particularly fitting or appropriate to auton­ omous, rational persons" ("Rights and Borderline Cases," 230-31). " Herzog claims (against Dunn) (hat Locke's political philosophy has "concep­ tual working room for a fairly secular approach" (Without Foundations, 106n). Oth­ ers w h o have noted the secular strain in Locke's thought (in addition to those men­ tioned above) include Parry [John Locke, 13-14), Rapaczynski (Nature and Politics, 117), and many of the more "traditional" writers o n Locke, such as Sabine (History of Political Theory, 518). TuUy discusses the argument for "conceptual connections" between certain acts (and the relationships they establish) and the obligations and rights that arise from them (Discourse, 34). limoral properties are really related to human acts (e.g., begetting a child) as the properties of a triangle are related to its real essence, then these conceptual connections can be employed in secular moral argument. 1 have in mind here the kind of "Lockean, secular morality" that Gauthier (rightly) claims "modern moral philosophers have wanted," but (mistakenly, 1 think) claims "is n o t t o be found" ("Why Ought One Obey God?" 428; a position similar to Gauthier's is defended in Replogle, Recovering the Social Contract, 1 8 0 81). Dunn, w h o emphasizes the theological side of Locke's argument, does men­ tion the "purely secular" strain of Locke's thinking about morality. But h e identifies, this with a concern for "terrestrial utility," similar in some ways to Hobbes (Political Thought 257-58). I argue below that the "utilitarian" aspects oi Locke's thought are really the final stage of his reasoning in theological terms. The genuinely secular aspects of Locke's thought are not utilitarian, but Kantian. n

77

"* A s Colman allows: "Locke is not a voluntarist with respect t o the content of the moral law. His voluntarism is strictly a theory of moral obligation" (Moral Phi­ losophy, 32). 45

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a r g u m e n t s t h a t are designed t o appeal b o t h t o t h o s e w h o see t h e secular e n d s of the state as good in themselves a n d to those w h o see t h e m only as m e a n s to religious e n d s . N o t only, then, d o sec­ ular, Kantian enterprises in political philosophy have the machin­ ery to produce the content of Locke's theory. They capture some of its spirit as well. 2.4. The Superstructure of Locke's Theory Recall the final steps of Locke's demonstration of morality; (4)

The nature of God a n d h u m a n nature together reveal the "principle" of God's will for m a n k i n d .

(5)

From the principle of God's will a n d the empirical con­ ditions of h u m a n life (revealed by our senses), our spe­ cific moral duties follow.

We have already seen part of the point of Locke's claim in step (4). A s t u d y of h u m a n n a t u r e alone may reveal for persons the "fixed law of their operations a n d a manner of existence appropriate to their n a t u r e " (ELN, 117), b u t it cannot reveal a moral obligation to act in w a y s "appropriate to their n a t u r e " (as, e.g., some m o d e r n Aristotelians suppose). It is only from h u m a n nature a n d the na­ ture of God together that w e can derive our moral obligations, for it is God's will that makes acts obligatory (or so the d o m i n a n t strain in Locke's thought suggests). H u m a n nature, in other words, can reveal the substance of God's will for u s , b u t that H e wills anything for us is derivable only from God's nature. Specifi­ cally, "it does not seem to fit in with the wisdom of the Creator to form a n animal that is most perfect a n d ever active, a n d to e n d o w it abundantly above all others with mind, intellect, reason, a n d all the requisites for working, a n d yet not assign to it any w o r k " (ELN, 117). Knowing God's wisdom w e are free to assume that h u m a n na­ ture reveals G o d ' s will for m a n (and t h u s , our obligations). We know, for instance, that H e would not have e n d o w e d us with rea­ son if H e did not wish u s to follow the "law of reason." But in w h a t does following reason consist? As we have seen, it is initially tempting to s u p p o s e that Locke means rationally advancing the e n d of t h e "first practical principle"—self-preservation (as Locke seems to suggest in I, 86, a n d again in II, 149, w h e r e h e calls self46

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preservation t h e ''fundamental, sacred, a n d unalterable l a w " ) . The principle of God's will would then b e that w e are to (ratio­ nally) preserve ourselves. But (as w e have also seen), Locke in fact argues against t h e view that " t h e basis of natural law is each man's own interest." It is true that general "observance of this l a w gives rise to peace, harmonious relations, friendship, freedom from punishment, security, possession of our property, and—to s u m it all u p in one w o r d — h a p p i n e s s . " But it is true as well that moral­ ity requires o n e " t o stand b y o n e ' s promise, t h o u g h it w e r e to one's o w n h i n d r a n c e " a n d requires " t h e restitution of a trust that diminishes o u r possessions" (ELN, 215). In short, Locke is n o ethical egoist. 60

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"But if any l a w of nature would seem to be established among all as sacred in the highest degree, which the whole of mankind, it seems, is urged to observe b y a certain natural instinct and by its o w n interest, surely this is self-preservation, and therefore some lay this d o w n as the chief and fundamental taw of nature" (ELN, 173); It s e e m s clear, however, that Locke is not himself claiming self-preser­ vation as thie fundamental law in this passage. And in n, 149, the self-preservation that is said to be ''fundamental" is the preservation of the society, n o t of each indi­ vidual. Only L 86 really suggests the egoistic reading of Locke. The relation between Locke's hedonistic theory of good and evil (E, 2.20.2; 2.21.42-44; 2.28.5) and his nonhedonistic moral theory is complex (and not always consistently presented b y Locke). Briefly, while "things . . . are good and evil, only in reference t o pleasure or pain" (E, 2.20.2), it is open to us to determine what will give us pleasure or pain (to "tune" our desires). Moral conduct brings personal happiness only if this determination i s the correct o n e ("morality, established u p o n its true foundations, cannot but determine the choice in anyone that will but con­ sider" [E, 2.21.72]). See Yolton, Compass, 144-46; and Rapaczynski, Nature and Pol­ itics, 144-59.' , t « Locke concludes, this argument by stating (correctly): "And thus the tightness Of an action d o e s n o t d e p e n d o n its utility; o n t h e contrary, its utility i s a result of its rightness" (and more dearly: "Utility is not the basis of the law or the ground of obligation, but tile "consequence of obedience to it" (ELN, 215J). (By "utility" here Locke clearly means personal utility.) The argument of essay 8 of the Essays on the Law of Nature (from which these passages are drawn) is still, however, troubling tor several reasons. Locke never adequately distinguishes between the natural con­ sequences of obedience to natural law ( h o w o n e would fare simply in a natural society of equals) and the artificial consequences (which include the imposition or withholding of sanctions by God and civil authorities). It is, as a result, never clear which kinds of consequences are being considered in the claim that obedience to natural law results in (personal) utility. Since Locke acknowledges that the law sometimes requires u s to act contrary to our present interest, he must mean one of the following; obedience to natural law (a) results in longer term natural advan­ tages, (b) avoids legal punishment, or (c) avoids God's punishment (or some com­ bination of the three). But ( 3 ) is true only when others are also obeying the law, and not always even then (as Hobbes s a w more clearly, I think, than Locke). A n d (b) is true only w h e n the law of the land rewards virtue and punishes vice (which it does not always do). This leaves (c). The problem is that Locke d o e s not refer centrally to God's sanctions in the argument, but seems to have in mind a (bad) argument using only (a) a n d (b). Elsewhere, Locke acknowledges mat only God's sanctions can establish a convergence of private and public utility (i.e., make selfw

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The principle of God's will is not that persons are to preserve themselves, b u t that mankind as a whole is to be preserved. We cannot simply read off the content of God's will from facts of h u ­ man psychology or physiology of the sort (and in the fashion) Locke confusedly suggests in I, 8 6 . Accordingly, Locke writes in t h e Essay t h a t morality necessarily promotes "public h a p p i n e s s " and "the preservation of society" (E, 1.2.6; m y emphasis); a n d in the Second Treatise, h e repeatedly d a i m s that "the fundamental law of n a t u r e " is " t h e preservation of m a n k i n d " (e.g., II, 7, 16, 134, 135, 149, 159, 171, 183). It is this fundamental law that I have referred to as "the principle of God's will"; for Locke seems clearly to intend that all the specific rules of natural law are s o m e h o w derivable from this quite general statement of w h a t God wills for m a n . Locke also refers to this fundamental law as " t h e basis of natural l a w " ; sz

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By the basis of natural law w e mean some sort of g r o u n d w o r k o n which all other and less evident precepts of that law are built a n d from w h i c h in some way they can b e derived, a n d t h u s they acquire from it all their binding force in that they are in accordance with that, as it were, primary and funda­ mental law which is t h e standard and m e a s u r e of all the other laws d e p e n d i n g on it. (ELN, 205) interest and morality consistent): "If there be no prospect beyond the grave, the inference is certainly right—'Let us eat and drink,' let u s enjoy what w e delight in, 'for tomorrow w e shall die' " (E, 2.21.56; see also E, 2.21.72). See Herzog, Without Foundations, 9 0 - 9 1 . K

I, 86 has led Macpherson to suppose that Locke's method is simply to "de­ duce" rights a n d d u d e s from our "strong desires" ("Natural Rights," 229). That this is not his method can be seen in the simple fact that, according to Locke, God gave u s a desire to preserve ourselves (and our offspring), but not a desire to pre­ serve all mankind (which morality nonetheless requires). It is not "strong desires" but reason that provides the best evidence of God's intentions. Reason enables us to see what is best for mankind as a whole and to see that achieving this end re­ quires cooperation of various sorts, not just rational pursuit of self-interest. God wills that w e use our reason in this wider manner. See Tully, Discourse, 4 6 - 4 7 Similarly, Locke writes in Education, 116 that "the preservation of all mankind" is "the true principle to regulate our religion, politics and morality by." Colman argues that the preservation of mankind could not reaily be the fun­ damental law of nature (despite Locke's repeated claims to this effect) because the virtue of "liberality" could not be derived from it (Moral Philosophy, 199). This seems a weak argument in at least two respects. First, Locke's insistence that lib­ erality is a virtue is considerably less frequent than his insistence that preservation is the fundamental law. But second, as w e will see below (and in 6.3), given the rule-consequentialist method of deriving specific precepts at natural law from the fundamental law, there is no obvious reason why Locke could not derive a duty of liberality (and similar "soft" duties) from the rule of preserving mankind (even leaving aside further Kantian derivations). 1 0

8 4

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We h a v e seen, a n u m b e r of reasons w h y Locke claims that the preservation of mankind is the fundamental law (or basic "princi­ ple" of C o d ' s will). We can infer m a t God wills our preservation both from His having bothered in the first place to create such in­ tricate a n d interestingly e n d o w e d creatures as ourselves and from the supportive environment H e created for u s to live in (I, 86). Preservation (peace, happiness) is the rational e n d for mankind, and God. can b e a s s u m e d t o w i s h u s to employ our reason. A n d finally, God h a s property in each of u s , a n d no one m u s t interfere with the preservation of another's property. The last of these reasons (God's property in us) seems problem­ atic in m o r e than one way in its role as the source of aU natural law (and it is, as w e have seen, both problematic in other respects and, unfortunately, frequently emphasized b y Locke). First, it is unclear h o w the property a r g u m e n t can yield anything more than negative moral injunctions (explaining, p e r h a p s , w h y Locke is so often read as a libertarian). For while w e k n o w that w e m u s t not harm or destroy another's property, there is no familiar rule of the institution of property that says w e m u s t -preserve the property of others in positive ways. (Am I morally bound to patch your roof when it starts to leak?) Yet Locke clearly wishes to argue for posi­ tive duties as well as negative ones (as I will argue in chapter 6); and if all duties must b e derivable from the fundamental law, a property-style defense of that law seems inadequate (we m u s t not destroy God's holdings, b u t m u s t w e help him maintain them—as a duty of property?) Second, on this line of argument, God's prop­ erty in u s m u s t really b e understood not so much as property in each specific person, but rather as property only in h u m a n k i n d as a whole (ah o d d notion). For the fundamental law of nature is not exactly that each and every person m u s t b e preserved: By the fundamental law of nature, m a n being to be preserved, as much as possible, w h e n all cannot be preserved, the safety of the innocent is to be preferred [II, 16]; the first a n d funda­ mental natural law, which is to govern even the legislative it­ self, is the preservation of society, a n d (as far as will consist with the public good) of every person in it [II, 134]; [we may do w h a t tends] to the preservation of the whole, b u t cutting off those parts, and those only, which are so corrupt that they threaten the sound a n d healthy. [II, 171] We may justifiably harm (or even kill) another h u m a n being (who is God's property) if this is necessary for the more effective pres49

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ervation of mankind as a w h o l e . The purpose of law is " t h e gen­ eral good of those u n d e r that l a w " (II, 57; m y emphasis), a n d w h e n a "nobler u s e " (i.e., t h e preservation of mankind) than t h e "bare preservation" of some individual (or lower animal) calls for harm­ ing him (it), w e m a y d o so (II, 6). Locke clearly has in m i n d here harming individuals w h o are threats to the rest of h u m a n k i n d . But it is still hard, o n the face of it, to see h o w G o d ' s property in the dangerous person is any less substantial (and less protective) than His property in the innocent. Supposing that the "principle" of God's will is indeed t h e pres­ ervation of m a n k i n d , h o w are w e to proceed with the derivation from our fundamental law of the specific rules of natural law (step [5] of Locke's demonstration of morality)? There is, unfortunately, very little textual evidence to support an interpretation in this area. A n d w e have seen that Locke clearly h a d doubts about his (and our) ability to produce a demonstration of the whole content of natural law. But w e can m a k e a "best g u e s s " at Locke's (un­ doubtedly inchoate) intentions; and in this case I believe there is one position that sits most easily within the text. Specifically, the fundamental law of nature is, I think, m e a n t to function in Locke's moral theory m u c h as the principle of utility has been t h o u g h t to function in some rule-utilitarian schemes. The superstructure of Locke's moral theory, then, is a kind of rule-consequentialism, with the preservation of m a n k i n d serving as the "ultimate e n d " to be a d v a n c e d . The fundamental law specifies this e n d , a n d all of the specific rules of natural law are members of that set of rules 86

87

w

See Windstrup's discussion of this point in "Locke o n Suicide," 1 7 0 - 7 2 . Perhaps the principle at work here (although I doubt Locke thought much about the problem) might be that another's (God's) property becomes more vulner­ able to interference w h e n it threatens our own (as w h e n t "pull d o w n an innocent man's house to stop the fire, w h e n the one next to it is burning" [II, 159], or shoot your rabid dog w h e n it attacks me). Since people have (a sort of) property in them­ selves (in addition to God's property), when God's property (other people) threat­ ens this, perhaps it loses its protected status. Or perhaps God "gives up o n " those w h o threaten others, throwing away His property in them. A s I argue below, there are good rule-consequentialist grounds for allowing the innocent to dispose of the dangerous. But these concern simply "maximizing'' the preservation of man, not respecting all of God's property claims. It each person were thought of as an en­ trusted custodian of all of God's property (not obviously an intelligible notion), then each person might be (morally) able to decide to sacrifice some of God's prop­ erty to better preserve the rest. Mere bystanders seem to have no right to make such decisions concerning another's property without prior authorization; but per­ haps Locke takes u s to b e authorized by God to make such decisions in the same divine trust that gives us the right to punish others (the "executive right," which is the subject of chapter 3). 8 6

m

A s I first argued in "Inalienable Rights," 199-200. 50

LOCKE'S

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THEORY

obedience to which best promotes the preservation of mankind. More formally, w e could characterize the law of n a t u r e a s follows: an act A is contrary to natural law if a n d only if A violates o n e of that set of rules (the specific precepts of natural law) general con­ formity to w h i c h would more effectively preserve m a n k i n d than conformity t o a n y alternative set. T h e precepts of the law of nature are the "ideal rules" (the most rational means) for preserving man­ kind. (God being perfectly wise, His law m u s t be "ideal" in this sense.) O u r ' m o r a l d u t y is to follow these ideal rules, a n d to re­ spect the rights they define. A set of rules that is ideal will not often generate conflicts of duties or rights. But considerations of simplicity a n d memorability of rules will limit the power of a n ideal set to eliminate moral con­ flict. W h e n occasionally the rules yield conflicting claims, conflicts are to be resolved b y direct appeal to the fundamental law—which tells us that whatever solution best preserves all involved parties is to be p u r s u e d . For instance, in discussing the conflict between a just conqueror's right to the v a n q u i s h e r ' s property a n d the right of the vanquished's wife and children, Locke states: 88

Here then is the case; The conqueror h a s title to reparation for damages received, a n d the children have a title to their fa­ ther's estate for their subsistence. For as to the wife's share, whether h e r o w n labour or compact gave her a title to it, 'tis plain, her h u s b a n d could not forfeit w h a t w a s hers. What must be d o n e in t h e case? I answer; The fundamental law of nature being, that all, as much as may be, should be pre­ served, it follows,-that if there b e n o t e n o u g h fully to satisfy both, viz. for the conqueror's losses, a n d the children's main­ tenance, h e that h a t h , and to spare, m u s t remit something of his full satisfaction, a n d give w a y to the pressing a n d prefer­ able title of those, w h o are i n clanger to perish without it. (H, 183) l

-

m

Being a member of the set of ideal rules, of course, must involve (as in devel­ oped rule-utilitarian theories) being a good rule for human beings, with their de­ fects in wisdom, memory, disinterestedness, and so on. So the ideal rules will be ones which are easy to follow and remember, which do not require calculations that our self-interested biases (or other limitations) will render impossible, and so on (and for these reasons, of course, ideal rule-consequentiausm of this sort is not simply extensionally equivalent to arf-consequentialism). The ideal rules for more perfect beings might be rather different. Above all, the ideal rules are not mere "rules of thumb"; they h a v e positive normative force within a real rule-consequenuaEsm. 51

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In cases w h e r e the specific rules generate no conflicts, w e are to scrupulously follow t h e rules (rather t h a n try t o advance t h e e n d directly, in an act-by-act fashion). As Mill puts it, "only in these cases of conflict between [specific rules] is it requisite that first principles should be appealed t o . " W h y read Locke as a rule-consequentialist, instead of an act-consequentialist? W h y not a single basic rule of natural law ("preserve m a n k i n d " ) with associated rules of t h u m b (analogous to the single act-utilitarian principle: "maximize utility'')? Obviously, the texts can support no.such reading of Locke's intentions, for everywhere that Locke speaks of morality and natural law, h e dearly has in mind a set of binding rules. Ethics is, for Locke, "those rules a n d measures of h u m a n actions, which lead to happiness a n d the m e a n s to practise t h e m " (E, 4.21.3). Indeed, it would be surprising if t h e possibility of a n act-consequentialist stance ever entered Locke's mind. The natural law tradition within which h e wrote, of course, emphasized a multiplirity of binding rules. The project of showing that God's revealed (positive) law has the same content as natural law obviously requires these multiple rules for natural law. A n d it is perfectly natural to think that the best way to get fallible h u m a n beings to promote the e n d of morality is by direct­ ing t h e m to follow a set of simple, memorable rules. Act-conse­ quentialist reasoning, b y contrast, would be significantly impaired by our "short sight," "there being so many actions . . . a n d so m a n y nice circumstances and considerations to be weighed . . . , w e cannot secure ourselves from being in the w r o n g . " 89

90

Furthermore, there are good reasons to think that a rule-conse­ quentialist sur^rstructure will "fit" better than any form of actconsequentialism with Locke's most firmly entrenched positions. Few can have failed to notice that while Locke often writes like a consequentialist, his strongest commitments concerning the con91

m

Utilitarianism, chapter 2, paragraph 25. * Locke, letter to Grenville, in Fox Bourne, Life, 1:391. Whether or not any rule-consequentialist positions are ultimately defensible, of course, is another question (and o n e with which I will not attempt to deal here). Their viability is being reaffirmed by the emergence of "two-level" utilitarian the­ ories (as in R. M. Hare's recent work); but they must ultimately deal with charges that they either require a kind of "moral schizophrenia'' (by recommending the adoption of dispositions inconsistent with philosophical reflection) or else involve a blind and irrational "rule-worship" (that is, as Smart argues, they advocate, with no theoretical justification, obedience to rules even where disobedience would more effectively promote the good). On rule-utilitarianism's (only apparent?) abil­ ity to generate c o m m o n s e n s e judgments about rights, see Lyons, "Utility and Rights." 9 1

52

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THEORY

tent ot natural law (e.g., to basic liberties, the sanctity of repara­ tion, individual rights generally, etc.) seem distinctly deontologicaL The. natural, position for squaring these elements of Locke's thought is some k i n d of nile-consequentialism. Indeed, the pri­ mary motivation in this century for the reemergence of rule-utili­ tarian theory seems to have been precisely a desire to square util­ itarian foundations w i t h commonsense, deontological views of what acts are right a n d w r o n g . A n d Locke's commitments to such deontological views seem extensive. For instance, Locke strongly believes in w h a t w e can, call a "robust zone of indifference" or wide "domain of a u t o n o m y . " Locke believes that our conduct in a large part of o u r lives is " u p t o u s , " or outside of t h e realm of required and forbidden actions (it is, in Locke's language, "indif­ ferent").* Doing our duty does not occupy the whole of our lives, but only occasionally limits our conduct. We enjoy a significant sphere of moral liberty within which we can pursue our o w n (harmless) goals a n d desires. As Locke writes in a well-known se­ ries of letters to Denis Grenville, morality does n o t demand any­ thing of us "in the greatest part of the actions of o u r lives wherein I trunk God out of his infinite goodness considering our ignorance and frailty hath left us a great liberty." As long as w e obey the law, w e m a y d o as w e wish with the rest of our lives. This "zone of indifference" figures prominently in Locke's defense of reli­ gious toleration. .. 92

93

94

5

96

97

By contrast, of course, act-consequentialism seems to dissolve this sphere of indifference or moral liberty. A familiar objection to act-utilitarianism has been that, by advancing the single require1

* The distinction between consequentialist (or teleologies!) and deontological theories is drawn most prominently by Kawls in A Theory of Justice, 24-30, and much more exhaustively in Scheffler, Rejection (although Scheffler does not discuss mlf-consemientialism). For a recent attack o n this way ot classifying moral theories, see Piper, "Distinction." Fishkin, limits of Obligation, 23. ** Nozick, Philosophical Explanations, 501-2. *> "What doth not lie under the obligation of any law is . . . indifferent" (First Tract, 124). * "There is a great latitude, and, therein w e have our liberty which w e may use without scrupulously thinking ourselves obliged to that w h i c h i n itself may b e best"; "the grounds and rules on which the right and wrong of our actions turn . . . lie possibly in a narrower compass, and in a less number, than is ordinarily supposed" (Fox Bourne, life, 1:391, 393, 395). See Shapiro, "Resources," 50. We should live in peace with our fellows and worship God. But w e are also free to pursue our o w n "ease, safety, and delight" and "a plenty of the good things of this world" (King, life, 1:165-68). The man­ datory and optional features of the law of nature are discussed below (2.1) in the context of Locke's theory of rights. w

w

53

CHAPTER

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ment that w e always maximize expectable utility, it seems to leave nothing morally indifferent. In even our most trivial a n d common­ place activities, there is some course of action that maximizes util­ ity (and is t h u s morally required). Similarly, Locke's apparent commitment to the " s a c r e d n e s s " of individuals would seem to sit uneasily with his consequentialist concern for the good (preservation) of the whole of mankind. For a n o t h e r familiar objection to act-consequentiaiist theories has been that they seem b o u n d to allow that individuals m a y be sacrificed w h e n this is necessary in order to most effectively advance the good. But Locke, while he is (as w e have seen) willing to allow that a specific class of individuals (those w h o are threatening seri­ ous h a r m to others) may have to be sacrificed for the c o m m o n good, limits this implication of consequentialism b y embracing rule-consequentialism. The sacredness of the individual is (in vir­ tually all cases) affirmed as a matter of rule, n o t simply as a contin­ gent matter of h o w the consequences of actions h a p p e n to balance out. 98

Reading the superstructure of Locke's moral theory as rule-con­ sequentialist also enables u s to make sense of some central but puzzling passages in the Second Treatise. For instance, Locke's (aforementioned) claim that " w h e n all cannot be preserved, the safety of the innocent is to be preferred" (II, 16) makes little sense on its face. Which party in a conflict is "innocent" would seem to b e a matter of w h a t the law of nature says about such situations; b u t it is only by k n o w i n g w h o is innocent, w e seem to be told, that w e can determine w h a t the law of nature requires in cases of con­ flict. This seems to help u s about as little as w e could possibly be helped. If, however, w e u n d e r s t a n d t h e "innocent p a r t y " n o t as the "party favored by the law of n a t u r e " but in a rule-consequen­ tialist way, things may b e easier to fathom. We can read "innocent p a r t y " as "that party w h o is of the type more likely to promote the preservation of m a n k i n d . " For instance, the party laboring o n a n d holding the goods is less likely to destroy mankind than the party trying to take them, so the former's position is to be preferred in cases of conflict between t h e m . Interpreting Locke as a rule-consequentialist can also help u s to see, for example, w h y acts that appear not to have a n y direct lifethreatening properties are nonetheless morally w r o n g . If the pres" "if we were never to d o but what is absolutely best, all our lives would go away in deliberation" (Fox Bourne, Life, 1:393). 54

LOCKE'S

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THEORY

ervation of mankind is the fundamental law of nature, it is initially difficult to see how, say, a petty theft (which in n o way threatens the victim's preservation) can b e wrong. But if w e u n d e r s t a n d the theffs morally significant property not to be its direct conse­ quences, b u t rather its being of a type that (as a rule) "tends against" the preservation of m a n k i n d , its classification by Locke as wrong seems more sensible. Indeed, Locke's "rule orientation" is nowhere d e a r e r t h a n i n his primary statement of the content of natural law: w e m a y n o t "take away, or impair the life, or w h a t tends to the preservation of the life . . . of a n o t h e r " (II, 6; m y em­ phasis). But if rule-consequentialism makes sense of m u c h in Locke, it also renders preposterous his claim that the content of the law of nature is " a s intelligible and plain to a rational creature, a n d a studier of t h a t law, as t h e positive law of commonwealths, nay possibly plainer" .(II, 12). H o w difficult it would be to determine the set of ideal rules that follow from the fundamental law of na­ ture can, p e r h a p s , be best seen by noting h o w little of the "ideal code" contemporary rule-utilitarians h a v e been able to convinc­ ingly articulate. Little w o n d e r that Locke later lost faith in our abil­ ity to do the whole of the job. But p e r h a p s certain of the ideal rules are sufficiently obvious that they will serve for the project in polit­ ical philosophy that Locke undertakes in the Treatises." * I cannot take up here more of the complexities of Locke's (possibly changing) views on our knowledge of natural law (who can know it, h o w easily, etc.)- While this is dearly an important subject (since natural law is properly only a real law for those w h o know its particulars), the only claim I wish to make here is that in the Treatises (my primary concern) Locke clearly believes us all capable of a knowledge of (at least the basics of) natural law: "reason teaches all mankind, w h o will but consult it" what the law of nature requires (II, 6; m y emphasis). Some refuse to think about it, and others (out of bias) refuse to apply it in their o w n cases (It, 124, 136). But it is promulgated to all rational persons (see ELN, 113-15, 187-89; note 19 above; Seliger, "Locke's Natural Law"; Grant, liberalism, l$4). I believe this is also Locke's view of matters m the Essay, although this is not as dear. Abrams argues (with Strauss) that Locke in fact does not consider the law of nature a real law either in the Essay, or (apparently) for most of his life after 1667 ("Introduction," 88-90). H o w one can deal with the Treatises o n this view, I cannot see. A n d notice that Locke allows that after Christ, at least, people d o have "clear knowledge of the lawmaker and the great rewards and punishments that await us" (R, 176 [243]). See Yolton's decisive rejection of Abrams' position in Compass, 1 7 8 - 8 0 ; Grant, Ut>tralism, 24-26, 39; Riley, Will and Political legitimacy, 8 6 - 9 0 ; Herzog, Without foun­ dations, 96-101; Monson, 'Xocke's Political Theory," 1 8 0 - 8 2 ; and note 3 above. Locke seemed confident that ordinary folk could see the basics of what the law required, even if they could not do the complex reasoning required to prove the principles of natural law: "A ploughman that cannot read, is not so ignorant but tie has a conscience, and k n o w s in those few cases in which concern his o w n ac­ tions, what is right and what is wrong. Let him sincerely obey this light of nature" 55

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The similarity between the view I a m attributing to Locke and those of certain utilitarian philosophers is, I think, too striking to i g n o r e . I n particular, there is a very close structural parallel be­ tween (the superstructure of) Locke's moral theory a n d that of John Stuart Mill. Like Locke, Mill begins with a ''first'' or "fun­ d a m e n t a l " principle (the principle of utility), from which w e can derive a set of "corollaries," "secondary principles," or "subordi­ nate principles." These are the ideal rules for advancing the end set by the fundamental principle (happiness) a n d make u p the b o d y of morality: the "standard of morality'' Mill tells u s , may be defined as " t h e rules a n d precepts for h u m a n conduct, by the ob­ servance of which a n existence [exempt from pain a n d rich in en­ joyments] might be, to the greatest extent possible, secured to all m a n k i n d . " We are (as w e have already seen) to follow the sec­ ondary principles, appealing directly to the first principle as a principle of resolution only in cases of conflict between secondary principles. As a consequence in Mill, s o m e actions which fail to maximize utility are nonetheless not morally w r o n g (those which are "simply inexpedient"—i.e., not serious e n o u g h for u s to think "a person ought to be punished in some w a y or other for doing [ t h e m ] " ) ; Mill's theory t h u s allows a " z o n e of indifference" within which o u r choices are not morally constrained. These similarities between Locke a n d Mill, of course, d o much 100

101

102

103

104

(King, Life, 2:78). The greatest part of mankind has n o time or inclination for proofs (E, 4.20.2); but "God has furnished men with faculties sufficient to direct them in the way they should take" (E, 4.20.3). Perhaps Locke is thinking here as Mill was when the latter wrote: "mankind must by this time have acquired positive beliefs as to the effects of some actions on their happiness" (Utilitarianism, chapter 2, paragraph 24). We may be able to know what we need to know, even if the rest of natural law remains "secret and hidden" (ELN, 115). While most people cannot be "perfect in ethics" and must sometimes "believe" because they "cannot k n o w " (in the sense of not being able to follow a long "train of proofs") (R, 179 (2431), this d o e s not rule out their use of commonsense analogues of the "scientific" demon­ strations of morality philosophers strive for (see Grant, Liberalism, 41), nor does it rule out proofs (demonstrations) of morality for those capable of following them. Locke's basic position is, for instance, very like the "theological utilitarianism" later defended by William Paley. I discuss below the similarities to the better known views of J. S. Mill. Aaron refers to Mill as Locke's "disciple" (John Locke, 361). My reading of Mill follows s o m e of the main lines of the interpretation offered by David Lyons in, for example, "Mill's Theory of Morality," and "Human Rights." 1 will not try to defend the reading here. "° Humankind, according to Mill, is constantly (if not altogether consciously) en­ gaged in the long-term enterprise of trying to articulate these ideal rules (Utilitari­ anism, chapter 2, paragraph 24), Utilitarianism, chapter 2, paragraph 10. Ibid., chapter 5, paragraphs 14-15. ,tlD

, r n

IIM

56

LOCKE'S

MORAL

THEORY 105

to explain the occasional claims that Locke is a utilitarian. There is, as w e have seen, some basis for such contentions. But, in the first place, it is not at all clear that Locke's consequentialism spec­ ifies the same " p r o p e r end of conduct" as does utmtarianism. Util­ itarians, of course, identify as the good happiness or utility. A n d while there is n o d e n y i n g that Locke often ties morality t o the p r o ­ motion of happiness (indeed, he frequently defines morality in these terms), h e just as often specifies " p e a c e " or the "preserva­ tion of m a n k i n d " a s the e n d of morality. This is not to say that there is a n y inconsistency involved in aiming at peace, preserva­ tion, and happiness together. Peace and preservation are obvi­ ously necessary m e a n s to happiness. But Locke does not seem to have in mind that moral rules should b e thought of as aimed at maximizing t h e total a m o u n t of happiness i n t h e world (as utilitar­ ianism is often characterized). Rather, Locke seems to believe that the rules of morality aim at insuring a decent, comfortable exis­ tence for all persons (period), without allowing for tradeoffs be­ tween persons designed to maximize total happiness. While some who threaten mankind may have to b e eliminated, more m u n d a n e utilitarian tradeoffs seem to have n o place. The common good is conceived of not additively, but distributively: society's laws m u s t be "made conformable to the laws of nature, for the public good, i.e., the good of every particular member of that society, as far as by common rules, it can be provided for" (I, 92; m y e m p h a s i s ) . 1 leave it to others to decide whether or not this is sufficient for as­ cribing to Locke a utilitarian theory of the g o o d . Much more im­ portant, however, n o moral theory (like Locke's) can be called gen­ uinely utilitarian which rests on divine will or divine command foundations. N o utilitarian can say "utility is not the basis of the 1

106

107

108

"* See, for example, Brogan, "John Locke and Utilitarianism." Others w h o have commented o n utilitarian elements of Locke's thought include Murphy, "Paradox," 268K SeKger, "Locke's Natural Law," 337; Drury, "Locke and Nozick o n Property," 40; Wood, Politics, 136-37; Ryan, Property and Political Theory, 22, 30; Macpherson, Possess roe Individualism, 194; Strauss, Natural Right, 235n. For counterarguments, see Sidgwick, Outlines, 178; White, Philosophy, 4 3 - 4 5 . ** The magistrate's goal ("the safety of all") is "the preservation, as much as is possible, of the property, quiet, and life of every individual" (ECT, 185; m y empha­ sis). On Locke's distributive view of the c o m m o n g o o d , s e e Tally, Discourse, 1 6 2 63; Tarcov, " 'Non-Lockean' Locke," 134, I by no means intend to argue here that the classical utilitarians mightnot also have held to a distributive conception of happiness. Indeed, Mill, in yet another rtriking similarity to Locke, can quite plausibly be read in this fashion. *" Brogan seems to s e e this, a n d quotes John Gay's remark that "the happiness of mankind may be said to be the criterion of virtue but once removed" ("John Locke and Utilitarianism," 80). As Gough argues, Locke "anticipates" utilitarianism ia>

57

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law or the ground of obligation, but the consequence of obedience t o it" (ELN, 2 1 5 ) . Insofar as Locke's moral theory is utilitarian at all, it is only utilitarian in its superstructure. The e n d of morality is set b y God. Locke's consequentialism concerns only the ad­ vancement of that end. But w e can see at work in Locke the same consequentiaBst strat­ egies that allow utilitarians their defense of libera? individualism. By employing ideal rule—-all 123

12

125

126

127

ID "The highest obligation that lies upon mankind" is "doing those things in this life which are necessary to the obtaining of God's favor, and are prescibed by God to that end" (L, 151). See Tully, Discourse, 175. Ashcraft, Revolutionary Politics, 494, 497. Baldwin, "Toleration." 43. Of course, Locke discusses the virtues extensively in the Education, but they are not there explicitly presented as derived precepts of natural law. The virtues most stressed in Locke's educational writings are self-de­ nial, civility, liberality, justice, courage, hardiness, humanity, industry, avoidance of waste, and truthfulness (see Tarcov, Locke's Education, especially 182). We will later s e e applications of this account of the virtues to Locke's theory of rights (pri­ marily in chapters 5 and 6, with respect to the virtues of liberality, justice, and avoidance of waste). Tarcov, " 'Non-Lockean' Locke," 136; and Locke's Education, 3. Exactly how such virtues are to interact with the realm of requirements and prohibitions (and the "robust z o n e of indifference" it leaves us) is not, 1 suspect, • question to which Locke gave any real thought. On bringing together different types of value, see Nagel, "Fragmentation of Value." 1 2 4

1 2 3

136

123

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THEORY

seem to square reasonably well with those original categories of duty Locke set out in n, 6. Duty (c) (self-preservation), of course, is simply equivalent to category (1). Duty (e) (obedience to supe­ riors) is, at least b y the time Locke wrote the Treatises, simply the duty to kteep one's promises (duty [f]), since only consent can give one person "superiority'.' of this sort over a n o t h e r . Unities -(f) and (g) ^fidelity a n d veracity) can easily b e subsumed u n d e r sev­ eral of our original categories. For prormse-breaking a n d lying n o t only do quite obvious private h a r m to the objects of the deception (hanning t h e m , at the very least, in their "liberty"), they also do palpable public h a r m , by undermining the fabric of trust essential to the stability of society (thus doing injury not only to the imme­ diate victim, but also to both the victimizer a n d the rest of society). Although it is a 'position more famously associated with H u m e , Locke defends throughout his writings the view that the fulfill­ ment of pacts a n d agreements is absolutely central to the preser­ vation of society a n d civilized life. "Every community among m e n falls to the g r o u n d " without the "faithful fulfillment of contracts" (ELN, 119); indeed, the obligation to keep promises is so impor­ tant that it even binds God (I, 6; &*, 195). While Locke does not argue so prorninently for t h e d u t y of veracity, truth-telling is for him just another kind of fidelity (notice the way in which " t r u t h and keeping of faith" are referred to together b y Locke in D, 14 and elsewhere ). A n d w e k n o w that for Locke "justice and truth are the common ties of society" (E, 1.2.2), and lying is a serious vice. Many others have since joined Locke in making the case for veracity as a n essential prop of society. 128

129

130

131

132

m

This claim, of course, requires further clarification. The "right of creation" by which God is o w e d our obedience is not properly a part of natural law {as we saw in 1.2). The duties of obedience o w e d by children and slaves are not o w e d by m e n in the full sense (i.e.; moral agents), so their status under natural law is unclear (and discussed in subsequent chapters). All other duties of obedience are consen­ sual. , N

This is a bit of theoretically unsound enthusiasm on Locke's part. More direct evidence of the importance of fidelity in Locke's moral theory (and of its necessity in supporting society) can be found in the main arguments of "Morality" (see Grant, Liberalism, 134n). On the centrality of keeping agreements in Whig natural law theory of the period, see Ashcraft, Revolutionary Politics, 190. "Faith and truth, especially in all occasions of attesting it upon the solemn appeal to heaven by an oath, is the great bond of society" (Some Considerations of the Consequences of the Lowering of Interest and Raising the Value of Money, 6). Education, 131: lying ranks one "with the most contemptible part of mankind." Kant (in his essay "On a Supposed Right to TeD Lies from Benevolent Mo­ tives") makes such a case. More recentry, it has been argued by Fried, Right and Wrong, 67-68; and Bok, Lying, 28. , M

131

1 3 1

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This leaves only d u t y (b) unaccounted for—the d u t y "to procure a n d preserve a life in society." It is in one way the least clear of the duties Locke lists (although it is far from unfamiliar in natural law writings). For it is more than any other (except the duty of selfpreservation) ambiguous in its status as a prescriptive, rather than a descriptive, law of nature. O n the one h a n d , it is easy to see h o w a d u t y in this area could be derived from the fundamental law of nature. We need society with others to b e comfortably preserved; only in society are o u r rational capacities best u s e d a n d fully d e ­ v e l o p e d . O n the other hand, when Locke elsewhere speaks of the "obligation" to enter society, h e is speaking n o t the language of moral obligation, b u t the language of psychological compulsion (of being "obliged"). God m a d e us social creatures, a n d p u t u s " u n d e r a necessity to have fellowship with t h o s e " of our kind (E, 3.1.1); w e are " u n d e r strong obligations of necessity, convenience, a n d inclination" to drive us into society (II, 7 7 ) . If w e are naturally driven into society, so that society is a virtu­ ally inescapable feature of h u m a n life (indeed, the social character of even Locke's state of nature is almost universally c o n c e d e d ) , it makes sense to suppose that the primary moral obligation with regard to society is not so m u c h to enter or procure it, b u t to pre­ serve it. A n d the preservation of society, of course, is best accom­ plished precisely b y doing the other duties defined by natural law. So, in a sense, the d u t y "to procure a n d preserve society" is not so m u c h an i n d e p e n d e n t d u t y of natural law for Locke, as a re­ statement of the duties w e have previously discussed. The one misunderstanding against which it is important to guard is the supposition that by "society," Locke here m e a n s polit­ ical society. While there is also a sense in which w e are " d r i v e n " into political society by the "ill condition" of the state of n a t u r e (II, 127) a n d "the pravity of mankind" (L, 152), any obligation to enter society can only be a n obligation to enter society in the infonnal, ,M

134

135

1 3 1

Tully, Discourse, 4 8 - 4 9 . See Ashcraft, Revolutionary Politics, 225. o n the related views of Codrington. 134 are born with dispositions to and desires of society; w e are by nature fitted for it" (Fox Bourne, Life, 1.-396); w e have a "love and want of society" (II, 101) and are "urged to enter society by a certain propensity of nature" (ELN, 157). See Tarcov, " 'Non-Lockean' Locke," 136; Gough, Political Philosophy, 26; Tully, Dis­ course, 48, , 1 !

Taylor's charge that Locke was an "atomist" seems wrong for the reasons stated above ("Atomism," 40-41). We can also see that in one sense Locke accepted Taylor's obligation "to belong to or sustain society" (40). He only denied (rightly, in my view) the obligation to belong to political society (see below). I return to these issues in 2.5. 66

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apolitical sense—the society of mankind (II, 128). If w e h a d a moral duty t o enter political society, of course, there w o u l d b e no necessity of securing the consent of every member of the common­ wealth (II, 96), since w e can lawfully compel people to do their d u t y . We "may" join political society (II, 95; my emphasis) (and we may quit it [DJ, 121]/ at least if w e are n o t express consenters); we are not obligated to do so-. While creating a political society (of a certain sort) m a y be the act that would best preserve (part of) humankind; w e should remember that it is the rules for preserving mankind (which allow u s liberty in o u r choice of polities), not the usefulness of specific acts with which the law of nature is con­ cerned. 136

137

The accounts of t h e content of natural law given by Locke in the Essays, then, are broadly consistent with that which w e have seen in the Second Treatise. While Locke never produced anything like a comprehensive list of moral duties, we can obtain from the sketch in II, 6 a good sense of h o w h e wished to complete step (5) of the demonstration of morality. I t u r n n o w to the moral rights defined by this same law of nature. 138

°* Alternatively, Locke may mean that while w e are obligated to enter some po­ litical society, w e arej not obligated to enter any particular one, but only the civil society of our choice. If so, our choice to enter remains free, and our consent re­ mains necessary to our leaving the state of nature. The language of the Second Trea­ tise, however, s e e m s to me to discourage this reading, especially (but by n o means only) w h e n Locke emphasizes the "freedom" and "liberty" of those w h o remain in the state of nature (while others are making a commonwealth) (e.g., u", 95, 97). Strauss, Natural Right, 221n; Lemos, Hobbes and Locke, 9 3 - 9 6 . By contrast, see Pangle's view that the key rule of natural law in Locke requires joining or setting up a government with, a monopoly on coercion (Republicanism, 245). Locke provides at least o n e other "list" of some of the precepts of natural law in the Essays; it includes d u d e s concerning "thefts, debaucheries, and slanders," "religion, charity, fidelity," a n d others (ELN, 193-97). All those duties, w e Can now see, are consistent with the original categories of duty with which w e began. w

m

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2.1. The Place of Rights in Locke's Theory In 1953 Leo Strauss wrote that in Locke's moral a n d political phi­ losophy, the " e m p h a s i s " is on natural rights, not on "natural d u ­ ties or obligations." These rights a r e "the foundation of the law of 7 nature,," Richard Cox followed Strauss' lead: " t h e law of nature r u m s o u t to be first a n d foremost concerned with the -right/ of self-, preservation, a n d only secondarily or derivatively w i t h ' d u t y t o others or to a transcendent order. . . . According to Locke, rights areJ^_jia|ureJabsolutely superior to d u t i e s . " The idea that in Locke rights are t h e "basic" or "primary" moral category (al­ though not always expressed in so Hobbesian a fashion) is a com­ mon o n e . Many other scholars, however, have advanced pre­ cisely the opposite view of Locke's moral theory. To David ^aulrueT^^w and dutyj not right, is t h e foundation of Locke's ethics." A n d James fully (apparently following John Dunn) Claims, " T h e law of nature is . . . the foundation of Locke's . . . natural rights"; "the priority of natural law" shows that Locke uti­ lized only " a limited rights theory." Again, it is easy to find ex­ amples of this "duty-based" reading of Locke's moral philosophy. Any body of work that inspires such diametrically o p p o s e d in1

2

3

4

5

6

1

Strauss, Natural Right, 248, 227. Cox, Locke on War and Peace, 8 4 - 85, 169. See also 151, 153, 163, 168, 189. Taylor writes that "the paradigm of primacy-of-right theories is plainly that of Locke" ("Atomism," 40); and Raz speaks of "the Lockian tradition of regarding rights a s the foundation of political morality or even of morality generally" ("RightBased Moralities," 182). See also Hacker, Political Theory, 268. It is common t o char­ acterize the " m o d e m theory" of natural law (to which Locke is taken to subscribe) as not a theory of law at aU, but a theory of rights (e.g., D/Entreves, Natural Law, 59). « "Why Ought One Obey God?" 432. Discourse, 63, 131. * See, for instance, Snyder, "Locke on Natural Law," 731; Ingram, "Natural Rights," 5; Macpherson, "Natural Rights," 228-29; Polin. "Tustice," 270; Ryan, "Utility and Ownership," 179 - 80; Kendall, Majority-Rule, 65. 3

3

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68

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terpretations can p e justly accused of being less clear than it o u g h t to be. Against such a charge Locke has no defense. But neither of the opposed interpretations, I think, adequately captures the true place of natural rights in Locke's theory. Strauss a n d Cox miss the target altogether; b u t Gauthier a n d Tully also err (although far less so) in overemphasizing w h a t Strauss seemed to completely ignore. I will argue for a view of Locke on which his moral theory is neither right-based nor duty-based. Indeed, unless I can show that rights in Locke are more%than mere secondary reflections of duties, I can hardly justify t h e extensive cuscus^on_of L o c k e ^ theory oTrights that follows. It is relatively easy to show that rights cannurtrave for Locke the kind of priority that is ascribed t o them by Strauss. I n the first place, if w e look not at the Treatises but at other works in which Locke discusses morality (as w e did in chapter 1), virtually all of his derivations a n d observations seem to concern law a n d duty, with hardly any mention of rights. This would make little sense if natural duties were really derivative from a foundation of natural rights. Even within t h e Treatises, however, there is little textual support for the priority of rights. Rights and duties seem to be roughly coextensive. Indeed, the denyatjgns Locjce^tresse5_seem mostly to proceed from duties to rights, noJJrom_Q^hts_to duties (as when parental rights are-saicTtcrari'se~ 'nt)rn £hat duty w h i c h is incumbent on t h e m to take care of their offspring" [II, 58]). And the right of self-preservation that Strauss a n d Cox allege t o b e foundational corresponds (as w e have already seen) to one of Locke's basic categories of duty, derived directly from the funda­ mental law of n a t u r e . 7

(y&£-f£. 'I

J

_

8

' That is, for Locke neither right nor duty is defined in terms of the other, derived from the other, or more central to the spirit of Locke's project than the other. See Waldron, Private Property, 6 4 - 6 5 , for these w a y s of characterizing right- and dutybased theories. Examples of duty-based theories are familiar; a good contemporary example of a right-based moral theory is that of Alan Gewirth. For more on these distinctions, see Dworkin, Taking Rights Seriously, 171-72; Raz, "Right-Based Mo­ ralities"; Mackie, "Can There Be a Right-Based Moral Theory?"; Louden, "Rights Infatuation." * See Dunn, Political Thought, 160. The only sense I can make of asserting the conceptual priority of rights over duties in Locke derives from the priority of God's rights over u s to our duties to obey His commands. Right is, in this miruin*! s e n s e , conceptually prior to duty, since the idea of God's rightful dominion is the foun­ dational notion in Locke's ethics. But as far as the rights and duties of mortals is concerned, the former have no obvious priority—logical, conceptual, psychologi­ cal, or historical-r-over the latter. Shapiro takes right to be prior to law and duty in Locke precisely because "God's natural right is . . . basic" (Evolution of Rights, 107, 100-101). But this s e e m s to lead him to assert both the priority of right for human69

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These arguments against the priority of rights in Locke suggest immech"ateiy_ that perhaps "duties have the kind ofjjriority that Strauss tries to give to rights. This second position is rather harder to argue against, a n d m y argument against it can be clearly stated only after a more specific exarnination of the kinds of rights at work in Locke's texts. But it is worth remembering as w e proceed that the same style of argument that is often used by Locke to de­ rive duties, sometimes has not duties but rights as its conclusion (e.g., I, 86). A n d w e should also remember how completely un­ surprised w e would be to hear someone describe the Second Treatise as a book abojALper^cu^-jjghts. . "Locke never'"gives us anything like a definition of a right in j u s ] works. jFerhaps the closest he~comes to one is irfhis claim tfiat (natural) "right is g r o j m j e ^ J n j h e fact that, w e have the free use of a t h i n g " ( f c L N , 1 1 1 ) . B u t carefuTattention to the ways in which Locke uses the concept of right in his arguments allows some safe assumptions about his position. We can distinguish (although Locke himself does not) four kinds of rights at work in the Trea­ tises." There is first (and least irnpqrfant) w h a t is commonly re­ f e r r e d to as a "liberty" orfl^berty rl^Rr/y (following Hohfeld ) 9

12

:kind (negative libertananism) and that Locke's position opens the door for secular Iibertarianism. The priority of Cod's right, however, speaks not at all about the pri­ ority of O U T right; and the removal of God only points u s toward Iibertarianism if right is prior for us, and ;/ God's Jaw is not replaced with a suitable secular substi­ tute (such as the moral law of Kant). * See, for example, Tarcov, " 'Non-Lockean* Locke," 131. Locke certainly empha­ sizes right-talk over duty-talk in many places, both in the Treatises and, for exam­ ple, in Education, 185-86. Tarcov speculates that Locke's emphasis o n rights over duties stems from his recognition that people will act with less resentment o n what is characterized as a right than on what is characterized as a duty (Locke's Education, 114). In this passage Locke contrasts right with law, which "enjoins or forbids the doing of a thing." The contrast, of course, is a familiar one, as in Hobbes: "right consists in liberty to d o or forbear, whereas law determines and binds to one of them" (Leviathan, chapter 14, paragraph 3). " Locke's use of various synonyms for right—power, title, privilege, claim, lib­ erty—does not, unfortunately, signal any substantive distinctions, as far as I can tell. Because of the legal origin of rights-talk, Hohfeld's analysis is an appropriate place to start talking about moral rights, despite the fact that Hohfeld discusses only the various types of legal rights (or "senses" the word "right" has in the law). See his Fundamental Legal Conceptions as Applied to judicial Reasoning, 3 5 - 6 4 . (Helpful discussions of different kinds of rights and of Hohfeld's distinctions can be found in, e.g., Brandt, Ethical Theory, 4 3 4 - 4 1 ; and Becker, Property Rights, 11-14.) The four legal relations Hohfeld distinguishes—liberty (or privilege), (claim) right (or right in the "strict sense"), power, and immunity—are usefully employed in classifying moral relations as well. I think we can clearly find the first three in the Trajfises as types of moral rights, while Locke's insistence on the imprescriptibility of natural 10

n

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i; This is a right only in the limited sense that o n e has a "right" to do what it is morally permissible to do (what is "alright"); a liberty right is the.mere absence of a n obligation to refrain. Such rights are not protected by correlative duties o n the part of others to re­ spect or allow performance of the right, a n d hence are "competi­ tive" with the liberty rights of others. Liberty rights exist w h e r e "the law of n a t u r e is silent." It is this kind of right that Locke must have in m i n d w h e n h e speaks of the right we have to appropriate b ^ o u r l a b o r j o r r t e particular u n o w n e d g o p j (e.g., II, 37). For h e ruTver^SerwtTto argue that others are bound" to allow m e to appro­ priate any particular good, that they m a y n o t labor o n a n d a p p r o ­ priate it first. The duties of others are only to obey the law of na­ ture in attempts to appropriate (by, e.g., not using violence, leaving enough arid as good for others, etc.) and to respect others' property once it has been established by labor. 13

Liberty rifihts'are, of course, familiar to readers of Hobbes, where they are t h e centaral moral concept in terms of which all oth­ ers are defined. I n L^cke/liberty rights have a m u c h m c ^ u m r t e d role, being relevant primarily in unprotected competitive contexts, of which (as w e will see) there are f e w . " The central concept of right employed by Locke in the Treatises is clearly that of a claim right, a kind of protected liberty (to which I will return momen­ tarily). 15

rights might be taken to signal a moral immunity (of a sort). The basic distinction between liberties a n d claim rights, of course, w a s at work in many natural rights ' theories before Locke, but the first really precise formulation came rather later, in Bentham, Pannomiai Fragments, chapter 3, section 2. On Bentham's contribution, see Hart, Essays on Bentham, chapter 7. " More precisely: X has a liberty right to d o A = X has n o obligation not to d o A. " See Brandt, Ethical Theory, 442-43. For Locke, "nature must be altogether ne­ gated before one can claim for himself absolute liberty" (ELN, 123} of the sort al­ lowed by Hobbes. Locke's state of nature, although "a state of liberty, yet it is not a state of license" (II, 6); Lockean liberties are both limited by and (largely) pro­ tected by natural law. Liberty rights will play an essential role in my analysis of the natural executive right (the right to punish) (see 3.5). Strauss' apparent belief that Locke recognized only Hobbesian liberty rights (Natural Right, 226-29) is, in the face of the textual evidence, almost incomprehensible. Given Strauss' belief that duty in Locke is secondary to and derivative from right, it may seem even more odd that the rights h e identifies are mere liberties—given that liberty is often de­ fined as the area where law is silent (which seems to give law priority). But if one begins (as in Hobbes) with absolute liberty, unbounded by duty, then o n e can co­ herently define obligation in terms of voluntary transfer or renunciation of right. w

A protected liberty is a liberty right that others have a duty (to someone) to allow the exercise of. A claim right is a protected liberty where others' duties are owed to m e holder of the liberty (as opposed to some third party), so that the rightholder (and not s o m e third party) has a claim against the duly-bound partes. 71

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A slightly more obscure type of right w e can find in Locke is w h a t w e m a y call a^S^L4azwerjA p o w e r is a "higher order" right—a moral ability to change or impose other people's (claim) rights or d u t i e s . In exercising m y p o w e r s , I alter the moral situa­ tion of others; they are "liable" or "subject" to these powers. The general right each person has (in Locke) to take pro^rty^Jofm^ 16

ousTylinowned property a n d estabUshing exclusive rights in it, w e impose on others n e w duties to respect our claims a n d t h u s limit their rights of free action. We m u s t b e careful here t o distinguish the p o w e r to take property (in general) from the liberty w e have to take some particular good as our o w n . We are only e m p o w e r e d to take some things as our own, not any specific thing. But w e are as a result at liberty to take any particular thing (as long as it is u n o w n e d , n o t m o r e than our share, etc.), as is each other person. It is in this sense that each individual is b o m with (or "to") a right to property (and in this sense that, e.g., the French Declaration's claim of a natural a n d imprescriptible right of property is best r e a d ) . We are born not wjjfcjajjght to any^ specific g o o d s b u t withapowe^^ goods (a right not to be ejcjudejSomTjurrs ~The~tTu?d a n d central category of rights in Locke's moral theory is (what w e have caUedllEJairn rights^rights ^ a l _ ( u r u ^ e _ ^ b e r t y rights, b u t like powers) do correlate with the duties ot o t h e r s ^ a 15

r

'* Here again I follow Hohfeld's analysis of legal powers. Such rights are "higher order" in the sense captured by Hart's distinction between the primary (requiring) and secondary (enabling) rules of a legal system (Concept of Law, chapter 5). D e n Hartogh also has recognized Locke's use of the idea of a moral power ("Tully's Locke," 665-66). " The right in question (to which we will return in chapter 5) is Tully's "inclu­ sive" property right—the right to take and use one's fair share of the commons, Tully takes this right to be a simple claim right (Discourse, 61). I think it is better viewed as a power, for the reasons stated below. '* "The final end of every political institution is the preservation of the natural and imprescriptible rights of man. These rights are those of liberty, property, se­ curity and resistance to oppression" (Declaration of the Rights of Man and the Citizen, article 2). '* Moral powers, like legal ones, can be either perfect (requiring n o o n e else's participation) or imperfect (requiring the willing cooperation of others). The power to make property is perfect (as is the legal power to make a will, for instance). The power to make contracts is imperfect (like the legal power of a priest to marry peo­ ple). 1 0

On right-duty correlation, see Ross, Right and the Good, 4 8 - 5 6 ; and Lyons, "Correlativity of Rights and Duties." In thus reading Locke, I agree with, for ex­ ample, Tarcov, " 'Non-Lockean' Locke," 132; Lemos, Hobbes and Locke, 75; and Scott-Craig, "John Locke and Natural Right," 42. Shapiro denies that Locke thought in terms of correlative rights and duties (Evolution of Rights, 105), although 72

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doctrine of duty-right correlation is dearly implied in most of t h e discussions of duties and rights in the Treatises (and is strongly suggested in o n e passage in the Essay ), although Locke never stated such a dextrine explicitly. H e did, of course, k n o w and admire the work of Pufendorf, w h o had explicitly stated it. A n d the impression created b y Locke's discussions is surely that for every duty there is a (logically/ correlative right to the performance,of that duty, held bv^anomer (or others); a n d that for every right (ex^djn|[Hbe,rJfes^Jwjich rsTtafi^ereafter ignore)^there is.a correl­ ative duty on all ojpers to allow the e x e f c T s ^ j Q f J r ^ n ^ t . ^ J P e r h a p s the best iHustratibns of Locke's comrrnjrrjgnt to this view are his t r e a t m e n t s ^ frights a n d duties of charity (1, 42), the rights a n d d u S e T i c o r ^ r n e d with the care of children (L 8 8 - 89), a n d the fightsand duties associated ^^rrT?trr;' gjHiral p g i i a l i t y ^ n . j i ^ . Within the class of claim rights, however, w e can distinguish two types (our thifd^pdjourth, kinds of rights in Locke). The first type we m a y cal^'^optional claim rig^"JThis type covers most of the familiar Lockean" rre'eHomsr^ rights w h o s e exercise is 21

22

:

7

he, seems to offer n o .defense of this position. Finnis similarly claims that Locke means by "right" primarily "liberty" or "power," not "claim right" (Natural Law, 228); but the passages he cites as support merely use the words "liberty" and "power," uses that in n o w a y correspond to the Hohfeldian categories. Locke much more often than n o t clearly means "claim right" w h e n h e u s e s w o r d s like "power," "privilege," and "liberty," as the contexts of the uses noted by Finnis show deci­ sively. M

"Sometimes die foundation of considering things, with reference to one an­ other, is some act whereby any one comes by a moral right, power, or obligation to d o something. Thus, a general is o n e that hath power to command a n army; a n d an army under a general is a collection of armed men, obliged to obey one man" (E, 2.28.3). "Not every natural faculty to d o something is properly a right, but only that which concerns s o m e moral effect on other men. . . . This faculty takes o n the nature of a real right, at the moment w h e n this moral effect is produced in the rest of mankind,|that other m e n may not hinder him, or compete with him, against his will" (Pufendorf, De Jure Naturae et Gentium Libri Octo, 391 [3.5.3]). Locke's is thus a doctrine of two-way correlation, which implies, for instance, the absence of imperfect duties (a claim for which I argue in 6.4). I think, as a consequence, that Mendus is mistaken w h e n she centrally relies o n the claim that actions can be wrong in Locke even though they violate n o rights (Toleration, 4 0 41). There are, of course, immediate problems with discovering the correlative rights for certain duties in Locke: for example, the duty to preserve yourself (who has a right that y o u d o this?), or the duty of a parent to care for his child (how can the chad have a right to care, if that child is not under the law of nature?). I discuss the first of these problem cases in 2.4 and the second in 4.3. What Golding calls "option rights" ('Towards a Theory," 546) and Feinberg calls "discretionary rights," defining them as follows: "I have a discretionary right in respect to X w h e n I have an open option to X or not X correlated with the duties of others not to interfere with m y choice" ("Voluntary Euthanasia," 105). O n dis­ cretionary rights, see also Feinberg's Social Philosophy, 69 - 70. 2

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protected by duties of noninterference on others, but w h o s e exer­ cise is optional for the rightholder. While I n e e d not trade y o u the apples I gathered for your corn, should I decide to d o so, others are b o u n d t o permit m e to exercise m y right t o d o this. I n general, I am entitled to determine the course my life will take (within the b o u n d s of natural law), without interference (beyond "competi­ tive" interference) from others. O n the other h a n d , Locke also talks of rights that are held as a direct consequence of duties that the rightholder h a s . If I have a d u t y to do A, Locke believes, 1 must have a right to do A (which, in turn, correlates with others' duties to allow m e to do m y duty). This kind of right is, for Locke, a trivial consequence of possessing a duty; for it seems obvious that if something is my moral dijtv, I s h o u l d b e left free b y others t o perform it. We can call this ^ ' m a n - J [^[atory^claim right"](using Feinberg's term). Locke's coiruTutment to tfiis kind of right can be seen in the substantial overlap of rights a n d duties throughout the Treatises, but is probably clearest in his discusjion^oi-parental righteoyer children. As w e h a v e already * seen, LocKe^lerives parental rights 'd^ectiy"frorn parents' d u t y t o care for their offspring (Q", 58), and h e proceeds by making it clear (that parental rights might just as well be called duties (II, 67, 69); all parents h a v e a d u t y to "preserve w h a t they have begotten" (I, 88; n, 56), and, as a trivial consequence of this duty, a right to care for a n d control their children, held against the world at large (i.e., a right to be allowed to do their duty). But the overlap of rights and duties is not limited to these isolated instances. Indeed, Locke clearly m e a n s to cover the whole of natural law; for the natural rights Locke specifies in n, 1 1 (the right of self-preservation and the right of preserving all mankind [in this case, all others]) are simply rights to do precisely what (as w e have seen) Locke several paragraphs earlier says we have a d u t y to do (II, 6). N o explana­ tion of the inference from d u t y to right even seems necessary to Locke. We can conclude, then, that for Locke "X has a d u t y to d o A " entails "X has a (mandatory) right to d o A " (and also "Some other person or persons has a right that X do A " ) ; sirnilarly, "X 25

1 5

This claim, for all its intuitive plausibility, is, I believe, false. It s e e m s true that a liberty right to d o A is a trivial consequence of a duty to do A, since what is required must be permissible. (Here Harts discussion of unilateral and bilateral liberties is useful [Essays on Bentham. 166-671.) A claim right to d o A, however, seems not to be even a nontrivial consequence. Anywhere that duties can be com­ petitive w e will find counterexamples to Locke's (implied) position. If you and I each promise our s p o u s e s to buy a particular (one-of-a-kind) lamp w e have each seen, each of us has an obligation to buy the lamp (and is at liberty to do so). But 74

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has a (mandatory or optional) right to d o A " entails "All others have a d u t y n o t b^interfere with X's doing A." With this u n d e r s t a n d i n g in hand of the kinds of rights Locke recognizes (or is committed to recognizing), w e can return to our problem of the relative priority of rights a n d duties in Locke's the­ ory. The temptation to see moral duties as foundational a n d rights as secondary or derivative arises naturally from several sources. First Locke's derivation of (mandatory) rights directly from the possession of duties seems to suggest that rights are simply.means t o ^ ^ ^ r f o r m a n c e . o f . o u r duties^ The point of a right is, o n this viewsjmplY to s e c u r e ^ h e j r e e d o m necessary to p u r s u e o u r d u t y to preserve m a r u ^ d ^ s | e c o n d , one m a y think of rights as deriv­ ative or secondary because of the way that natural duties limit the extent of our, rights We are free, after all, only "within the b o u n d s ' of the law of n a t u r e " (H, 4), and a limiting role seems to give pri­ ority; rights are defined negatively, as w h a t is compatible with dutyT

27

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neither or us has as a consequence a claim right to the lamp or a right that the other permit us to buy the lamp. Similarly, if each of us has (as Locke believes) a duty of self-preservation, a n d there is food enough only to feed one of us, neither of us has a right that the food not be taken and eaten by the other. Locke may not have considered such cases, perhaps believing that duties cannot be competitive in this way ("virtuous actions d o not clash . . . : they kindle and cherish one another. . . . The duties of life are not at variance with one another" (ELN, 213]). But even Locke allows for t h e possibility of conflicting rights and duties (e.g., in II, 183, discussed above in 1.4). Indeed, they seem likely to be relatively common where promissory duties are at issue. And in the absence of a decisive factor for settling conflicts (say, the innocence or greater need of one party), w e will have competitive, "first-comefirst-served" situations. Stell argues that duties cannot even imply liberty rights, because the idea of a "mandatory liberty" is too paradoxical to allow ("Dueling," 9). But this seems to misunderstand the notion of liberty (i.e., mere moral permis­ sibility, not moral freedom of some fuller sort) at work in the idea of a liberty right. See Feinberg's response to Stell ("Voluntary Euthanasia," 107). * Tully and Ashcraft, 1 think, see duties as foundational a n d rights as derivative precisely because they, hold this view of Lockean rights. "The priority of natural law renders all rights as means to this end" (i.e., the end of "supporting and com­ forting" humankind); "The law of nature is . - , the foundation of Locke's three natural rights. . . . M e n have natural rights because they have natural duties" (Dis­ course. 131, 63). See also Ashcraft, Locke's Taw Treatises, 1 0 9 , 1 2 6 , 1 3 5 , 138-39. Oth­ ers who seem to share this view include Polin ("Justice," 270) and Kendall (Major­ ity-Rule, 68). This seems to be Dunn's view: "What defines h u m a n life is a set of duties and the right to promote happiness in any way compatible with these duties. It is a mistake to see man's right to promote his happiness, wide though it may be, as having a priority over his duty. Indeed the scope of this right is defined by the limits of its compatibility with 'our main duty which is in sincerity to d o our duties in our calling as far as the frailty of our bodies or minds will allow us' " (Political Thought, 218). D u n n has more recently suggested as well the view ascribed above lo Tully and Ashcraft ("What Is Living?" 16, 20). v

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But neither of these reasons for regarding rights as secondary in Locke can survive careful scrutiny. The rights we have that derive from our o w n duties (our mandatory rights) are only one kind of right each (mature, noncriminal) person possesses. We also have other rights that are the logical correlates of the duties of others, rights that create moral space for our o w n activities, free from the interference of others. O u r mandatory rights are mere m e a n s to the e n d of doing our duty. O u r optional rights, however, are p r e ­ cisely rights to act freely when w e are not engaged in doing our duty; indeed, this is w h a t distinguishes t h e m from m a n d a t o r y rights. We have n o ^ r i j j a y o j | c ^ between our required ^ r t o r m a n c e s a n d the boundaries set by natural law's prohibitions'there "is ample, space for free activity that is not simply a. n e a n s to doingjpur duty. This "robust zone of indifference" that w t f h a v e seen Locke embraces (1.4) is a zone of protected liberty that others are duty-bound to respectJ^o_ur_optional rights are in this way the correlates of others duties (and not merely conse­ quences of Quxown duties^as are our mandatory rights), it seems tonT^gjTo^cjgar^sense to a f g u ^ ^ ^ g ^ t i e s ^ y e ^ o r r ^ h o w prior fo rights. They are conceptually connected aspects of the very same moral relationship, neither of which has any obvious priority. 28

Similarly, while it is correct to claim that our optional rights are limited by the d e m a n d s of duty, the very duties that limit u s are correlated w i t h the rights of others. It is, then, as m u c h (others') rights that limit our rights as (our own) duties, "breach of laws being mostly the prejudice and diminution of another m a n ' s rights." Nothing here suggests the priority of duty or secondary status for rights. The precepts of the law of nature define duties a n d rights in the same logical breath, not first duties and then, as a necessary means to performing them, rights (and, finally, the cor­ relative duties on others to allow us to do our d u t y ) . 29

30

w

Interestingly, o n e defender of the priority of duty in Locke inadvertently makes quite dear w h y the view must be wrong. Ashcraft contends that all Lockean natural rights are "derivative from obligations that individuals o w e to God that they cannot renounce" (Revolutionary Politics, 494, 499). But if individuals cannot renounce these obligations, they cannot renounce (transfer, dispose of) the man­ datory rights to perform those obligations. If all Lockean rights are mandatory in this way, no rights can be transferred or renounced, rendering morally impossible all contracts and agreements, including that which creates civil society. Locke's po­ sition requires the optionality of (some) natural rights. " "On the Difference Between Civil and Ecclesiastical Power." 113. It is, of course, true that w e can lose our rights (by forfeiture) in a w a y w e cannot lose our duties (although why w e cannot do so in Locke is not altogether clear). But w h e n w e thus lose our rights, others lose duties (toward us). It makes x

76

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The point I wish to stress here is only that natural law is for Locke as m u c h a protective order as it is a restrictive o n e . Persons' natural condition is " a state of perfect freedom to order their ac­ tions, a n d cUspose of their possessions, and persons as they think fit" (II, 4); I h a v e "a liberty to follow m y o w n will in all things, where t h e rule prescribes n o t " (II, 22). The optionality of action (and the moral protection* for whatever choices w e make) within the wide sphere of t h e permissible is clearly implied in Locke's claims. D u n n has\argued that t h e freedom Locke ascribes to u s is only what is necessary for u s to d o God's bidding (to pursue " t h e calling"). But while this may be o n e way of characterizing w h a t Locke h a s in mind, it is, I think, a misleading way. O u r "uncon­ trollable liberty, to dispose of. . . person or possessions" (II, 6) (as always, within t h e bounds of natural law) is in part a moral free­ dom to p u r s u e o u r o w n life plan, independent of t h e call of duty. We have n o t only the rights to preserve ourself a n d others (rights to do our duty), b u t rights n o t to be harmed or interfered with (our optional rights) even w h e n w e are not doing our duty, but only pursuing our o w n innocent e n d s . Indeed, using our abilities to provide for ourselves t h e conveniences of life is precisely part of what God intends for us, so w e m u s t each be left free to pursue those projects that we c h o o s e . Each person has naturally "a right of freedom to his person . . . , the free disposal of it lies in him­ self" (II, 190); each has " t h e right of innocent deUghts" (II, 128). Wherever others are not "prejudiced," "every m a n m a y consider what suits his o w n convenience, a n d follow what course he likes best" (L, 146, 136). The law of nature is consistently described by Locke as a b o u n d a r y to our free pursuits, n o t as that which alone gives these pursuits their point or only legitimate e n d (see, e.g., the clear statement of this position in n, 59). 31

32

33

34

no better sense, then, to say that possession of rights is conditional on the perfor­ mance of our duties, than to say that possession of duties is conditional on others' respecting our rights. • Political Thought, 121, 245, 252, 264. So pursuit of o u r b w n innocent projects counts as an "indirect form of ethical behavior" (Ashcraft, Locke's Two Treatises, 235-36). See 4.5 below. Andrew argues that liberals, Locke included, are committed to "the right to d o wrong" (Shylock's Rights, 12-13, 120, 131-32, 194). But Locke's o p ­ tional rights are only rights ic d o w h a t i s not best, not rights to d o w h a t i s rorong. Moat of us believe, with Locke, that doing what is not best is often permissible, and that it would be confused to equate morally suboptimal behavior with wrong­ ful behavior (as Andrew appears to). 5 0

M

34

Even where Locke describes the law as "not s o much the limitation as the di­ rection of a free a n d intelligent agent to his proper interest," h e g o e s on to charac­ terize the law as a boundary: freedom is "a liberty to dispose, and order, as he lists, 77

C H A P T E R TWO

It is important to the force of my claims here, I think, to fully understand h o w the moral freedom determined by o u r optional rights is related to t h e fundamental law of preserving m a n k i n d . For in one sense, i t i s surely true that the " p o i n t " of o u r freedom i s t h e best Preservation ofmankrKd. Freedom is " t h e fence toour preservation" (li, T7). Mjmkjnd is best^preserved w h e n the laws of nature are obeyed; anoTtruTSnpnes tnat'tneTreeciom t h a f i s leftto us a n d protectecTby' the law of nature is also best for the preser­ vation of m a n . But to say that mankind is best preserved w h e n left a large sphere of (protected) liberty (analogous, say, to Mill's claim that h u m a n k i n d is happiest in such conditions), is rather different than to s a y that this moral freedom is only a freedom to d o w h a t the preservation of m a n requires. To confuse t h e t w o claims is to confuse w h a t w e m a y legitimately p u r s u e with our freedom (its particular objects) with w h a t ultimately justifies o u r freedom. These can be (and are, I think, in Locke) quite different matters. M a n k i n d is rx?pt p r ^ p r " ^ a v h P n - i t i c tefr.a Urga. ai-M at ,f>Pftdgrr>

{within the boundaries spf by t h e direct requirements of preserv­ ing self a n d others), regardless of w h a t (innocent) e n d s w e choose to use o u r freedom to p u r s u e . By analogy, Mill argues (rrTOw Lib­ ert}/) that leaving h u m a n k i n d a large realm of liberty will best pro­ mote our happiness (or our "permanent interests"). But this does not require him to argue that each person can only legitimately use personal liberty to d o w h a t best promote's h u m a n k i n d ' s happi­ ness (or even personal happiness). The justification of our freedom is general utility, b u t its legitimate employments range far b e y o n d the pursuit of this e n d . In Locke, then, the mandatory rights are rights to d o what is intimately concerned with the preservation of self a n d others, as required by our natural duties. These duties set the limits on a n d protect our freedom to d o w h a t w e choose in those areas not inti­ mately concerned with preservation (the sphere of our optional rights of "innocent delights"). Many interpretations of Locke—lib­ ertarian, Straussian, Marxist—have stressed (for various reasons) the latter realm of optional rights, arguing for the priority of rights in Locke, a n d painting a picture of the Lockean person as righthis person, actions, possessions, and his whole property, within the allowance of those laws under which he is" (II, 57). The importance of optionality to Locke's views is revealed in his frequent use of the words "uncontrolled" or "uncontrolla­ ble" to describe the liberty of persons (e.g., [I, 6; II, 87; Fox Bgume, Life, 1:178). Tarcov nicely characterizes the realm of choice provided by Locke's moral theory (Locke's Education, 7). See also his critique of Dunn's views on "the calling" (127, 136-37); and Medina, Social Contract Theories, 35-36. 78

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holder without responsibilities, free to p u r s u e unlimited accumu­ lation of material igoods and other private aims without regard for o m e r s . ^ W e have seen (and will see in subsequent portions of this work) how mistaken this view is. Other interpreters have reacted with justifiable vigor t o these bare a n d misleading caricatures of Locke, emphasizing the former realm of mandatory rights and the justification of all rights in terms of the fundamental law of nature (through stressing Locke's theology). But this emphasis has been, I think, if n o t equally, at least also one-sided. We will find the place of rights in'Locke's theory between these extremes, in a form of "pluralism" that acknowledges neither right nor duty as pri­ mary, basic; or fundamental. 36

2.2. Equal Rights and Special Rights Nowhere iri his writmg$_does Locke present a complete or system­ atic accounting of ourjmgral rightsjjust as with the duties defined by natural law, Locke contents himself with mentioning some broad categories, of rights (e.g., in D, 128 and II, 190). I will again try to gather together (in this section a n d the next) the bits and pieces of text in w h i c h Locke discusses rights in order to display the ovexa)} structure of his theory of rights. At times Locke seems less interested in telling us what rights w e have than in arguing that whatever rights w e have, w e all possess them equally. H i s polemic against Filmer, of course, requires this emphasis, as one of his central concerns is to deny Filmer's view that political authority is natural—that is, that it consists of rights of dominion that some persons naturally possess over others {hence, a natural inequality of rights). Nonetheless, it is initially difficult to u n d e r s t a n d Locke's claims about the equality of rights 37

* Some of Locke's overzeafous affirmations of our natural freedom (noted above) encourage such misinterpretations, as w h e n Locke (incorrectly, o n his o w n terms) claims that man is "absolute lord of his o w n person a n d possessions" (II, 123). * The kind of "pluralism" I have in mind here is discussed in 2.4 and amounts lo little more than the view that no single kind of moral consideration or value is primary (all others being derivative from it). See the arguments for pluralism (which is, in m y view, the correct stance) in Raz, "Right-Based Moralities"; and Miller, "Rights a n d Reality." A pluralistic reading of Locke is briefly hinted at i n Scott-Craig, "John Locke and Natural Right," 46. Filmer, Patriarcha, I, 1-4; HI, 14. On this issue, of course, Hobbes and Locke are allies, marking the oddness of traditional readings of Locke that took him to be attacking Hobbes (as in, e.g., Sabine, History of Political Theory, 524). On the signif­ icance of Locke's claims of natural equality within the political climate of his day (and the association with anarchy and "rabble-rousing"), see Ashcraft, Revolution­ ary Politics, 161. 3 7

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in the face of apparent inequalities of right in everyday life (and in illustrations of these supplied by Locke himself). W h e n Locke's point in these claims is clearer, so will be the structure of his the­ ory of rights. Readers of the Treatises first encounter a defense of the equality of rights in I, 41 (where Locke is chiefly concerned with rights in external goods—i.e., property rights in the narrow sense): It is more reasonable to think, that God w h o bid mankind in­ crease a n d multiply, should rather himself give t h e m all a right, to make use of the food a n d rayment, a n d other conve­ niences of life . . . than to make t h e m d e p e n d u p o n the will of a m a n for their subsistence, w h o should have power to de­ stroy t h e m all w h e n h e pleased. Here Locke argues for equality of ("inclusive" property) rights by rule-consequentialist reasoning from the fundamental principle of God's will. Mankjnd_will b e best preserved if these rights are held equally, instead of a n u n e q u a l distribution that makes one person d e p e n d e n t on" anotherT"But Locke offers another (more general) argument for equality of rights, one that is more central in the texts and does not in this way depend on God's will in its first premise. This style of argument is hinted at in I, 41, where Locke claims that no m a n is any "better than other m e n , " but it is not stated fully until I, 67: [It] is very evident [that] m a n has a natural freedom . . . , since all that share in the same common nature, faculties a n d powers, are in nature equal, a n d ought to partake in the s a m e c o m m o n rights and priviledges, till the manifest a p p o i n t m e n t of God . . . can be produced to show any particular person's supremacy, or a m a n ' s own consent subjects him to a s u p e ­ rior. The same a r g u m e n t is repeated prominently at the start of the Sec­ ond Treatise, w h e r e Locke claims that the natural condition of man is A state also of equality, wherein all the power a n d jurisdiction is reciprocal, n o one having more than another: there being nothing more evident, than that creatures of the same species and rank promiscuously born to all the same advantages of nature, a n d the use of the same faculties, should also b e equal one amongst another without subordination or subjection, 80

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unless the Lord a n d Master of t h e m all, should by any mani­ fest declaration of his will set one above another. (II, 4 ) We have seen already (1.3) one ambitious u s e by Locke of t h e "fact" of natural equality—his derivation (using Hooker's argu­ ment) of substantive duties not to h a r m (and to help) others. Here Locke's goals are m o r e modest. Whatever rights w e have, w e m u s t have equally, unless God h a s clearly granted exceptional rights to one_person or anotheTOr w e nave by_ourown consentcreatecHor another greater right than that individual initially h a d . This moral equality, fox Locke, follows simply (indeed, without explanation) from natural equality of "faculties a n d p o w e r s " (which here refers to physical, nofcrapral, powers). 38

This styleof argument is by now familiar. It begins b y justify-' ing a presumption of moral equality and challenges nonegalitarians to advance a reason justifying some claim of inequality in rights. Consent would justify inequality, but this could not ex­ plain natural, moral inequality (consent can create only "artificial" inequality, in H u m e ' s sense of that word). God's appointment would also d o the job, b u t there is (at least in interesting contem­ porary cases) no evidence of any such appointment. A n d physical inequalities that might be taken to ground moral inequality do not, Locke seems to say, exist. We must, then, assume a natural equal­ ity of rights (and duties). 39

N o w Locke is n o t so silly as to believe that people do not have all sorts of physical inequalities (in intelligence, strength, beauty, etc.). But not just any kind of physical (or mental) inequality will ground a n i n e q u a u t y in rights. It seems that the only kinds of in­ equalities relevant t o differences in rights are those inequalities that bear o n o u r ability to exercise or enjoy tbos* righ.ts-a.nH w h a t they protect.*' Since natural rights are protections for freedom to preserve Oneself (and others) a n d to formulate a n d p u r s u e projects and a plan of life, only those traits that determine o n e ' s capacities in these areas will b e relevant to the justification of rights. We know that all p e r s o n s desire theii o w n preservation a n d happi­ ness. These are universal "innate practical principles" (of the sort Locke's position allows: E, 1.2.3; I, 86), which seem to follow from mere h u m a n corporeality a n d consciousness. Similarly, all persons 1

w

One well-known contemporary argument that approximates the one w e find in Locke is that in Wasserstrom, "Rights, Human Rights," especially 51-32, 5 4 - 5 5 . * On the presumption of* equality, see, for example, Feinberg, Social Philosophy, 99-102; and Becker, Reciprocity, 6 0 - 6 1 . « Wasserstrom, "Rights, Human Rights," 54-55. 81

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are rational, by definition, for the concept of a person that is at issue i n moral argument (as w e s a w in 1.2) is t h a t of a "corporeal, rational being." In these respects, all persons are equal. N o person is any better than another at being a person. A n d since the desires for preservation a n d happiness a n d the rational capacity for plan­ n i n g a life a n d living freely within the law (H, 57) seem to b e pre­ cisely those traits relevant to exercising and enjoying rights, all persons are equal as well in their possession of whatever moral rights there are. Locke's argument can supply ready answers to at least m a n y of the objections that spring to mind in reaction to the egalitarian p o ­ sition. The familiar complaint that there are simply no respects in which "all m e n are e q u a l " is avoided by foregoing u s e of the nat­ ural concept of m a n . Those h u m a n beings w h o are not rational a n d purposive are simply n o t persons in the relevant sense, a n d do not possess the equality of rights that persons enjoy. To the further objection that while all " p e r s o n s " may b e rational, they are certainly n o t all equally rational (and so, perhaps, should not enjoy equal rights), Locke can respond that it is only some minimum threshold of rationality that must be reached for one to be capable of exercising and enjoying rights (the trait relevant to possession of rights). To be an (equal) rightholder (i.e., a person), a n individual must have an "understanding of his o w n to d i r e c t l u s will" a n d "regulate his_actions" (11. 58). The individual can then ratio­ nally p u r s u e personal good and the good of others, withTthowledge~oT the law ot nature a n a the boundaries to action it estab­ lishes. 41

42

W i t h this threshold of rationality, Locke argues, come self-con­ sciousness a n d purposiveness: Person . . . is a forensic term, appropriating actions a n d their merit; a n d so belongs only to intelligent agents, capable of a law, a n d happiness, a n d misery (E, 2.27.26); we m u s t consider w h a t person stands for;—which, I think, is a thinking intelli­ gent being, that h a s reason and reflection, a n d can consider itself as itself, the same thinking being in different times a n d places (E, 2.27.11); It is b y the consciousness it h a s of its pres­ ent thoughts a n d actions, that it is self to itself now, a n d so will b e the same self, as far as the same consciousness can extend *' On this skeptical stance, again see Feinberg, Social Philosophy, 8 8 - 9 4 ; sec also Williams, "Idea of Equality;" and Vlastos, "Justice and Equality." See Gewirth, Reason and Morality, 122-23. 4 2

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to actions p a s t or to come (E, 2.27.10); All of which is founded in a concern for happiness, the unavoidable concomitant of consciousness; that which is conscious of pleasure a n d pain, desiring that that self that is conscious should be h a p p y . (E, 2.27.26J* 3

AB persons, t h e n , are not only rational (which implies self-control of an acceptable degree and the ability to follow laws); they are self-aware p u r s u e r s of e n d s , so that it matters to each person both hpw things turn ojut a n d by w h a t m e a n s they are brought about (persons are.capaple of happiness a n d deliberation). Persons can reflect on a n d evaluate the e n d s they p u r s u e a n d the m e a n s they adopt. I t p i n J h i s combination ai-txa^h-^at-^uE^a^^taial equality consists. Unlike a mere thing, a person has a will (the "'eaparity^foracting o n reasons, on the rational recognition of w h a t ought to be ) a n d a unique point of view from which to view the world a n d enter it purposively. Each individual " h a s shoejSlLinto which each of u s can p u t ourselves. (Comparison with a more T f o r t f i a n ^ s i t i o n on p e r s o n h o o d [and on the foundation of moral equality] is again; I think, unavoidable.) This secular side of Locke's a r g u m e n t for moral equality sits perfectly comfortably with religious respect for G o d ' s creations a n d God's desire that they be effectively preserved. The secular a n d religious argu44

45

117

** For one interesting interpretation of what Locke here means by "forensic," see Alston and Bennett, "Locke o n People a n d Substances," 4 3 - 4 6 . ** Compare here Nozick's basic moral characteristic of being a "value-seeking I" (1.3, note 73). Persons are moral agents (see Buchanan's brief discussion of the main elements of moral agency in "Whaf s So Special about Rights?" 76). A person for Locke is a "rational, intelligent, concerned, rule-following being w h o acts in the world and w h o is conscious of those actions as his" (Yolton, Locke, 31); persons act intentionally, out of deliberation over the right and the good (ibid., 29, 35; see also Yolton and Yolton, "Introduction," 17). See Lomasky's remarks o n "project pur­ suers" (throughout Persons, Rights) and Becker's comments on the importance of purposiveness and self-consciousness to rational agency (Reciprocity, 6 6 - 7 0 ) . * Locke's stated definition of will, of course, is less Kantian than the one I sug­ gest here (see E, 2.21.5). But Locke's persons also have wills in this stronger sense (see It, 57-58). See Riley's defense of the reading of Locke's conception of will as (a la Kant) the capacity to act on one's conception of law (Will and Political Legiti­ macy, 81) and Rapaczynski's similar arguments (Nature and Politics, 161-62), * This is a point well made by Feinberg in concluding his discussion of "grounds for equality": "The real point of the maxim that all m e n are equal m a y be simply that all men equally have a point of view of their o w n , a unique angle from which they view the world. They are all equally centers of experience, foci of subjectivity. This implies that they are all capable of being viewed by others imaginatively from their own point of view. They 'have shoes' into which w e can always try to put ourselves; this is not true of mere things" (Social Philosophy, 9 3 - 94). See also Wil­ liams, "Idea of Equality," o n "the human point of view" (esp. 236-38). * 1 intend to suggest here that Locke's concept of personhood is sufficiently rich 83

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. merits (as I have already claimed) are b o u n d together throughout the Treatises. If this natural equality of persons establishes a natural equality of rights, however, h o w are w e to explain all of those unequal rights persons can possess in the state of n a t u r e (rights that seem not to be founded on either consent or God's special appoint­ ment)—for instance, t h e property rights of those w h o labor, the parental rights of those w h o procreate, or the charity rights of those in need? It is best, I think, to read Locke as arguing that all persons are moral equals (possessing the s a n v rights ^nd d n r f r s ) w h e n considered Independent of any special relationships o r t r a n s achons into which they may have entered.* T h e moral position that persons assume on attaining maturity approximates this state of equality; but in its pure form it is just the logically "prerelational" state of persons. We acquire greater or lesser rights than others by things w e do and special positions we enter. These activ­ ities m a y result in greater o i lesser merit for some; they may make one person "better than another." But moral equality is not based in merit. It is g r o u n d e d in some more basic notion of h u m a n worth, established not by what we have d o n e or what has h a p ­ p e n e d to u s b u t by w h a t we essentially are. All persons m u s t re­ spect "the dignity a n d excellency of a rational creature" {Education, 31). 8

49

50

and similar to a Kantian (if not Kanfs) position, that it can ground the kinds of arguments suggested in 1.3 and motivate "respect for persons." Waldron's claim that rights in Locke represent "the respect owed by ourselves and others to our nature and status as creatures of God," and that without God Locke would be left with "Hobbism" (Nonsense upon Stilts, 13-14) thus s e e m s to me mistaken, as does his claim that one cannot state Locke's argument for the juridical equality of per­ sons in secular terms (Private Property, 142). See also Gauthier's similar claim that "Locke m i n u s God equals Hobbes" ("Why Ought O n e Obey God?" 427) and Herzog's assertion that there are in Locke no secular justifications for the wrongness of violating rights (Without foundations, 109). Respect is owed other persons in Locke because they are our equals—not simply as equally God's creatures (which, after all, the lower animals are as well), but as equally purposive and rational and so with as much claim as w e ourselves could have to freedom a n d happiness. *• The equal rights Locke defends are thus not rights that necessarily stay equal in all contexts, as Macpherson seems to assume in charging Locke with a contra­ diction o n this point ("Natural Rights," 234). It only approximates a state of equality, of course, because o n attaining matu­ rity persons may have differential rights not grounded on anything they have done—for instance, they may inherit property at maturity or o w e special duties (and hence have diminished rights) to their parents (if the parents still survive and have not, say, abandoned their child). *° For an elegant statement of the difference between merit and worth, and of the importance of this distinction to an argument for equal rights, see Vlastos, "Justice and Equality," especially part 2. See also Becker, "Individual Rights," 204, 209. 4 9

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The distinction 'I a m suggesting is at work in Locke, of course, is just Hart's well-known distinction between\general a n d special J rights. O u r ^ e n e r a t rightel''are rights which "airmen* capable ot choice have I n trie absence of those, special conditions which give rise to special rights," while our/special rights tare those that "arise out of special transactions between individuals or out of some per­ sonal relationship in which they stand to each o t h e r . " It is equal­ ity of general rights, that for Locke follows from natural (nonmoral) equality. Arid just as in Hart our general rights are simply specific instantiations of the overarching natural a n d "equal rights of all men to be free," Locke calls the s u m of our naturally equal (gen­ eral) rights our tnaturaLkeedom We all have (in the logical, prerelational sense) an equal right to freedom from harm a n d interfer­ ence by others, provided only that our actions stay within the bounds of natural law. We are morally free (enjoy a protected lib­ erty) to d o our duty and to p u r s u e our o w n nonobligatory plans and projects. We are born "with a title to perfect freedom" (II, 87). 51

The natural freedom each enjoys can thus be characterized ei­ ther as a set of m a n y specific rights or as one grand, composite right (like H a r t ' s "right to b e free"). The composite right is w h a t Locke calls "the right of freedom to his p e r s o n " (II, 190) and w h a t I will hereafter refer to as the right of self-government. It includes the right to d o our d u t y (our equal mandatory rights), the right to pur­ sue our nonobligatory e n d s (our equal optional rights), a n d the powers to make special rights (e.g., in property or by contract) that are important to our freedom of action. In discussing the transfer of rights required for effective civil government, Locke divides the right of self-government into the right of "innocent delights" a n d the right "to preserve himself a n d others" (II, 128), to emphasize its composition from optional a n d mandatory elements. Each 53

* Hart, "Are There Any Natural Rights?" 188, 183. Waldron, like Hart, correctly observes that special rights can arise from both voluntary and nonvoluntary rela­ tionships, but notes additionally that they can arise as well from "transactions" that do not involve choice at all—as in the right to reparation for damage done in an accident (Private Property, 112-13). See Pangle, Republicanism, 263. For a discussion of the related Thomist concep­ tion of natural freedom, see Skinner, Foundations, 2:155-56. Rimer's attack on claims of natural freedom is in Patriarcha, I, 1. Dunn argues (Political Thought, 223-25) that even innocent delights are permis­ sible only because of their necessary role in rejuvenating us for laboring and doing our duty. And Locke does say such things, for example, in his letters on "recre­ ation" to Grenville. Those same letters, however, strongly emphasize the optionality of rights, and are, indeed, a source for my argument that Locke defended a "robust zone of indifference" (1.4). (How seriously w e should take these letters is unclear, however, if Ashcraft is correct in his conclusion that they were written to someone n

a

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person is "born t o " the "full state of equality" (II, 55) that consists in possession of the right of self-government (natural freedom); each receives this birthright u p o n (if ever) reaching the maturity necessary for personhood. Beyond this background of general and equal rights are all sorts of special rights generated by special relationships in which w e stand or by "acts purely personal" (I, 98) that w e p e r f o r m . Locke explains in the Essays the difference between those precepts of the law of nature "which are absolute and . . . binding on all m e n in the world equally" (those which define general rights) a n d "those decrees of n a t u r e w h i c h are concerned with the various conditions of men a n d the relations between t h e m " (those which define spe­ cial rights) (ELN, 197). A n d Locke mentions some of the special rights (powers) at the start of the Second Treatise (II, 2), including those g r o u n d e d in consent (political power, conjugal rights, and rights of masters over servants), those grounded in forfeiture (despotical rights), a n d those grounded in natural relationships (pa­ rental rights). Other special rights are discussed throughout the Treatises a n d are distinguished from the background of natural freedom (general rights) with which each person "starts": M

55

T h o u g h I have said . . . that all m e n are by nature equal, I cannot be s u p p o s e d to understand all sorts of equality: A g e or virtue may give m e n a just precedency: Excellence of parts a n d merit may place others above the common level: Birth m a y subject s o m e , a n d alliance or benefits others, to p a y a n observance to those to whom nature, gratitude, or other re­ spects may have m a d e it due; a n d yet all this consists with the equality which all m e n are in . . . , being that equal right that every m a n hath to his natural freedom. (II, 54) Here Locke l u m p s together sources of special rights some may have (such as procreation, benefaction, or compact) with good reaLocke k n e w to be "spying" on him, See Revolutionary Politics, 135-36.) Elsewhere, w h e n Locke contrasts "innocent diversions and delights" with "vicious delights," innocent delights are not justified by their necessity for labor, but by their connec­ tion with happiness (only part of which is connected with "doing good"). See ' T h u s , I Think," 164-65. In an extended sense, of course, all rights derive from acts that have been petformed: m o s t of our special rights from our o w n acts, some from the acts of others (e.g., ariminal acts, acts of procreation, gifts, e t c ) , and our general rights from acts of God—the "grants and gifts" from God that Locke refers to in the First Treatise (e.g., I, 6, 63. 116). " While Locke refers to nature as giving parental rights (II, 173), the true ground of these rights is not s o clear (see 4.3). M

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sons for s h o w i n g others appropriate signs of respect (such as their age or virtue ). But both are described against the background of our general right to freedom. The most important of the special rights in Locke will b e the subject of chapters 3 to 6 of this study. Here, however, I/want to a t t e m p t the preliminary task of locating these special rights within the general structure of Locke's theory of rights. 56

2.3. The Structure of Locke's Theory of Rights We can fruitfully organize the rights Locke recognizes into three groups, as follows: I.

General Rights—the right(s) of self-government

H. Nonconsensual Special Rights—(exclusive, original) property rights, charity rights, the natural executive right, despotical rights,;parental rights, filial rights, rights to recipro­ cation •V'

III. Consensual Special Rights—AH consensual, promissory, and fiduciary rights, including political rights, conjugal rights, economic rights, civil rights While all of these rights will be discussed in subsequent chap­ ters, a few preUirunary remarks on this organization are in order. I. General Rightp: As we have seen, this " g r o u p " of rights in­ cludes o u r m a n d a t o r y rights, s o m e optional claim rights, and t h e moral p o w e r s to irtajke special rights (e.g., our right to make con­ tracts a n d our inclusive, common right to m a k e exclusive property rights). n. Nonconsensual Special Rights: This group consists of those spe­ cial rights t h a t derive from relationships not b a s e d in promises or consent. The g r o u n d s of the rights at issue here are, for instance, labor, need, forfeiture, procreation, benefaction—all the bases of nonconsensual moral relationships. Several of m y classifications in this g r o u p require comment. As we will see (in chapter 3), t h e executive right (ft, 7-13) can be viewed either as a general right all 57

* Age, virtue, or goodness give one "a. kind of natural authority" (II, 94). But Locke makes it clear that this is not a right to rule in itself. It is only our "tacit consent" to such "natural authority" that gives it any status it may have in terms of rights. ' As in Harf s fourth d a s s of special rights {"Are There A n y Natural Rights?" 186- 87). Waldron rightly observes that these special rights can be either m personam (as in the rights of children against their parents) or in rem (as in the exclusive property rights established by labor) (Private Property, 1 0 8 - 9 ) . 87

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persons possess at all times as agents of. God, or as the special right persons come to have on specific occasions of criminal (i.e., morally wrong) conduct by others. I choose the latter character­ ization both for its o w n appeal and because despotical rights (the rights of lords over slaves [II, 172]), which cannot reasonably be characterized as general rights, seem to be simply the logical " e n d p o i n t " of executive rights. Parental rights (11, 58, 68,170) may (as w e will see in chapter 5) turn out to be (at least in part) just special rights of reciprocation (rights to a return of benefits, to a display of " g r a t i t u d e " [II, 70]). Indeed, I have argued elsewhere that even political rights in Locke (the rights of governors over subjects ) p e r h a p s may also be best understood as nonconsensual rights of reciprocation. Finally, charity rights (I, 42) should be mentioned as a n o d d case, being the only special rights Locke rec­ ognizes that n e e d n o t arise from a n y o n e ' s voluntary acts. N e e d (the g r o u n d of these rights) may result simply from w h a t happens to people, as opposed to what they or others do. 58

59

60

III. Consensual Special Rights: This last group includes the rights arising from voluntary transactions between persons. Locke ar­ gues that all conjugal rights (II, 78) belong in this class, as do po­ litical rights a n d (what I will call) civil rights (i.e., the rights granted to citizens by civil law—what Locke sometimes calls "the rights of the subject" [II, 136]). By economic rights, I m e a n rights to goods (excluding original appropriations of exclusive property, but including property acquired as payment, or by trade, sale, etc. ), rights to services (as the rights of masters over servants [II, 85], employers over employees), a n d so on. 61

All of the rights considered above are for Locke/morfll rights, for they all derive from the precepts of natural law. They d o not derive their force from a n y legal or institutional recognition (so they are 58

In one sense, of course, all special rights can be characterized as general, for example, as the general right to enjoy specific rights o n particular occasions. S o our despotical rights can be the "general" right of dominion w e possess over those who happen to forfeit to u s all their rights; our parental rights are Our "general" rights of control (etc.) over any children w e happen to have; our right of reciprocation is our "general" right to a return of any benefits w e may happen to confer o n others, and so o n . The division I have suggested is, I think, both truer to Locke's intentions and m o r e uluminating than trying to treat all rights as general in this way. What Locke calls political power (e.g., II, 6, 65, 171), the "rights of govern­ ment" (H, 111), or the "right to obedience from their subjects" (1,105). Moral Principles and Political Obligations, chapter 4. Gifts of property, of course, might be taken to fall in my class II, as might property rights acquired by inheritance (which I discuss in 4.4), since neither seems to require the consent of the recipient. But I take accepting a gift or bequest as both consensual and a necessary condition for the transfer of right in both cases. M

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not merely conventional or positive "moral" rights either). Even the civil rights w e have as subjects in a political society derive from natural law, although the content of the rights (if not the binding force) may be specified by civil law. In Locke's early (1667) An Es­ say Concerning Toleration, h e writes that while it is God's law that "forbids the v i c e , . . . the law of m a n often makes the measure of it"(ECT, 182-83). A n d elsewhere h e says that "the rule and obli­ gation is antecedent to h u m a n laws, though the matter about which the rule is, may be consequent to t h e m . " Because the agreement t h a t creates a commonwealth is morally binding, those rights granted subjects u n d e r civil law have the moral force of con­ tractual rights u n d e r natural law, in spite of the fact that the content of civil rights m a y vary from society to society. Locke, firmly grounded in the natural law tradition, never talks, for instance, of 'legal rights" without referring to the source of their moral back­ ing. There are n o legal 01 political rights in t h e "positivist" sense—institutional rights defined in terms of w h a t the civil law guaran­ tees protection to, independent of any moral evaluation of the laws or legal system. The only "real" rights a r e defined by natural law. 52

Are all rights in Locke, then, natural rights'? This question would be easier to a n s w e r if the concept of "natural right" w e r e clearer. To some, natural rights are those rights that all persons have qua persons, i n d e p e n d e n t of their voluntary actions a n d special rela­ tionships. O t h e r s reserve the t e r m " h u m a n rights" for these rights or m a k e "natural rights" a n d " h u m a n rights" synony­ m o u s . " O n this perfectly intelligible conception of natural right, only our general moral rights are natural rights; w e here contrast what is " n a t u r a l " with w h a t is "created." Of course it also makes perfectly good sense to identify as natural rights larger classes of our moral rights, depending on the meaning o n e gives to t h e 63

65

a

"Obligation of Penal Laws," 114. See also ELN, 189. « Hart, "Are There A n y Natural Rights?" 175; Wasserstrom, "Rights, H u m a n Rights," 49 - 5 0 . ** Claims of synonymy can be found, for example, in Wasserstrom, "Rights, Hu­ man Rights," 47n; and Finnis, Natural Law, 198. Just as common is the claim that human rights are those natural rights possessed by all and only human beings (as in Becker, Property Rights, 16). As w e have seen (and will see further below), how­ ever, natural rights in Locke should not be understood as those rights possessed by all human beings; for there are no rights that all humans necessarily possess. Rights in Locke are possessed by persons (i.e., "men" in the moral, not the biological sense), not by human beings qua humans. w

For alternative definitions of natural right, see, for example, Plamenatz, Con­ tent, Freedom, 84; Christina n, "Can Ownership Be Justified?" 157-58; Lemos, "Con89

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term "natural'' (what o n e contrasts it with), producing a range of possible accounts such as this: (1)

Natural versus "Created": O u r natural rights are those rights w e have that are n o t created by h u m a n action— that is, our general rights (plus charity rights?). .

(2)

Natural versus "Interactional": O u r natural rights are those not requiring interaction with others for their creation (our "atomic" rights—i.e., o u r general rights, property rights [perhaps charity rights a n d executive rights?]).

(3)

Natural versus "Conventional" (or "Artificial"): O u r natural rights are those requiring n o conventions (here distin­ guished from deliberate agreements) for their b i n d i n g force or content—that is, our general rights and some or all of our special rights (depending on which w e take to involve conventional elements, with property and prom­ issory rights as the best candidates for exclusion [a la Hume]).

(4)

Natural versus "Transactional": O u r natural rights are those not requiring for their creation any deliberate trans­ action b e t w e e n persons—•that is, our general a n d n o n ­ consensual special rights.

(5)

Natural versus "Civil": Our natural rights are all those w e could (logically) have prior to the creation of civil soci­ ety—that is, all b u t our political a n d civil rights.

(6)

Natural versus "Institutional" (or "Nonmoral"): O u r natural rights are all those whose binding force is moral—that is, all of Locke's rights.

Which of these classes of rights w e identify as natural rights seems very much a matter of the contrast w e h a p p e n to wish to emphasize. And, of course, we can define natural rights in terms of several of these classes together. For instance, the account I will use in this work utilizes elements of classes 3, 5, a n d 6.1 will count as a natural right any right that could be possessed independent of (logically prior to) civil society, w h o s e binding force is nonconventionai.* Rights are natural that have natural g r o u n d s and 5

cept of Natural Right"; Benn and Peters, Soda/ Principles, 95-100; Sumner, "Rights Denaturalized," 22. Accounts o f "natural right" that approximate the o n e I articulate here include Raphael, Problems of Political Philosophy, 1 0 3 - 6 ; Gibbard, "Natural Property Rights," 237; Lemos, "Locke's Theory of Property," 226-27. w

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could be possessed in the state of nature. A natural right could have conventional elements (i.e., detennining its specific content, since conventions can arise in the state of nature), b u t could not have conventional grounds. Since Locke recognizes no conven­ tional moral g r o u n d s of rights, I will count as natural rights in Locke those rights w h o s e binding force derives from natural law and that are (logically, not historically) prepolitical (i.e., the inter­ section of classes S a n d 6). .Locke's Own usfi of the term "natural right" is infrequent, a n d his intentions w h e n h e does use it are not altogether clear. The (few) uses in the Second Treatise (e.g., JJ, 1, 76, 82, 115) give us n o guidance in formulating a view of Locke's intended m e a n i n g . In L S&^however^he usefully contrasts natural rights with "positive" r^KtsTapparently meaning by "positive" rights those derived from consent; This strongly suggests our class 4 as Lockean natu­ ral rights. However, three paragraphs later (I, 91) the contrast is between natural a n d "municipal" rights, suggesting our class 5 or 6. Of course, since the rights in class 4 are a proper subset of those in class 6, there is h o real inconsistency. We could simply ascribe to Locke class 4 sympathies. Locke does, however, later seem to equate "positive" with "municipal/' "civil," a n d "institutional" (e.g., I, 123,126; 140; II, 12). So it seems plausible to maintain in the end that it is only some consensual rights (i.e., those granted by civil governments w h o s e authority derives from consent) that Locke really wishes to regard as non-natural. A best guess from die textual'evidence, then, seems to point to the intersection of our 67

68

1

dasses 5 and, 6 as t h e class of Lockean natural rights. But another .'

i

* Locke abb occasipriaDy uses terms like "right of nature" (e.g., B , 65, 85) or "native right" (e.g., % 176, 194, 220). Locke's use of "natural right" is actually more frequent; in the First Treatise (e.g., 1, 6, 11,17, 50, 69, 88 - 89, 91, 98, 111, 126, 142, 147)., bur, as. I argue below, Locke's uses of the term are seldom helpful in detenriining what meaning h e gave it. * It has been common since Locke, of course, to in this w a y characterize the class of natural rights as excluding contractual or consensual rights, since rights that are created by our voluntary transactions seem not to be appropriately "natural." See, for example, Ross, Right and the Good, 55-56; and Becker, Property Rights, 16. In­ deed, Steiner takes it to be trivially true that natural rights are noncontractual rNatural Right," 41).'Similarly, it is common to read Locke as excluding consen­ sual rights from the class of natural rights (see, e.g., Ashcraft, Locke's Two Treatises, 138-39; and Lemos, Hobbes and Locke, 7 5 - 7 6 , 1 6 4 ) . But there is n o very good reason fat thinking that the "natural" in someone's use of "natural right" m u s t b e under­ stood as meaning "not arising from human actions" rather than "logically prepoKtkal" (i.e„ possessable in our natural condition). And I argue below that there is m fact good reason to believe that if Locke had anything clearly in mind at all, h e probably had in mind t h e latter meaning of "natural," not the former, w h e n h e used the term "natural right." 91

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reason for accepting some consensual rights as natural in Locke (contrary to his apparent suggestion in I, 88), is that it is h a r d to believe h e wishes to count as natural (e.g.) the right to inherit, but not promissory or consensual rights in the state of nature—espe­ cially w h e n h e says that "keeping of faith belongs to m e n as men, and n o t as m e m b e r s of society" (II, 14), a n d m a t promises and oaths are such basic grounds of obligation as to even "hold the Almighty" (II, 195). In a n y event, however prominently w e em­ ploy the concept of natural right in explicating Locke's moral and political philosophy (and however accurate it m a y b e to describe Locke as a natural rights theorist), Locke himself never really seemed particularly concerned with presenting or using a n y very precise notion of "natural right" in his work. "ATwe saw earlier, Locke also offers n o definition of " r i g h t " gen­ erally, n o r does h e ever say clearly what a right is. We k n o w that rights are "freedoms" of a sort, a n d that the central rights in Locke are the logical correlates of others' duties (and so are protected free­ doms). We alsojcnow that Locke characterizes all rights (and not just rights in external goods) as property, thaf is, w h a t is properly our o w n "(e.g., II, 123, 173). Tlua-suggests the idea of a j j g h L a s a k i n j P S f r n g ^ control oT^pyeTelgnTvSjjj^^ a r e a j f our tiVgj^delirtmg a moral space within w h i c h w e are free to operate. O n p a l a n c V , lliiTaccount bl rights which probaDiy best nts~the w a y s in which Locke talks about rights will utilize at its roots no­ tions of "claim" a n d "entitlement" : "all rights seem to merge en­ titlements to d o , have, omit, or be something with claims against others to act or refrain from acting in certain ways. . . . W e can say that all claim-rights necessarily involve both, though in individual cases the one element or the other may be in sharper focus." By thus suggesting the importance of the idea of a right as a "free­ d o m " or "claim" in Locke's theory, 1 d o not intend to argue (as 69

70

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In Education, 111, Locke virtually equates rights with "claims" and "tides." See Tully's analysis of Lockean rights (and of rights in Suarez before Locke) as claims (Discourse, 67); and Becker's definition of right (Property Rights, 8). Feinberg, "Nature and Value of Rights," 91. Feinberg actually prefers the ac­ count of rights as "valid claims" (in which many, such as Wasserstrom, agree with him). He offers the idea of rights as conjunctions of claims and entitlements in response to McCIoskey's insistence that rights are essentially entitlements, not claims at all (in "Rights"). Others w h o share this view of rights as entitlements include Nozdck, Shapiro (Evolution of Rights, 14), and Finch ("Alternative"). Among those w h o follow Feinberg in the "conjunction" thesis are Young ("Dispensing with Moral Rights," 64) and Bandman ("Do Children Have Natural Rights?" 23637). 70

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71

many have d o n e ) that Locke subscribes to (or is a precursor of) what is commonly referred to as the "choice theory" of rights (or the "will theory").; Choice theories claim that the point of rights is to protect the control or autonomy of the individual within an area of life; righthpJders are those w h o m a y choose h o w they and othersare to act. By contrasttjhe "benefit meory '"oTnfihts (or "inter^" est theory") claims ,that the purpose of rights is to confer on indi­ viduals certain benefits (or to promote their interests); rightholders are the beneficiaries (or direct, intended beneficiaries; or justifiable beneficiaries) of others' d u t i e s . /

72

It is natural for benefit theories to accompany views o n which moral duties are seen as basic or fundamental, with rights as de­ rivative notions (concerning the beneficiaries of t h e duties); a n d o n the opposed view, in which rights have priority, it is equally nat­ ural to embrace a choice theory of rights. I h a v e tried to argue, of course, that Locke 'occupies neither extreme in this controversy, so we would expect him to unqualifiedly endorse neither a benefit nor a choice theory of rights. In fact (for reasons I will elaborate o n in the next section)^ I think Locke is best thought of as holding that both choice a n d benefit are central to the idea of right. Thinking of rights as claims, I concede, does mcline one toward a choice theory (since the claim is. seen as s o m e h o w basic, "pulling" duties to the source of the claim). But (as we will see) the natural law roots of Locke's theory of rights makes it complex in ways that cannot be captured simply by taking rights as claims. I would like to conclude this section by briefly commenting on some further properties of rights in Locke that are important to his arguments. Of the most important remaining properties of rights, two kinds come immediately to mind—the properties of rights with regard to loss a n d transfer of those rights, a n d the " w e i g h t " of rights in comparison with other kinds of considerations that bear on action. The status of Lockean rights in connection with loss and transfer I will deal with in chapter 3. As to the relative weight of rights, it is easy e n o u g h t o assume that for Locke rights n

Sec, for instance, Finnis, Natural Law, 208; and Shapiro, Evolution of Rights, 105. The choice theory is most familiar in contemporary literature o n rights from papers by Hart (e.g., "Are There A n y Natural Rights?" and "Bentham on Legal Rights"). See also the papers by Feinberg cited in this chapter and Wellman, "Up­ holding Legal Rights." The benefit theory is classically associated with Bentham, and is defended more recently in various forms in Lyons, "Rights, Claimants"; Raz, The Morality of Freedom; MacCormick, "Rights in Legislation"; and in several works by Waldron. For general discussions of the two theories, see Nickel, Making Sense of Human Rights, 19-23; and Waldron, Private Property, 79-99. 7 2

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are absolute in weight —that is, that there are n o conditions u n d e r which they can be justifiably uifringed or overridden by competing considerations. Rights would then be " t r u m p s " or "side-con­ straints" in the strongest possible sense, final moral claims o n ac­ tion. It is probably fair to say that Locke treats rights as virtually absolute, b u t h e c a n n o t plausibly be read as making t h e m entirely absolute. For w e h a v e already seen o n e passage (II, 183) in which Locke discusses a conflict of rights, arguing that one of the rights is justifiably overridden b y t h e other (which entails, of course, that the overridden right is not absolute). A n d there are good reasons to s u p p o s e that the value of preserving peace in society m a y some­ times override individual rights to reparation for w r o n g s d o n e (II, 176, 230). Rights can still be trumps with respect to ordinary mat­ ters of utility gain or loss; but extraordinary social costs or con­ flicts with competing rights may sometimes justify infringement. Not only is this Locke's view; it is the most persuasive view to take of the moral weight of rights. 74

75

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For instance, Brandt writes that "the only rights [Locke] recognized at all were absolute rights, o n e s that could not be overridden (he thought) in any circum­ stances" (Ethical Theory, 442); this seems to be Taylor's view of Locke as well ("At­ omism," 40). Locke does occasionally speak of some rights as "absolute" (although it is not entirely dear w h a t "absolute" means in context)—as w h e n h e claims that "speculative opinions and divine worship . . . have an absolute and universal right (o toleration" (ECT, 175-76). Many have noticed either that Lockean rights can conflict or that Lockean rights are not absolute. See, for example, Vlastos, "Justice and Equality," 37-38; den Hartogh, "Tully's Locke," 660; Dunn, j u s t i c e , " 82; Ryan, "Locke and the Dic­ tatorship," 2 4 4 - 4 6 ; Richards, "Inalienable Rights," 4 0 3 - 4 ; Lemos, "Locke's Theory of Property," 227; Glenn, "Inalienable Rights," 9 8 - 9 9 . Machan thinks that natural rights theory must reject the possibility of conflicts of rights (Individuals and Their Rights, 6 3 - 6 4 ) , apparently because h e believes that the choice between conflicting rights will be left "entirely arbitrary" (ibid., 197). But, of course, if different natural rights can have different weights or importance (as w e have seen they d o , for in­ stance, in Locke), resolution of conflicts need not be arbitrary. Steiner is the fore­ most defender of the still stronger (and, I think, even less defensible) view that conflicts of rights are not possible ("Natural Right," 42; "Structure of a Set," 7 6 8 69; "Slavery," 247). Considerations of the common good "limit and alter the obligation even of s o m e of the l a w s of G o d " (ECT, 183). S e e Dunn's passing remarks along these lines [Political Thought, 179n; "Consent," 32n). This is really all Dworkin intends in calling rights "trumps," as seems clear in Taking Rights Seriously, xi, 191-92, and in "Rights as Trumps." On the significance of this "trumping power" of rights, see Buchanan, " W h a f s S o Special about Rights?" 6 3 - 64. Even Nozick, strongly committed to the absoluteness of rights in Anarchy, State, and Utopia, s e e m s to have softened his stance (Philosophical Explanations, 479); and Fried, w h o asserts that "every violation of a right is wrong," nonetheless al­ lows that "extreme cases" may change matters (Right and Wrong, 108, 9-13). See Plamenatz, Consent, Freedom, 85, for a rejection of the absoluteness of certain rights. 7 4

7 5

7 6

7 7

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2.4. The Significance of Natural Rights We have seen t h e central role that rights play in Locke's moral theory. I will try n o w to articulate a simple model for understand­ ing the shifting conceptual framework that perrnitted the idea of a natural right to e m e r g e in the reasonably strong iorm we find in Locke. I can here a d d little to the recent careful studies of Locke's natural right predecessors and the changing meanings of ius and dominium i n their h a n d s , M y aim will be only to describe in quite general terms the moral viewpoint (the view of moral relation76

For defenses of the absoluteness of certain rights, see, for example, Feinberg, Social Philosophy, 86-88; Finnis, Natural Law, 225; Lemos, "Concept of a Natural Right," 142; Ckwirth, "Are There A n y Absolute Rights?"; Machan, Individuals and Their Rights, 202. A g o o d general discussion of conflicts of rights and strategies for deal­ ing with them can be found in Waldron, "Rights in Conflict." The analysis of Lockean rights just completed allows us to be a bit more precise ts weB about Lockean moral requirements with respect to their grounds and the rights with which they correlate. It is common in recent moral and political philos­ ophy for a distinction to be drawn between obligations and dunes. Obligations are those moral requirements that are generated by some voluntary performance or forbearance by the o n e obligated (such as making a promise or entering into a co­ operative undertaking with others). Duties, by contrast, are those moral require­ ments that bind all persons, regardless of their special performances or transactions (see Brandt, "Concepts of Obligation and Duty"; Rawls, Theory of Justice, §§ 18-19; Simmons, Moral Principles and Political Obligations, 11-15). From the classification of Lockean rights w e have presented, however, it is obvious that Locke must acknowledge a tiurd' l a n d of moral requirement, not neatly describable as either an obligation or a duty (as these are commonly defined). The general rights (our class I) art clearly those rights that correlate with duties; our equal rights depend on no special performances, s o neither d o the moral requirements they entail. Similarly, consensual special rights (our class DT) clearly correlate with obligations, being gen­ erated by the same kinds of special transactions. But our second class of rights, the nonconsensual special rights, seems harder to place in terms of correlative moral requirements. The "duties" that correlate with these rights seem to be based in special, but not necessarily voluntary, relations. For instance, the child's duties that correlate with parental rights are not grounded in any voluntary performance by the child (and s o are not "obligations"); but neither are they duties possessed by all persons qua persons^ and s o are not "duties" in this sense (since the death of or abandonment of the child by parents dissolves some of the child's duties and maturity appparently dissolves others). The same is true of the duties correlating with rights of reciprocation (and a similar plausible case can be made for all of the other rights in this class with their correlative duties). We must remember, then, that in discussing moral requirements in Locke (and indeed, in discussing moral requirements generally), w e must add a third kind of moral requirement ("special, nonvoluntary" requirements) to the more familiar categories of duties ("general, nonvoluntary" requirements) and obligations ("special, voluntary" requirments) (see m y "Obligations of Citizens," 7 4 - 8 2 ) . Duties and obligations, as these are commonly defined, d o not exhaust the realm of moral requirementsSee especially, Tuck, Natural Rights Theories; and Tully, Discourse. 78

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ships) into which fit the Lockean conceptions of the duties and rights of persons. It h a s until recently b e e n almost obligatory to begin discussions of natural rights theory with the observation that the concept of a natural right is primarily a m o d e m concept. O n e can point to the concept's conspicuous absence in Greek a n d Roman t h o u g h t and to the m a n y a n d prominent later theories of natural law t h a t seem to operate with no corresponding notion of natural right—for in­ stance, the theory of A q u i n a s . We n o w know, of course, that nat­ ural rights theories (at least in rudimentary form) were developed rather earlier than this conventional wisdom suggested. Richard Tuck argues, for instance, that as early as the twelfth century, and certainly by the fourteenth, "it w a s possible to argue that to have a right was to be t h e lord or ' d o m i n u s ' of one's relevant moral world, to possess 'dominium', that is to say, p r o p e r t y . " In Jean Gerson's work. Tuck s h o w s , ius was already conceived of as an ability {facultas) or power, and liberty as a kind of dominium* Such early rights theories w e r e largely ignored during the Renaissance, but were revived in the 1580s, finally developing t h r o u g h the work of Molina, Suarez, a n d Grotius into the form of natural rights theory that most directly influenced Locke. 75

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A great deal, then, w e n t on both before Aquinas a n d between Aquinas a n d Locke. But the natural law theories of Aquinas and Locke stand out as high water marks in the sniffing tides of theory, making it interesting to ask this question: What in their respective views of our moral position allows rights to play so m u c h more central a role in Locke than in Aquinas? Any adequate answer, of course, m u s t emphasize the role of God in moral relations, God being at the center of the moral landscape for both philosophers. I want to begin (following Feinberg ) by presenting two pictures of our moral condition in the bluntest possible terms. I suggest nei­ ther that these were the respective views of Aquinas a n d Locke nor that either picture w a s ever embraced by anyone in so unso83

" Aquinas does arrive at a conception of human equality (for instance, in his discussions of slavery) that cries out for the development of a theory of natural rights. But nothing in his texts suggests that h e had in mind anything like the m o d e m concept of natural right. See Tuck, Natural Rights Theories, 18-20. Tuck, Natural Rights Theories, 3. Finnis locates the "watershed" in w h i c h ius comes to have its m o d e m meaning "somewhere between" Aquinas and Suarez (Natural Law, 206 - 7). Tuck, Natural Rights Theories, 26-27. « I b i d . , 50. "Nature and Value of Rights," 8 2 - 8 3 . 80

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phisticated a form. Indeed, the differences between the pictures are largely a matter of emphasis. But this contrast in emphasis is helpful, I think, in understanding the moral fence Locke straddles. (a) The First Picture: God occupies the center of this picture in the fullest possible sense. His creation of the universe a n d His plan for hurnartkind allow Him to give binding law to u s . O u r moral duties are owed to God, as creator, moral lawgiver, and sovereign, Importantly, G o d s t a n d s at the center of all moral relations, as a kind of intermediary. Each j)f u s has duties not to h a r m others but these duties are o w e d t o GodV'ihe benefits others receive a s a con­ sequence of "our 'performance of our duties are in part the point of these duties. But other persons exert n o direct "ethical pull" on us. Others are to be respected not so much for themselves, but for their status as G o d ' s property a n d parts of His plan. O u r moral status is t h u s largely that of a tool, a cog, a part of some larger enterprise, a n d t h e appropriate virtues for such a being are obe­ dience, humility, a n d industry. Another's property, of course, merits a kind of respect that is rather thin. W h e n I break your shovel (even if it is quite a wonderful shovel), I w r o n g you, not the shovel. Similarly, breaches of our moral duties to treat others well are in t h e first instance wrongs d o n e to God, a n d only deriv­ atively w r o n g s d o n e to others. This sort of "moral occasionalism" r«rrnits m e t o a r g u e that "to God only have I s i n n e d " even w h e n I have harmed other p e r s o n s . f

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Where do rights enter this picture? God has rights of a sort, of course, over His property, although it is in a way demeaning to God to conceive of these as rights, exactly—as if they w e r e mere claims nela against others. The m o r e appropriate emphasis is on our duties of obedience and worship. A n d w e can perhaps also have rights, as third party beneficiaries of duties owed to God (ac­ cording to certain theories of rights ). These rights would, of course, belong to the class of "protected liberties," for the moral freedom to act would be protected by others' duties owed to God. But there is in this picture no room for claim rights of the sort w e have discussed, involving pressable (and waivable) claims against those b o u n d b y t h e corresponding duties. Against w h o m could 83

** Ibid. For the related conception of a sovereign monopoly on rights, see the Vindidae Contra TyranrtoSBecause other persons are the direct, intended beneficiaries of our duties o w e d to God, others w o u l d appear to count as rightholders in this picture, provided w e subscribe to a v i e w (following Bentham) like Lyons' "Qualified Beneficiary Theory" of rights ("Rights, Claimants," 63-64). See Harfs reply in Essays on Bentham, es­ pecially 167-88. B

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such claims be pressed? Presumably it would be both unwise and conceptually odd to press claims against the God to w h o m others' duties are d u e . For several reasons, then, in this first picture right-talk is naturally suppressed. (b) The Second Picture: G o d is still central in this picture, although H e is not at the center of all moral relations in the same way.* While God is still creator, planner, a n d lawgiver, the e n d s pro­ moted by God's law are now seen as "detachable," so that the law is n o w m o r e for u s a n d less over u s . The law's facilitation of hu­ m a n s ' o w n ends is in this picture as prominent as its facilitation of God's e n d s . O u r fellow persons are not n o w seen just as God's creatures b u t as o u r equals in other ways; their rationality, purposiveness, and manifest similarities to ourselves require that they be taken seriously in themselves. Moral relations hold directly be­ tween persons as well as between persons a n d God, as others ex­ ert a " p u l l " on u s . Breaking God's law can involve wronging oth­ ers directly, so that w e have duties that are owed to others, n o t just duties with respect to others (the other is n o t just the "occasion" of the w r o n g , b u t t h e o n e actually wronged). T h e deeper equality this signals both requires a different order of respect a n d makes different virtues appropriate for u s . Self-assertion can n o w be based on a conception of one's independent worth, on the dignity of being " o n e ' s o w n person " (which brings with it, of course, new stances with regard to consent, obligation, obedience, a n d resis­ tance). 86

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I n this second picture, rights naturally m o v e into sharper focus, along with making a n d pressing claims concerning one's due. " D u t y , " of course, had to do precisely with w h a t w a s " d u e " an­ other, typically by virtue of superior s t a t u s . The claim of status " p u l l s " duties to it. In the first picture, God's is the relevant moral 89

** A s Locke writes, "if God afford [men] a temporary mortal life, it is his gift; they o w e it to his bounty; they could not claim it as their right, nor does h e injure them w h e n h e takes it from them" (R, 5 (6]). I return later (2.5) to the more general question of whether or not the activity of "claiming" or "demanding" could intel­ ligibly go o n in the absence of rights. In this context (where God would be the party against w h o m claims would have to be pressed), it s e e m s clear that these activities lose their force. 87

"In the great (natural law) treatises of the seventeenth and eighteenth centu­ ries . . . God is increasingly withdrawn from immediate contact with m e n " (D'Ehtreves. Natural taw, 55). We must now think of the law "as rules placed at the disposal of individuals and regulating the extent to w h i c h they may demand certain behavior from others" (Hart, "Are There A n y Natural Rights?" 182). See Feinberg's discussion of "duties of status" in "Duties, Rights, and Claims," 140-41. 9 8

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status to w h i c h o u r duties are pulled, b u t the "rights" of o n e w h o is omnipotent n e e d n o special emphasis- In the second picture, every p e r s o n .enjoys a status that is also the ground of a " d u e " ; but emphasis o n 6ur rights is not at all pointless. Duty's primacy in the first picture stems from the gross inequality of the parties concerned (God a n d humartkind). Once the relevant parties are conceived of a s equals, rights take a more prominent place. The two 'pictures just described, while n o better t h a n caricatures of any philosopher's actual views, d o capture, I think, a shift in thinldng about rrtoral relations that w a s still taking place w h e n Locke wrote. This' shift corresponded, of course, to more obvious changes in economic a n d social organization a n d to changes in more inclusive theological a n d political theories (on which I shall not comment here). My intention in presenting these pictures is only to try t o better locate the character of Locke's theory of rights. By contrast w i t h t h e conceptual scheme for Aquinas' natural law theory, which mclines toward the first picture, Locke's moral-con­ ceptual framework seems to be a n attempt to embrace both pic­ tures at oncfe. It is h a r d l y surprising that Locke, w h o lived "in a 'transitional' society," should employ a conceptual scheme which is also transitional. Locke w o r k s with both pictures, or, better, with a kind 6f synthesis of t h e two, emphasizing the chief charac­ teristics n o w of o n e a n d n o w of the other (as his rhetorical, politi­ cal, and theoretical concerns dictate), trying always to leave room for both. Locke stands near a crossroads. O n the one h a n d , h e emphasizes G o d ' s rights—His right of creation. His right t o our obedience to His law (E, 2.28.8). But Lockealso stresses our rights, for reason a n d its law is w h a t " G o d hath given to be t h e r u l e betunxt man and man" (II, 172; m y emphasis; see also II, 181). Strong elements of both ..pictures are t h u s prominently displayed~rn" Locke's w o r k . ! 90

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Is it theoretically coherent for Locke to work within both pic­ tures at once? It is easy to see w h y o n e might think not, a n d w h y this judgment might lead one to dismiss those aspects of Locke's work that emphasize one or the other picture. If w e focus o n the centrality of .rights in Locke, the person-to-person character of moral relations, a n d the secular arguments h e offers, w e can plainly see w h e r e Hobbesian a n d libertarian readings of Locke find 1 0

Dunn, Political Thought, 212. See also Macpherson, Possessive Individualism, 220, 248,269 - 70; and Wood, Politics, 15. * Dunn notes this "dual structure" of moral relations in Locke, although only in passing (Political Thought, 108n). 99

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their support, a n d whence come their claims for the priority of right. A n d it is just as easy to focus o n those aspects of Locke more amenable to the first picture—the centrality of God, His rights over u s , a n d the theological foundational arguments—and offer as a consequence a reading of Locke that bends too far in its avoid­ ance of his m o r e individualistic m o m e n t s . Much of the recent his­ tory of Locke scholarship revolves around turning a blind eye to one or the other aspect of Locke's thought. But w e save Locke from no very terrible fate w h e n w e insist that h e work entirely within one picture or the other. For there is no obvious incoherence involved in combining the two views. It is perfectly intelligible for our moral duties to be o w e d both to God a n d to other people, a n d for both God a n d people to be holders of correlative moral rights. We_owe God obedience to His law be­ cause H e is o u r creator a n d r ^ H t l y superior Lawmaker. We owe d u n e s to otfrerg"~b€cause ol our natural equality as ratipnaj, purp o ^ f ^ e i n g s . There is only a kind of "moral overdetermination" in this view, but n o conceptual incoherence. The g r o u n d s of the rights and duties are different in the two cases, with only their content being the same. To see that this a m o u n t s to no incoher­ ence in other kinds of cases, consider; if I promise the concerned best friend of m y invalid mother that I will care for m y mother, I may have an obligation to do so that is owed to both m y mother (because of m y moral debt t o m y parents) a n d her friend (because of my promise). Both hold rights against m e . (Note that m y moth­ er's right is not merely the right of a third party beneficiary, but a claim right based on [say] benefits she gave to m e in the past.) The content of t h e obligations owed to each will be the same, b u t the grounds will be different. Either source of obligation would, as in Locke's moral theory, b e sufficient for the moral relation. Such overdetermination is a common feature of Locke's moral a n d po­ litical philosophy. But Locke seems sensitive to the need to pull his disparate lines of thought together. His emphasis on God's ownership of a n d in­ terest in h u m a n k i n d as a whole points to the importance of the common good a n d to the collectivist, communitarian aspects of Locke's t h o u g h t (the irresistible teleological pull of natural law the­ ory). His emphasis o n the natural equality, freedom, a n d purposiveness of persons points to the sanctity of each person's life and plans a n d to the individualist, libertarian aspects of his thought. But h i s Kantian a n d rule-consequentialist arguments constitute a way of pulling the two lines together in what really a m o u n t s to a 100

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pluralist moral theory. The teleological a n d deontological aspects of Locke's t h o u g h t sit coherently together. Locke recognizes"~both collective a n d individual goods, acknowledging that rigTulTfand individual goojtsjMneraliy) are not all there is to morality. t h e 'oveTdeterrrunation'' a n d pluralism in Locke's moral-con­ ceptual scheme can be seen nowhere more clearly than in his the­ ory of property (to which I will only gesture here, reserving more careful consideration for chapter 5). It is easy to find support in Locke for a hegatiye libertarian, accumulative conception of p r o p ­ erty in,external:goods; or we can stress instead, against such views, the social character of property in Locke, God's command that we labor, a n d so on. But to s u p p o s e that o n e or the other of these views m u s t miss completely Locke's point is to ignore the ways in w h i c h Locke b l e n d s these views together. God commands us to labor; industry is our duty a n d ''calling.'' We have as well our o w n private plans a n d our o w n (albeit limited) sovereignty. But w h e n w e p u r s u e our own plans, our industry in fact does God's will as well. The " t w o lines" m u s t be seen to m o v e forward together as o n e line in Locke, however tempting it may be to gen­ eralize o n e aspect of Locke's position a n d pass it off as his real view about rights (property). Similarly, Locke's view of the property w e possess in ourselves illustrates the balancing, pluralistic approach Locke employs. O n the one h a n d , as w e have seen, each person is God's creation, His property, with w h o m God can do as H e pleases. On the other, of course, Locke wishes to stress that "every m a n has a property in his o w n p e r s o n . This nobody has a n y right to b u t himself" (II, 27). It is at least partly on the basis of this property in ourselves that exclusive rights in'extemal goods are said to b e possible. The first position, viewed in isolation, seems to leave inadequate room for our own plans a n d ends. But the second, by (apparently^giying us absolute sovereignty in the personal realm, might seem to leave too much room for, example, voluntary suicide, self-enslavement, oTsubmission to. arbitrary government. If I can d o as I wish with myself, o n e thing I can do is give myself away.* Locke is clearly attracted by. elements of b o t h positions b u t t h e whole of neither, and he works, as it were, from both e n d s to the middle—our per­ sonal sovereignty is important but limited; and; for that reason, the power over another that we can rightfully exercise is also lim2

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As Tuck s h o w s , it w a s o n this kind of reasoning that most early natural rights theories based their defenses of slavery and absolutism (Natural Rights Theories, 4 9 -

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ited. If w e think of our property in ourselves as a kind of trust from God (as I argue in chapter 5 that Locke did), it is easy to see the n a t u r e of this limit. For trusts typically allow discretion within terms, providing both freedom and d u t y (although in this case, the trustee a n d the beneficiary with w h o s e interests the trustee is concerned are precisely the same p e r s o n ) . T h e point is this: Locke's arguments proceed from m a n y differ­ ent starting points (both secular a n d theological), a n d his main b u r d e n is often that of rendering disparate lines of t h o u g h t com­ patible, by compromise or by (coherent) overdetermination. From the resulting Lockean morass, it is tempting to pull single threads a n d pass t h e m off as Locke's argument, particularly w h e n Locke's philosophical or political purposes require him to give special em­ phasis to o n e line or another. But to do so is to ignore the com­ plexity of Locke's work. Locke is not Hobbes in disguise, or an "entitlement theorist"; neither is h e the champion of majority rule, a simple throwback to traditional natural law theory, or an a r d e n t defender of the commons. Rights in Locke are neither the mere s h a d o w s of duties u n d e r the law, nor property over which we have absolute control. If w e must identify Locke's "true stance," I h a v e tried to argue, it is almost certainly o n some middle ground b e t w e e n these extremes.** The remainder of this work will, I h o p e , lend further s u p p o r t to this thesis. 93

2.5. Natural Right Skepticism In subsequent chapters I will proceed as if assertions of natural right at least make sense, assessing the plausibility of claims for particular rights from inside the natural rights camp. Since I offer only hints a n d sketches of w h a t the foundations of a defensible *> The nature of this "compromise" can also be seen in the objects of our duties for Locke. A secular, libertarian emphasis o n absolute personal sovereignty leads naturally not only to a rejection of paternalism, but also to a rejection of self-re­ garding duties (i.e., duties to do what is best for oneself—e.g., self-preservation, moderation, self-improvement or perfection, and so on). For it is hard to see to w h o m such duties could be o w e d . The Kantian answer, of course, is that such duties are o w e d to oneself, or rather, to the rational nature in oneself, w h i c h de­ mands the same respect as the rational nature in others. This position permits a secular ground for self-regarding duties. Locke, in accepting self-regarding duties (1.5), often seems sympathetic to these Kantian points; but at least a s often he s e e m s to have in mind that self-regarding duties are o w e d directly to God (as are our purely religious duties). O n this question again Locke is working within both pictures at once. * See Rapaczynski. Nature and Politics, 202. 102

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natural rights 'theory w o u l d look like, the reader is owed at least an effort to s h o w that natural right talk is not utterly confused or incoherent. For that reason, I will in this section provide brief re­ sponses (or at least indications of appropriate strategies of re­ sponse) to t h e m o s t familiar and potent forms of natural right skepticism (although I make n o effort here to deal with forms of general moral skepticism, such as relativism or strong noncognitivism). Those w h o find this approach inadequate can, of course, read the rest of* this work primarily as a commentary on Locke. But there are,.I think, reasons to reconsider the longstanding (and recently m u c h amplified) prejudices within philosophy against theories that refer to a "natural l a w " or to "natural rights." Natural law theory h a s been rejected b y many, of course, be­ cause they reject t h e theological commitments that seem necessary to make natural law a "real law"; unless natural law is laid down by God, the a r g u m e n t goes, it cannot be a real law at all, and so cannot define real duties or rights. But this view is doubly mis­ taken. For, in! t h e first place, it a s s u m e s that the concept of "law" possesses a. simplicity a n d clarity that it in fact lacks. Not only au­ thoritative c o m m a n d s , b u t a wide range of patterns, practices, rules, and principles, are properly called laws, whether imposed by others, b y self, b y reason, or by nature. It is t h u s not necessarily confused to call valid principles about duties and rights "laws," even if these principles are not taken to be the commands of God (or the law of the land). And, in the second place, many theorists we identify a s natural law theorists have in fact not made the theo­ logical commitments in question. Indeed, t h e " c o m m o n core" of natural law doctrine seems to amount to little m o r e t h a n this: that there are universally binding ("objectively valid"]) moral rules, knowable by u s e of our natural faculties, w h i c h m a y b e appealed to to evaluate a n d criticize " h u ­ man institutions, rules, and actions."' Natural law theory, in this sense, implies s o m e form of value objectivism~-a position that is controversial e n o u g h , of course, but one that is still well within the mainstream of active theoretical debate. Secular natural law theory, t h e n , is a perfectly intelligible enterprise, and one that can be p u r s u e d n o t only by Aristotelians, but by Kantians, by some kinds of utilitarians, a n d by other value objectivists. And if the rules o r principles of such a natural law theory specify duties 5

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» Frankena, "On r e f i n i n g , " 209; Oppenheim, "Metaphysics," 241. * Contrary to the claims of many (e.g., Ryan, "Utaity and Ownership," 180). 103

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owed to others (such that these others are w r o n g e d by noncom­ pliance), those rules define natural rights as well as natural duties (natural rights being simply the logical correlates of such duties). Locke's natural law theory, as w e h a v e seen, is based in a com­ mitment to God's role as lawgiver a n d creator. But a defense of natural rights theory (and even of a Lockean theory) can proceed (as m a n y of Locke's o w n arguments for natural rights do proceed) i n d e p e n d e n t of such commitments. With this in mind, I proceed n o w to discuss in more detail some familiar sources of natural right skepticism. 97

(a) The "naturalness" of rights: According to some skeptics, calling a right "natural" requires committing oneself to metaphysical or epistemological positions that are hopelessly backward or con­ fused. Charles Taylor, for instance, associates natural rights with the idea of "an extensionless subject, epistemologically a tabula rasa." * It is hard to assess the complaint at this level of generality, particularly given h o w "ambiguous a n d equivocal" the w o r d "nat­ ural" is in s u c h contexts (as H u m e r e m i n d e d u s ) . We have seen (in 2.3) some of t h e m a n y attributes to which " n a t u r a l " may be contrasted in calling rights "natural." The only salient meaning " n a t u r a l " seems to have for Locke in connection with rights (as we _also saw in 2-3) is " n o n c o n v e n n o n a i " or 'logically nonpolitical." If ~ this is w h a t a natural right is, the defender of natural rights is not obviously committed to any more than the existence of objective (not essentially conventional) moral rules defining rights (al­ t h o u g h the content of these rights might be conventionally deter­ mined). The standard (but not only) epistemological a n d meta­ physical positions accompanying these views are admittedly realist in character (although w h a t counts as moral realism is almost as controversial as w h e t h e r moral realism is defensible). But since 98

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For a critique of other and related sources of natural right skepticism, see Ra­ phael, Problems of Political Philosophy, 1 0 5 - 6 . ** MacDonald's well-known discussion of natural rights prominently advances this kind of charge ("Natural Rights"). Feinberg discusses "human rights" instead of "natural rights" precisely to avoid such problems (Social Philosophy, 85). " "Atomism," 60. A Treatise of Human Nature, 3.1.2. Sumner is right, I think, in seeing realism as central to most natural rights theories ("Rights Denaturalized," 22, 26). His critique of natural rights theories is flawed, however, by his use against them of their alleged commitment to a view of rights as "morally basic" (22-25). Since Locke's theory, as w e have seen, is a "mixed theory" (in Sumner's terminology) in which rights are not basic (as are many other natural right theories, both classical and contemporary), those central aspects of Sumner's argument that rum on this attribution will hold only against a limited class of natural rights theories (and not against these theories as such). Lou100

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moral realism a n d objectivism are dearly still live issues in moral philosophy, neither of these corrurutments for the natural rights theorist is obviousl^ damning. The defender of natural rights need not embrace intuitionism, " o d d properties," or any other " h o p e ­ less" positions; ; Locke,, of course, also u s e s "natural" (in connection with t h e natural law that defines natural rights) to mean that the thing in question cain b e "perceived by use of our natural faculties" and that it is "in accordance with man's n a t u r e " (1.1, especially note 3). The first, Of these meanings is already implicit in the commit­ ments noted above, but the second is the basis for some of the most familiar criticisms of natural rights theories. Natural rights must b e derived from or s o m e h o w turn on facts about h u m a n na­ ture, the a r g u m e n t goes. But (1) one cannot simply read off moral facts from natural facts in this w a y ; (2) there is no fixed " h u m a n nature" to appeal to in such arguments; a n d (3) any moral theory derived in this way w o u l d b e either too abstract or too inflexible to be relevant to the rriany different social and economic contexts to which moral concepts ought to be applicable. We have,'seen, however, that (1) Locke makes no real effort to simply "read off" his natural morality from facts about h u m a n na­ ture (1.4) (nor does the related Kantian position we outlined). His argument concerns: not w h a t is "natural" for h u m a n k i n d in this simple sense, but rather w h a t is rational. To the extent that his der­ ivation of natural rights relies upon facts about h u m a n nature, it relies only u p o n relatively uncontroversial a n d extremely general claims (about; e.g.!- rationality, desire for self-preservation, mod­ erate soctableness, etc.). Further, (2) possession of rights for Locke 102

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den's critique ("Rights Infatuation") is another (identically flawed) entry in the growing (and, in m y view, misguided) literature that attacks natural rights theories is if they all take rights to be morally basic or primary (and are feebly and unsuc­ cessfully trying to derive duties, virtues, and all other moral categories from rights). See the e s s a y s i n C o p p and Zimmerman, Morality, Reason and Truth; SayreMcCord, Essays on Moral Realism; and Gillespie, Moral Realism. See, for example; .MacTJonald, "Natural Rights," 27-31; Sumner, "Rights De­ naturalized," 3,8-39; Ingram, "Natural Rights," 6-12; Olafson, "Essence and Con­ cept," 235-37; Freed e n , "Human Rights and Welfare," 500. Waldron discusses and replies to some similar criticisms (leveled by Hegel and Marx) in Nonsense upon Stilts, 1 6 6 - 7 4 . * The problem here is not just that of deriving "ought" from "is," although Machan, for one, takes worries about the naturalistic fallacy to be die primary source of natural right skepticism (Individuals and Their Rights, 183-86). I do not here address these worries, since I aim only at defending natural rights theory from charges that it is a nonstarter, and legitimate philosophical debate about the coher­ ence of ethical naturalism has clearly not yielded a decisive verdict on the subject. m

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(and on t h e Kantian reconstruction as well) t u r n s not on the pos­ session of "essentially" human traits, b u t on the capacity for moral agency, which is not logically tied to a particular conception of hu­ man nature. Finally, (3) the view that the "eternal, immutable" character of natural law (and rights) makes it obviously unaccept­ able given the widely different kinds of people a n d societies to which it is supposed to apply, ignores several points. First, of course, it ignores the extent to which Locke's reasoning is based o n w h a t m a y reasonably b e perceived as elemental, e n d u r i n g fea­ tures of the h u m a n condition that do in fact unite cultures and economies that are otherwise quite d i v e r s e . But second, it ig­ nores Locke's view that the content of natural law a n d rights may be, at least in part, determined by specific h u m a n rules, conven­ tions, a n d ways of life (2.3). Morality sanctions rules that are "suited to the interest and welfare" of particular societies, how­ ever m u c h this may seem "to limit a n d alter the obligation even of some of the laws of God, a n d change the nature of vice a n d vir­ t u e " (ECT, 183). Similarly, Kantian arguments t h a t require respect a n d forbid using others as means can acknowledge that w h a t counts as respecting a n d using others may vary in certain regards (with varying customs a n d expectations) from place to place and time to time. (b) Rights as products of (eliminable) class conflict: The above critique of natural rights for their (supposedly) "static" character naturally leads one to the fuller Marxist assault on liberal rights theory. (I here treat Marx's arguments as applying only to rights, leaving aside his occasional suggestions that all morality, a n d not just bour­ geois morality, being a product of class conflict, is ultimately dis­ pensable.) The outlines of the argument are familiar. The "rights of m a n , " according to M a r x , are really only the rights of the bourgeoisie, the interests of the ruling class, selfishly a n d decep­ tively portrayed as eternal law. There is nothing natural about nat­ ural rights. Rights presuppose the egoism a n d alienation of hu­ mankind, are necessitated by the conflict between people that is "natural" only to certain stages of socioeconomic history. .When cjass_conflict is overcome, so will be the need for rights. Natural rights are a tool for class domination, designed (albeit p e r h a p s un­ consciously) to preserve the status quo in the unequal division of 105

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us Waldron, Nonsense upon Stilts, 169 - 74. See, for instance, Lomasky, Persons, Rights, chapters 4 - 5 . 1 draw for this (truncated) account primarily on Marx's On the Jewish Question, Critique of the Gotha Program, and The Communist Manifesto. 1 0 6

1 0 7

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power a n d property, to allow those w h o have most to keep it, un­ fettered by the desires a n d n e e d s of o t h e r s , The s o u n d e s t Lockean response to Marx would, I think, attack his apparent reduction of all conflict to class conflict. Supposing that rights only h a v e a point w h e r e interpersonal conflict is possi­ ble, it is a mistake: to think that any form of economic life could eliminate this point, even a form in which scarcity is n o t a problem (as Marx, ndt very convincingly, supposes will be the case in the last stage of; communism). This is not to argue that egoism and social irresponsibility are meliminable features of h u m a n life, but only that t h e ' n e e d for certain k i n d s of security may well b e . "The sorts of interpersonal conflicts which rights-principles are or can be invoked to cope with do not presuppose egoism or class con­ flict, but merely confHcting preferences a n d the need to coordinate social activity in a n efficient w a y . " 108

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Buchanan, "What's So Special about Rights?" 62. The full presentation of the argument is in Marx and Justice. For a defense of rights against the charge that they are essentiaHyegoistic, see Waldron, Nonsense upon Stilts, 190-209. »° Waldron, Nonsense upon Stilts, 3. Here I draw primarily upon Bentham's Anarchical Fallacies, Pannomial Frag­ ments, and Of Laws in General. ' See, for example, Harrison, Bentham, 77-79; Waldron, Nonsense upon Stilts, 40-44; Hart, "Natural Rights," 8 2 - 83, and "Utilitarianism," 186. I draw on these same works below. Plamenatz, Consent, Freedom, 99-100. w

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frequently credited with the view that rights, being wholly deriv­ able from duties, are eliminable a n d hence superfluous moral con­ cepts. I address this claim in (e) below. The centerpiece of Bentham's attack on natural rights, however, is the charge that they (like natural laws) are fictitious entities a n d talk about t h e m is so much nonsense. This is, in part, a positivistic insistence that if rights-claims cannot be tied to something con­ crete and t h u s m a d e verifiable, they are not defensible. Laws and sanctions, for instance, are real, concrete entities; but they require legislators, enforcement mechanisms, a n d complex institutions. Lacking this grounding, natural rights are nonsense (although, of course, natural law theorists typically t h o u g h t they could tie the rights they defended to a real [albeit divine] lawgiver a n d real sanctions). M o r e precisely, all rights are fictions for Bentham, in­ cluding legal rights. But legal rights can b e subjected to an analysis that e n d s in real entities (since laws are real, a n d the primary fic­ tions—legal duties—can b e analyzed in terms of law; a n d the sec­ ondary fictions—legal rights—can b e analyzed in terms of duty). The analysis of natural rights ends only in natural law, which is also a fiction, having no real effect on the w o r l d . The only "real" (i.e., grounded) rights, then, are legal rights. 114

Bentham's position cannot really be quite so simple as this, however. For, in the first place, Bentham allows that the duties defined by a society's conventional morality (and enforced by so­ cial sanctions) are not nonsensical. Since he allows moral duties of this sort, h e is committed to allowing conventional moral rights as w e l l . Rights, then, require not so m u c h formal institutional def­ inition as concrete social recognition. But second, a n d more im­ portant, Bentham also seems to accept nonconventional moral du­ ties—those g r o u n d e d in the principle of utility—which are not analyzable in terms of sanctions or even concrete social recogni­ tion. It is t h u s not clear w h y Bentham is not also obliged to rec­ ognize moral rights that are based not in actual social institutions or practices b u t in a conception of justifiable or ideal practices (a la Mill). A n d this, of course, is perilously close to w h a t natural rights theorists have w a n t e d . 115

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"« Harrison, Bentham, 80 - 86. "* Hart, Essays on Bentham, 8 4 - 85; Sumner, "Rights Denaturalized," 2 8 - 2 9 . "* Hart, Essays on Bentham, 8 5 - 9 0 ; Waldron, Nonsense upon Stilts, 37-38. "' Because the "need for security" is a need that is present in all societies, on Mill's view, the utilitarian derivation of rights h e offers in chapter 5 of Utilitarianism is virtually a defense of natural rights. See Oppenheim, "Metaphysics," 245. I

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The real question ffor Bentham seems to be just this: h o w can w e defend the existence of moral rules (defining rights) independent of their concrete grounding in some form of social recognition? Bentham, for;the most part, seems to simply assume that this is impossible. Moral i^iles would, for h i m , have to b e like legal rules in order t o b e respectable entities; because they manifestly are n o t like this, they are d i s c a r d e d . But this, of course, simply begs the question a t issue, arid can in n o w a y b e regarded as a refutation of natural rights, theory. It is precisely because natural rights concern what ought t o b e t h e case, h o w people should b e treated, that at­ tempts to portray t h e m as confused or silly accounts of w h a t soci­ eties in fact recognize must themselves be admitted to be con­ fused. nB

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(d) The social character of rights: The way of characterizing Ben­ tham's concerns that I presented above suggests different (and more Hegelian or Aristotelian) approaches to the charge that tra­ ditionally recognized natural rights are flawed by virtue of their distance from concrete social recognition. In a way, it is Bentham's position as liberal reformer, embracing a critical moral standard (the, principle of utility) that is not "socially instantiated," that ul­ timately u n d e r m i n e s his o w n attack o n natural rights. Conserva­ tive theorists, w h o acknowledge n o such critical moral standards, avoid Bentham's difficulty (although their conservatism can, of course, still involve defending precisely those practices and insti­ tutions that have often been thought to be justified b y appeals to natural r i g h t s ) . T. H . Green, for instance, allows that persons have "natural rights" in a sense, b u t only as members of some (not necessarily political) community. His conservatism flows naturally from the vieW; that a kind of shared social consciousness and m u 120

This same: style of argument, in a more sophisticated form, is still being used against natural rights theories. See Sumner, "Rights Denaturalized," 3 0 - 3 3 . Harrison, Bentham, 99-104. in light of the recent popularity of Alasdair MacIntyre's After Virtue, it is worth mentioning here that a significant part of MacIntyre's attack o n natural rights has very much the sound of Bentham's critique. Like Bentham, Maclntyre dismisses natural rights as "fictions" (After Virtue, 67). He argues as well that rights require "the existence of particular types of social institution or practice," that without these institutions, making claims will not be an "intelligible" activity that will have any social effect (although their different metaphors reveal one difference in their views—where Bentham compares natural rights to counterfeit currency, Maclntyre compares them to checks in a society lack­ ing the institution of money [ibid., 65]). In part, Maclntyr«'s case here begs the same questions as did Bentham's; but it rests as well o n a different kind of foun­ dation (to which I turn n o w ) . w

As in what Rorty calls "postmodernist bourgeois liberalism" ("Postmodern­

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tual recognition of right are necessary for the generation of rights (although a political association; with a legal system, is n o t ) , Re­ lated positions have recently reemerged in t h e writings of m a n y contemporary communitarian critics of liberalism (and of the con­ cepts liberalism employs), such as M a d n t y r e , Taylor, a n d Sand e l . As suggested above, in some cases these views seem to rest on little m o r e than straightforwardly question-begging a s s u m p ­ tions: for example, that it makes no sense to talk of rights indepen­ dent of the social effects of positive recognition of those rights. But clearly m a n y (especially recent) arguments on these lines cut rather deeper. 121

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In one sense these arguments revive the critique from " h u m a n n a t u r e " w e considered in (a) above. There is n o " n a t u r e of m a n , " the a r g u m e n t s go, i n d e p e n d e n t of all aspects of social determina­ tion. "To be a man is to fill a set of roles each of which has its o w n point a n d purpose: member of a family, citizen, soldier, philoso­ pher, servant of G o d . " The person (self, man) is not s o m e h o w prior to these essentially social roles; w e are (in part) constituted by our playing these roles. It is only " a s members of this family or community or nation or people, as bearers of this history, as sons a n d daughters of that revolution, as citizens of this republic" that we can understand the persons w e a r e . We are selves partly " e n c u m b e r e d " by the aims, beliefs, conceptions of the good that are given in the relations w e have with others in society. Such 124

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Lectures on the Principles of Political Obligation, paragraphs 1 3 8 - 4 1 . See also the similar views of Bosanquet (The Philosophical Theory of the State) and Laski (A Grammar of Politics). I confess that at times Green seems to me to be advancing a position that Locke could easily accept, although the general thrust of Green's argument is clearly quite different—for him, a Lockean right is only a "right potentially, which becomes actual through the recognition . . . by a sodety, and through the power which society xn consequence secures to the individual" (paragraph 151). Plamenatz agrees with Green that there are only rights in societies, but he forcefully denies Green's claim that these rights depend for their validity on social recognition (Con­ sent, Freedom, 8 6 - 8 7 , 9 0 - 9 7 ) . See also Ross' well-known critique of Green's view (Right and the Good, 5 0 - 5 2 ) . For selections from their work and from that of other recent critics of liberal­ ism, see Sandel, Liberalism and Its Critics. Traditional conservatives—for example. Burke and more recently, Oakeshott—defend similar criticisms in rather different ways. Benn and peters. Social Principles, 97. See also Anscombe, "On the Source," 13-14; and Bandman, "Do Children Have Natural Rights?" 244. Madntyre, After Virtue, 56. Elsewhere Madntyre writes: "The rational justifi­ cation of my political duties, obligations and loyalties is that, were I to divest myself of them by ignoring or flouting them, I should be divesting myself of a part of myself, I should be losing a crucial part of my identity" ("Philosophy and Politics," 158). '» Sandel, Liberalism and the Limits, 179. 113

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claims seem to b i n d the otherwise different contemporary critirisms of natural rights together. But are these claims a problem for the natural rights theorist? Locke, after all, acknowledges t h e indispensability of t h e family and society in helping the individual to develop a n d m a t u r e . As we have seen, Locke's persons are naturally " d r i v e n " into society and will clearly b e "partly constituted" by their social relations; indeed, it is h a r d to'see just w h o would w a n t to d e n y this view of huoaankind. But Lockean persons still seem able to be bearers of natural rights.' Is t h e problem that (a la Sandel) accepting this, Locke can n o longer defend the priority of the right over the good, since h e can n o longer appeal to a n individual w h o is a bearer of rights without being equally a bearer of "goods"? We cannot de­ rive rights first, from t h e "real" person, then worry about the good later, as if t h e good w e r e a n object of perfectly free choice for con­ ceptually pridr rightbearers. O u r selves are constituted in part by ends and aims w e h a v e not chosen. 126

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But, in the first place, this can all be accepted without denying that individuals still feel free a n d m u s t be left free to question, revise, a n d possibly reject the communal or familial values they inherit. I n d e e d , to the extent that rights are not allowed to pro­ tect such freedom, t h e possibility of true personal commitment to the values favored b y communitarians may be replaced b y a kind of mindless ' l i e r d solidarity." Second, rights need not have ab129

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™ "OUT identity i s always partly defined in conversation with others or through the common understanding which underlies the practices of our society" (Taylor, "Atomism," 60). The "moral self" is not "the embodiment of rationality," but "a network of beliefs, desires; and emotions" tied to "other members of some relevant community" (Rorty, "Postmodernist," 585-86). A s Waher notes, however, com­ munitarian attacks o n liberalism are often an uneasy mixture of claims such as these and claims that the people w e have become are in fact individuals Cut loose from ties, commitments, and shared e n d s ("Communitarian Critique," 7-11). 5ee, for example, Tully, Discourse, 11, 24, 49; Amhart, Political Questions, 231; Kendall, Majority-Rule, 7 3 - 7 4 ; Parry, John Locke, 44; Rapaczynski, Nature and Poli­ tics, 163n; Yolton,' Locke, 5 6 - 5 7 ; Ashcraft. Locte's Taw Treatises, 107, 111; Shoeman, "Social Theory of Rights.'.' Walzer, "Communitarian Critique," 20-21; Petttt and Kukathas, Rawls, 117. See the forceful defense of this point in Kymlicka, "Liberalism and Commurdiarianism" 1 8 9 - 9 5 . Buchanan, "Assessing the Communitarian" 871-72. "The communitarian begs the question against liberalism if she simply assumes that individual rights will not be n e e d e d to make community compatible with commitment—genuine commitment, as distinct from unreflective, herd solidarity. While it might so hap­ pen that a community that d i d not exist within a liberal framework of individual rights managed to achieve self-criticism and progress or w a s blessed at the outset with a stable set of humane values, this woujd be sheer good fortune" (872). 0 7

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solute priority for the natural rights theorist (as w e have seen they do not h a v e for Locke); this claim of absolute priority is in n o way a necessary feature of the position. Natural rights in Locke are ab­ solute neither with respect to other rights nor with respect to con­ siderations of social good, and this seems a view liberals should accept." M o s t important, however, w h a t priority rights do have can be based (as it is in Locke) not o n some intrinsic conceptual or psychological priority, but on the p e r m a n e n t possibility of conflict caused (in part) by t h e diversity of sources of "the g o o d " to which communitarians appeal. In pursuing both the good for h u m a n k i n d and the various goods for particular h u m a n beings, communities, and societies, the necessary limitation a n d coordination of our ac­ tivities are expressed morally in the natural rights w e possess, de­ rivable from certain features of the admittedly more complex self a n d the enduring aspects of its m a n y possible social embodi­ m e n t s . These natural rights do not destroy the possibility of gen­ uine community a m o n g persons; rather, they can facilitate and protect community, not only in hopelessly pluralistic, b u t in strongly h o m o g e n e o u s societies. 1

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Perhaps the problem is that society is necessary even for the possession of those minimal h u m a n capacities on which natural rights are allegedly based, such as rationality or the capacity for choice or valuing. Taylor argues, for instance, that people "can only develop their characteristically h u m a n capacities in society. . . . living in society is a necessary condition of the development of rationality . . . or of becoming a moral a g e n t . " Indeed, the bearer of the liberal rights Locke champions could exist only in a 134

»' Ibid., SSI. This may be part of what A m y Gubnann has in mind in "Communitarian Critics," 3 1 0 - 1 1 . It remains a /act, of course, that most existing societies are sufficiently plural­ istic as ta require their current focus o n rights a n d justice (Wafzer,''Communitarian Critique," 9). But rights are extremely valuable even where there is unanimity about pursuit of a common good; for even there will exist the permanent possibility of conflict over strategies and concrete instantiations, which rights can diminish or resolve (Buchanan, "Assessing the Communitarian," 877). Buchanan has persua­ sively argued for viewing the liberal rights theorist as a kind of cautious or pessi­ mistic communitarian (ibid., 860), one w h o wants to encourage genuine commit­ ment, not social fragmentation (867-71), and to protect community by the enforcement of individual rights to form new communities and to depart from ex­ isting o n e s (862-63), but w h o lacks the communitarian's optimism that these free­ doms will be likely to be respected without acknowledgment of individual rights to them. w "Atomism," 42. ,:W

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particular form of political society. If this is true, however, it seems there could bje no natural rights in our sense (i.e., rights that could be possessed in the state of nature), for only in certain kinds of societies .could the capacities o n which those rights are based develop. Natural rights presuppose the self-sufficiency of the moral agent (the view Taylor calls " a t o m i s m " ) . Taylor's a r g u m e n t rests in the end, I flunk, either o n a confusion or on mere assertion (and in the latter case, o n an assertion that is not independently plausible). For h e must maintain that it is not even possible that moral agency (of the minimal sort claimed by liberals to b e suffident for natural rightholding) could develop out­ side of political society. If this were possible, there could b e natu­ ral rights. It is, as we. have seen, o p e n to the natural rights theorist to maintain that o u r natural condition is typically social, involving significant relations with family a n d others, and even that only in this social natural, condition can w e become rightholders. What may seem to u n d e r m i n e the natural rights position (and p e r h a p s What bothers Taylor) is that the state of nature (e.g., w h e n it is particularly poor or primitive or asocial) might well not in this way provide the necessary conditions for the development of moral agency. Indeed^ particularly b a d sorts of societies might also b e so oppressive that their members (or, at least, significant n u m b e r s of them) never develop the capacities on which rights d e p e n d . W h a t becomes of the supposed natural rights of people in these condi­ tions below t h e "threshold" of sociability necessary for moral agency? 136

1

The answer,, of course, is that w h e r e people cannot (or simply do not) develop t h e capacities necessary for rightholding, they do not have natural rights (in t h e s a m e w a y that t h e insane, idiots, a n d [perhaps] y o u n g children seem to have no rights in Locke). Those who are n o t persons (moral agents) are not u n d e r the moral law. The natural rights theorist (and certainly Locke) is not corrunitted to asserting t h a t all h u m a n s in all places at all times h a v e rights, but only to t h e claim that all persons naturally acquire certain rights along w i t h their personhood. But being a person or moral agent does not, in the way Taylor suggests, presuppose any par­ ticular conventions, rules, laws, or practices. M a n y different k i n d s 0 9

Ibid., 58-60. Ibid., 41. See Scott-Craig's similar claims about Locke's "atomism" and his assertion that "only in the construction of, and by participation in, tine constitu­ tional state are . . . rights perfected, fully naturalized, fully actualized" ("John Locke and Natural Right," 33-34). , M

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of arrangements, both political and nonpolitical, can clearly suffice for the d e v e l o p m e n t of those irunimal capacities necessary for Lockean agency or p e r s o n h o o d . Families in isolation can pro­ vide conditions adequate for this, as can virtually all kinds of so­ cieties (although neither will necessarily do this). It may well be true that certain kinds of societies a n d , p e r h a p s even more so, cer­ tain kinds of political societies will best facilitate t h e g r o w t h of moral agency, true autonomy, and healthy independence (so that w e ought, as a consequence, t o promote such societies). But this observation is a n o n sequitur as far as any a r g u m e n t (Lockean or Kantian) for the possibility of natural rights is c o n c e r n e d . 137

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What about societies above the "threshold" for promoting agency that nonetheless do not recognize natural rights, such as the ancient Greek or Roman societies? "It would of course be a little o d d , " M a d n t y r e writes, "that there should be such rights at­ taching to h u m a n beings simply q u a h u m a n beings in light of t h e fact - . . that there is no expression in any a n d e n t or medieval lan­ guage correctly translated by our expression 'a right' until near the close of the middle a g e s . " This is not, of course, proof "that there are n o natural or h u m a n rights," but it should raise suspid o n s . A n d M a d n t y r e tells a story to support these doubts. We m o d e r n s have "very largely, if not entirely—lost our comprehen­ sion, b o t h theoretical a n d practical, of morality." T h e rules of morality w e embrace have been cut loose from their original grounding in a conception of what is "teleologically appropriate for a h u m a n b e i n g " and in the commands of G o d . Deprived of these foundations for our moral beliefs, desperate invention was required to anchor u s again. One important part of this self-decep­ tive project was the invention of "the m o d e m individual," the ra139

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Perot and Kukathas, Rawls, 1 0 8 - 9 . ™ This observation is also, contra Taylor, irrelevant to the natural rights theo­ rist's view that each person is morally free to choose which political society to join or support (or whether to enter or support one at all). For our obligations toward our children (and our limited obligations to others) are only to provide the condi­ tions necessary for their development of personhood, not to provide those condi­ tions in any one, particular, specifiable way (e.g., by joining a certain kind of polity that best fosters these conditions). ™ After Virtue, 6 6 - 6 7 . ' * Ibid., 2. Ibid., 57-60. It is not dear if Madntyre intends to attack Locke o n these grounds (since Locke is barely mentioned in After Virtue). Locke had not, after all, broken from these "original groundings," but, as I have argued, merely added to them. The characterization of Locke in Madntyre's other work, however, s e e m s to suggest that Locke should come in for the same kind of assault (see Stort History, U 1

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tkmal, autonomous bearer of the natural rights of m a n , rights at­ taching to this mdividual "as such." This "individual" w a s "a n e w social and cultural artefact." * But it is possible to tell other kinds of stories in which "the mod­ em individual/' the person w h o bears natural rights, is not so much invented as discovered. * We have seen (in 2.3) h o w on cer­ tain weolo^cal'vievys, rights-talk, and the perception of natural equality oh which it rests, is naturally suppressed. It is even more plain that rigid social classes a n d hierarchies of certain sorts, as well as the economic: forms of life t h a t s h a p e d a n d accompanied them, greatly reduced the visibility of equality, a n d consequently also prevented the perception of shared natural rights. In addition to these factors, simple ruling-class self-interest (and self-decep­ tion from other sources) contributed t o the failure t o take seriously the moral conclusions which followed from feeble recognitions of natural equality. * It w o u l d , then, be far from surprising, a n d cer­ tainly not unintelligible, if persons in other cultures and times pos­ sessed the natural rights of w h i c h Lockeans write, without a n y general social recognition that this w a s the c a s e . The Greek's "barbarian" slave, ignorant of the language a n d culture of his cap­ tors, could n o more b e perceived as his equal than the Greek's wife, hidden b y different but equally impenetrable blinders. But that they w e r e (often) his equals in the w a y s Locke suggests is hard to deny. The "moral moorings" of past philosophies can be 1

2

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portrayed as shallow a n d self-deceptive t o o .

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Maclntyre, Whose Justice? Which Rationality? 339. Indeed, even the language of "discovery" s e e m s too strong here, given that In many cultures that employed no explicit concept of rights, some such concept daity operated "just below the surface" of moral discourse, not being fully artic­ ulated until the rights in question became more important socially (see Golding, "Primacy of Welfare Rights," 125). **• This s e e m s the best Lockean response as well to Young's claim that "it ought to be deeply disturbing that our talent for moral epistemology should apparently h*ve developed s o rapidly in recent human history thereby enabling u s to detect to many previously unrecognized rights" ("Dispensing with Moral Rights," 70). It a not any "talents" that m o d e m s have miraculously acquired, but the removal of certain personal, social, economic, and religious blinders, which accounts for the "discovery" of natural rights. w Plamenatz, Consent, Freedom, 91. •* It is, I think, often tempting to allow historical and social explorations, which lotnetimes s h o w us h o w moral concepts come into use and become firmly en­ trenched, to deflect our attention from the project of determining whether moral judgments using those concepts are justified or valid. That the two are distinct proj­ ect} seems undeniable. To maintain the contrary would be like arguing that be­ cause the church is responsible for our views of God, there is n o independent ques­ tion of tile meaningfulness, truth, or justifiability of religious propositions. This is 1 0

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Maclntyre asserts, however, that "the truth is plain: there are no [natural] rights." We have a good reason to assert this, which is "of precisely the same type as the best reason which w e possess for asserting that there are no witches and the best reason which w e p o s s e s s for asserting that there are no unicorns: every attempt to give good reasons for believing that there are such rights has failed." Now, first, nothing is plainer t h a n that w h a t will be c o u n t e d as success in an attempt to give "good r e a s o n s " here is every bit as controversial as whether or not there are natural rights. But second, our reasons for asserting that there are no w i t c h e s or unicorns are n o t at all the s a m e as t h e reasons w e might h a v e for doubting the existence of natural rights. Belief in witches a n d unicorns conflicts in a straightforward way with belief in firmly entrenched a n d well-supported physical theory a n d biolog­ ical evidence. A belief i n t h e former requires a decision t o abandon the latter, which is at best difficult a n d at worst irrational. N o such choice is forced by a belief in natural rights. That such rights are n o t " o u t t h e r e " to b e discovered is a problem only for o n e who d o e s n o t u n d e r s t a n d , or willfully ignores, the functions of moral j u d g m e n t s . Whether the existence of natural rights has been, or can b e , proven, is a reasonable ground for controversy. Maclntyre is surely right that w e m u s t look to the actual arguments for nat­ ural rights a n d j u d g e their success, rather than simply deciding in a d v a n c e that such arguments could not succeed or could not fail to s u c c e e d . But belief in natural rights is neither obviously irra­ tional nor clearly wishful in the way m a n y skeptics suggest. 147

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(e) Natural rights as eliminable: Whether or not natural rights are mischievous fictions or desperate a n d self-deceptive inventions, it is sometimes argued, they are at least eliminable from our moral repertoire as superfluous dead weight. Right-talk does n o new w o r k that cannot be d o n e equally well by more basic (and respect­ able) talk of duties. Since all statements about rights are translat­ able w i t h o u t loss into statements about their correlative duties, we can d i s p e n s e with talk of natural rights altogether. 150

not, of course, to argue that explanations of how our moral language comes into use or of its role in our lives is not relevant to the latter kind of question, but only that the first project cannot be a simple substitute for the second. After Virtue, 67. See Gutmann, "Communitarian Critics," 314-15. "* Kymlicka, "Liberalism and Communitarianism," 2 0 2 - 3 . Tuck attributes this argument to Pufendorf and Bentham (Natural Rights Theo­ ries, I), although I confess to being unable to find exactly these claims in either (for suggestions that Bentham, at least, had nothing so simple as this in mind, see Har147

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It is worth m a k i n g at least t w o points in response to such argu­ ments. First, they obviously require a strong defense of t h e claim that duty is a m o r e basic or indispensable concept than right; for otherwise, trie s a m e style of argument is available for the elimina­ tion of duties from pur moral vocabulary. Locke, for instance (or so I have argued), treats neither concept as m o r e basic than the other. It is sometimes thought sufficient to prove that duty is more basic, that rights always have correlative duties (in terms of which they can be analyzed), but that some duties (imperfect duties) do not correlate with a n y rights (and so cannot be analyzed in terms of correlative rights). But this defense d e p e n d s , first, on there be­ ing imperfect moral duties (which, I will claim, Locke does not acknowledge); and, second, on it being the case that the meaning of "duty" remains perfectly constant between the cases in which duties do a n d d o not correlate with rights of others (which it b y no means obviously does). The second point that needs making is h o w controversial it is to claim that there is any simple translation available of the sort this argument requires. Those w h o reject simple versions of the benefit theory of rights (as, I have claimed, Locke would) will be h a r d pressed to find a n alternative theory that will also make rights look elirrdnable without loss. It is w o r t h emphasizing that being com­ mitted to the logical correlativity of rights a n d duties in n o way commits o n e to the view that the meaning of "right" can be fully captured in statements about correlative duties. Logical correlativ­ ity involves no more, than the availability of valid inferences from propositions concerning the existence of a right to propositions concerning the existence of a d u t y . Even the stronger thesis of conceptual correlativity does n o t entail simple translatability. For rights to be correlated with duties is not necessarily for rights to be "mere correlates" Or " s h a d o w s " of those d u t i e s . 151

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And what is in any event undeniable is that right-talk does a d d nson, Bentham, 9 4 - 9 5 ) . Hart finds this style of argument in Hiering (Essays an Ben­ tham, 181-82) and Lemos tries to use it against Locke (Hobbes and Locke, 1 6 8 - 69). It b, in any event, a natural move for anyone w h o holds that to have a right is simply to be the intended beneficiary of a duty or for any others w h o believe in simple translatability—for example, Brandt, Ethical Theory, 441; or Benn and Peters, Social Principles, 89. As Louden correctly observes, the argument from correlativity to eliminability is * "red herring" ("Rights Infatuation," 92). One pursuit of this red herring is in Arnold, "Analyses of Rights," 7 8 - 7 9 , 8 2 - 8 3 . *» Lyons, "Correlativity of Rights and Duties," 47. The first phrase is Shapiro's (Evolution of Rights, 105; m y emphasis); the second is how Warrender describes rights in Hobbes (Political Philosophy of Hobbes, 19). W1

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considerably to our moral world, b e y o n d w h a t duty-talk brings with it. There is n o "adequate replacement" for rights. A s we h a v e s e e n (in 2 . 4 ) , rights bring w i t h t h e m the ideas of something being owed to another person and of p e r s o n s being wronged (as op­ posed to the idea merely of wrong being d o n e with respect to an­ other). Duty, by contrast, lays its emphasis o n w h a t " m u s t be d o n e / ' n o t o n w h a t is o w e d t o another. We cannot capture in the language of d u t y several of the distinctive features of right-talk or the concepts with which rights are inextricably b o u n d u p . I em­ phasize here just three (already familiar) features of rights that il­ lustrate their inehrninable character. (1) Rights are inseparably connected with a distinctive sort of respect for persons, a kind of respect that is not possible in the absence of rights (as I argued in 2.4). In Feinberg's words, 'To respect a p e r s o n then, or t o think of h i m as possessed of human dignity, simply is to think of him as a potential maker of claims"; "respect for persons . . . m a y simply be respect for their rights." * Rights are g r o u n d s for se//-respect; rightholders are entitled to things a n d have a kind of personal sovereignty, rather t h a n being entirely d e p e n d e n t on others' personal decisions about whether or not to do their duty. This ground of self-respect is intimately con­ nected with respect for other, similarly e n d o w e d beings. And without t h e conception of moral agents as bearers of natural rights, this sort of respect for persons would not be possible. * The point here is not that rights justify conduct that w o u l d not otherwise be justifiable, b u t rather that they change the way we look at persons; t h e bearer of rights can think of self a n d others quite differently than can the bearer of (only) d u t i e s . 154

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Brandt, "Concept of Moral Right," 30. See Louden's convincing argument that attempted reductions of rights all fail ("Rights Infatuation," 9 4 - 9 5 ) . Brandt seems to share this view, allowing that rights are part of "an optimal conceptual scheme for morality" (45). Even some of those w h o think Feinberg's claims (see below) are mistaken, nonetheless accept that rights are valuable (not eUminable without loss). See, for example, NeJson, "On the Alleged importance of Moral Rights," 155. i» And as Feinberg has emphasized in his much-discussed paper, "The Nature and Value of Rights." * Ibid., 87. See also Hill, "Servility and Self Respect," 119. See Buchanan, "What's So Special about Rights?" 7 5 - 7 7 ; Melden, Rights and Persons, 23-26; and Bondman, "Do Children Have Natural Rights?" 236. This may also be part of what Shoeman has in mind in asserting that "a theory of rights . . . serves to describe a moral picture of what it is to be a person" ("Social Theory of Rights," 130). IM A s even some critics of rights theories acknowledge: for example. Louden, "Rights Infatuation," 93; Nelson, "On the Alleged Importance of Moral Rights," 1S

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(2) It is often (and, I think, correctly) claimed that rights are in­ dispensable for such activities as dairning, demanding, or insisting on actions or o u t c o m e s - Natural rights, of course, would be nec­ essary for these activities to b e available to persons generally (and not just to citizens, within legally defined channels). Attacks on this position h a v e come from two main directions. O n the one hand, it is a r g u e d that w e can perfectly well make sense of claim­ ing or d e m a n d i n g in a world without rights. Duties can do the job as well as rights. W h e r e the rules impose duties on others, and where I a m h a r m e d (or not benefited) as a result of another's breach of duty,, it m a k e s good sense for m e t o complain a n d de­ mand satisfaction. Rights are not needed to justify or make intel­ ligible ''clainuxig.'' Second, it is argued that tying rights in this way to dairning or demanding shows that right-talk is objection­ ably contentious or strident. This is either a reason for rejecting rights as unnecessary (and, indeed, as "mischievous'') or a reason for seeking a different w a y of talking about rights. 159

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To the first attack it seems adequate to reply that without rights the best one can d o is to "invoke enforceable prohibitions"—I can call on others to d o their duty or o n the law (or society) to enforce others' legally (or morally) prescribed duties. But if these perform­ ances are n o t owed to me, m y position is not interestingly different than that of a n uninyolved bystander (in spite of the h a r m I suffer or benefit I a m denied b y the breach of duty). I can d e m a n d com­ pliance with the rules as an outraged member of the rule-governed community. But I c a n n o t claim compliance as d u e me. It is this kind of claiming t h a t makes sense only in a world with rights. As rightholder (but not otherwise), w h e n some decide it is best not to re­ quire others to d o their duty, a n d w h e n their breach of duty also harms me, I h a v e something left to say. To the second attack it is Feinberg, "Nahire and Value of Rights" {and other works); Hart, "Are There Any Natural Rights?"; Wasserstrom, "Rights, Human Rights"; Brandt, "Concept ot« Moral Right"; L y o n s , "Human Rights"; Becker, 'Individual Rights"; and many others. w Buchanan, "What*s So Special about Rights?" 71-75; Nelson, "On the Alleged Importance of Moral Rights," 149-54; Young, "Dispensing with Moral Rights," 6771; Arnold, "Analyses of Rights." '*' The first line is taken by Young ("Dispensing with Moral Rights," 68); the second is taken by Waldron (Nonsense upon Stilts, 1 9 6 - 9 7 , 200). See also Narveson, "Commentary," 158; and Andrew's claims that right-talk is not only confused and contradictory, but isolating, friendless, and contentious (ShylocWs Rights, 15-21, 35-36, 7 8 , 1 2 7 , 1 6 9 - 70, 174 - 7 5 , 1 9 2 , 1 9 7 - 9 9 ) . Walzer comments on and effectively criticizes Weil's similar v i e w of right-talk as "shrill nagging of d a i m s and counter claims" (Just and Unjust Wars, 134n). 119

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sufficient to respond that being entitled to press claims (by virtue of possessing rights) is n o t t h e same as being entitled t o b e conten­ tious, adversarial, egoistic, or strident. There is n o need for claim­ ing to be an obnoxious activity. We m a y make claims o n behalf of others a n d recognize that there are sometimes good reasons not to press claims w e have. Indeed, Locke insists that children should be taught not to insist on their rights in a rigid way that produces conflict (Education, 109). The idea is only that rights give us claims that can be pressed forcefully w h e r e necessary. It is not at all obvious that this is a mischievous or undesirable feature of rights. But it is certainly a feature that cannot be captured with alternative moral concepts. 162

(3) A final feature of rights (discussed earlier, in 2.1) that would be eliminated in a world of (only) duties, is the realm of optionality and discretion they bring to our moral l i v e s . Morality is more flexible w h e n individuals have (limited) sovereignty over a portion of their moral worlds. Rightholders need not always exercise their (nonmandatory) rights; they may waive t h e m or invoke t h e m as the situation requires. This allows both the full consideration of other morally relevant aspects of our situation (beyond our rights) and the possibility of justified departures from the morally optimal (a point we have seen stressed by Locke [above in 1.4J). A world of duties (including even imperfect duties) cannot account for these useful and prominent features of our moral landscape. 163

164

There are n o doubt other sources of natural right skepticism than those I have tried to deal with here. But perhaps I have said enough to allay the doubts of some, or at least to make interesting the ventures into natural rights theory that follow. I turn in chap­ ter 3 to the first of t h e central special rights at w o r k in Locke (and in the Lockean theory of rights): the natural executive right, the right of all to punish. w

See Tarcov, Locke's Education, 140, 150. "° A m o n g those w h o have stressed this feature are Hart, "Are There Any Natu­ ral Rights?" 1 8 0 - 8 1 ; Buchanan, "What*s So Special about Rights?" 79 - 80; Nelson, "On the Alleged Importance of Moral Rights," 155; Benditt, Rights, 4 5 - 5 0 . Thus undercutting the moral necessity of "calculation" (see Finnis, Natural law, 221). Here, of course, we are speaking of the level of rights and duties. At the level of "all things considered" judgments, a different kind of flexibility is' available (even in a world without rights). 1 W

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3.1. A Natural Executive Right Most philosophical discussions of p u n i s h m e n t focus in o n e way or another on the question " W h e n is punishment just?" Even a brief glance at these discussions, however, reveals the m a n y different ways in which that question may be understood (as Hart, for ex­ ample, m a d e clear long ago ). We might, for instance, take it t o b e a question about the kind or a m o u n t of punishment that is just in response to various offenses, or a question about w h o can be justly punished, or a craestkm about w h e n (if) punishment is the proper response t o crime or wrongdoing. T h e array of possible answers to these three versions of the question, a n d observations about the ways in which these answers m u s t be related to one another, are well displayed in contemporary philosophical literature on p u n ­ ishment. There is, however, a fourth w a y of understanding the question " W h e n is punishment just?" that is not so often touched on in the literature onl punishment, because it places the question more squarely within the province of political philosophy. This in­ terpretation of the question makes it a question about authority and the "right to punish." What makes it just for one particular person or group (the legal authorities of our country of residence, for instance) t o punish u s , as opposed to some other person or group (private citizens, television talk-show hosts, t h e officials of some other government)? Now the territory covered in answering these questions is hardly virgin. It has been popular ground for political philoso­ phers for as long as t h e r e have b e e n political philosophers. W h a t is distinctive about this fourth interpretation of the question "When Is p u n i s h m e n t just?" is not its novelty, but rather the fact that the kinds of answers often given to the other three interpre­ tations of the question seem quite feeble w h e n offered as answers 1

1

Hart, "Prolegomenon to the Principles of Punishment." 121

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to this version of it. While o n e may b e convinced that the practice of p u n i s h m e n t is justified by its social utility (or the deterrent value of punishment), it is m u c h harder to believe that just anyone m a y rightfully p u n i s h (and so deter) others, or that t h e p e r s o n or group that may rightfully p u n i s h another individual is that person or g r o u p w h o s e doing the punishing would maximize total hap­ piness (or most effectively deter crime). This latter position might entail that citizens of country A could b e justly p u n i s h e d for their ordinary crimes b y the government of country B, provided only that this arrangement would be maximally useful. A n d again, while one might b e convinced that only those w h o deserve pun­ ishment m a y be justly punished, and only then to the extent de­ served, it is m u c h harder to believe that just anyone m a y rightfully p u n i s h those citizens w h o deserve it, or that those w h o m o s t de­ serve to d o the punishing are the ones entitled to do so. Neither one's general level of virtue nor one's peculiar talents in t h e area of punishing (e.g., special aptitude for being a judge, jailer, or ex­ ecutioner) are normally taken to establish any special claim to be the o n e w h o p u n i s h e s others. W h e n w e ask what makes it just for one particular person or group, rather than another, to punish some person, the answer that seems most natural concerns neither utility nor desert. It is not that our governments deserve to punish us, or that their doing so maximizes happiness; it is rather that they h a v e authority or the right to do so. Locke puts the point thus: To justify bringing such evil [i.e., punishment] o n any m a n two things are requisite. First, that h e w h o does it has com­ mission a n d p o w e r to do so. Secondly, that it be directly use­ ful for the procuring of some greater good. . . . Usefulness, w h e n present, being b u t one of those conditions, cannot give the other, which is a commission to p u n i s h . 2

The natural answer to our question makes central reference to au­ thorization a n d rights, a n d it has been the natural rights tradition in political philosophy that has emphasized this point most force­ fully. According to that tradition, one person (A) may justly pun­ ish another (B) only if either (I) A has a natural right to p u n i s h the crimes (wrongs) of B, or (2) B has alienated to A or created for A b y forfeiture a right to p u n i s h B for B's crimes (wrongs). This po2

A Second Letter Concerning Toleration, 112. Locke seems to have the same point in mind w h e n he distinguishes between the justifications of punishment o n the separable grounds that "it is effectual" and "it is just" (King, Life, 1:113). 122

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sition cannot adequately b e characterized as either purely utilitar­ ian or purely retributivist. It will n o t be. m y purpose here to evaluate the entire natural rights position o n p u n i s h m e n t , or to explore its relations to other views (for instance, Whether it is consistent with or even reducible to retributivist or deterrence views). I wish to concentrate instead on the natural rights; tradition's claims about w h o may justly mete out punishment, the tradition's answer to m y fourth version of the question of just rjunishment. And, even more specifically, I will pay' special attention to one aspect of those claims, a position shared by classical natural rights theorists (such as Grotius a n d Locke) a n d contemporary ones (such as Nozick a n d Rothbard). All persons in a state of nature, these authors claim, have a moral right to p u n i s h (moral) wrongdoers. This "natural executive right," of course, plays a very central role in Locke's account of how a government can come t o have the right t o p u n i s h its citizens (as it must in any Lockean account of these matters). But any the­ ory of p u n i s h m e n t m u s t either accommodate or reject this right. The motivation for defending the natural executive right seems reasonably clear. Lqcke (and other philosophers in t h e natural rights tradition) w a n t e d to claim that all political authority (or "power") is artificial, a n d so m u s t be explained in terms of more basic, natural forms of authority. Governments have rights to limit our liberty, for instance, only insofar as they h a v e been granted those rights by u s ; w e , however, possess these rights naturally (or, rather, are " b o m t o " a basic set of moral rights). Governmental rights, then, are simply composed of the natural rights of those who become citizens, transferred to government by some volun3

4

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' By which I d o not mean to claim that, for example, utilitarians d o not have alternative accounts of authority and rights to punish. For an elegant statement of the sort of position I have in mind here, and an explanation of h o w it lies between classical utilitarianism a n d classical retributivism, s e e Ross, Right and the Good, 5 6 61. * Honderich, Punishment, 158-62- I d o not believe that rights theories of punish­ ment collapse (as Honderich argues) into retributivism. I trust my argument below (3.5) will s h o w w h y this need not happen, since fairness, not desert, is the central notion at work. Honderich n o w classes rights theories as "rights retributivism," one form of the "new retributivism," with another being "restorative retributiv­ ism" ("Punishment, the N e w Retributivism"). The theory I outline below utilizes both "rights" and "restorative" elements. For some current examples of rights the­ ories of punishment, see Goldman, "Paradox of Punishment"; Hurka, "Rights and Capital punishment"; Haksar, "Excuses and Voluntary Conduct"; Quinn, "Right to Threaten." ' S e e Macpherson, Possessive Individualism, 218. Grotius' defense of this view 123

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tary undertaking -(e.g., contract, consent, or the granting of a trust). This transfer of rights m a y go unobserved by some (as w h e n consent is "tacit" only), but it must take place if government is to have a n y de jure power. However beneficial a n d fair the prac­ tices a n d policies a government enforces, it has n o right or author­ ity to enforce t h e m against an uncommitted " i n d e p e n d e n t . " The same story can be told about a g o v e m m e n f s right to punish criminals. This right, like all governmental rights, m u s t b e com­ posed of the redistributed natural rights of citizens, rights that the citizens m u s t therefore have been capable of possessing in a nonpolitical state of nature. It is hard to d e n y that governments d o , at least sometimes, have (or are capable of having) the de jure author­ ity or right to punish criminals. But if they d o , the a r g u m e n t con­ tinues, persons in a state of nature must also, at least sometimes, have the right to punish wrongdoers. From what o t h e r source could a government have obtained its right? 6

Locke w a s surely correct w h e n h e guessed that this would seem "a very strange doctrine to some m e n " (It, 9). Critics in Locke's o w n day w e r e uncomfortable with the idea of a natural right to punish, a n d contemporary philosophers have been quite solidly against it. We naturally tend to think of the right to punish as something denied private persons and possessed only by special authorities within a carefully defined institutional framework. The "private application of force," at least in matters of punishment, s e e m s both instctuu'onau'y and morally indefensible. But these views are mistaken, according to the natural rights theorist; they are true only of private p u n i s h m e n t in civil society, w h e r e govern­ m e n t m u s t have a "monopoly on force." Perhaps the view that all private p u n i s h m e n t is indefensible arises solely from the fact of our constant exposure to institutionalized forms of punishment. But h o w e v e r that may be, the institutional authority can be ex­ plained only by conceding the existence of a natural executive 7

8

was, of course, extremely influential within the tradition. See Tuck's discussion of Grorius (Natural Rights Theories, especially 62-63). * Hodson, Ethics of Legal Coercion, 117. Grorius, De Jure Praedae Commentarius, 8 (question 7, article 1), 89. Grotius' pur­ pose here is to explore the general justifications for the private use oi force (i.e., in his terms, w h a t "causes justly give rise to private wars"). In discussing "the fourth cause" of just private war, namely wrongdoing, Grotius is led to a defense of the natural executive right. Parallel, but less complete, discussions of these matters occur in De Jure Belli ac Pacts Libri Tres, II, xx. N o t e Locke's claim: "For all force (as has often been said) belongs only to the magistrate, nor ought a n y private persons at any time to u s e force u n l e s s it b e in self-defense against unjust violence" (L, 132). 7

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right. A n d further, w h e n w e really set our minds to the task, the idea of a nonpolitical o r prepolitical right to p u n i s h seems less a n d less countermtuitiye. For the early natural rights theorist, it w a s not at all implausible to point to the prepolitical authority to p u n ­ ish wrongdoers possessed b y G o d a n d b y the fathers of families. And there are ample scriptural g r o u n d s for conducting that God intended all persons to have such authority, as the earthly execu­ tors of His law. But even if w e insist o n a secular foundation for natural rights theory. 9

Is the general right to p u n i s h so counterintuitive? If some great wrorig were committed in another country which re­ fuses to p u n i s h it (perhaps the government is in league with, or is itself, the wrongdoer), w o u l d n ' t it be all right for you to punish the Wrongdoer, to inflict some h a r m o n h i m for his act? 10

i

Is Locke's "very strange doctrine'' defensible after all? My m o ­ tivation for exploring the doctrine further is primarily, of course, a desire to explore and evaluate the resources available to the Lock­ ean theory of rights (combined with m y dissatisfaction with alter­ native accounts of the origin of a just government's right to p u n ­ ish). A n d it is important to see from the start that, properly understood, the idea of a natural right to punish can h a v e a strong intuitive appeal; it can seem h a r d to deny that free a n d equal per­ sons w o u l d h a v e a right (or b e morally at liberty) to p u n i s h in at least certain kinds of states of n a t u r e " (remembering n o w that per­ sons can be in t h e state of nature n o t only before the institution of government, b u t also after its collapse or during the rule of a despotical government). Imagine that, for w h a t e v e r reason, your so­ ciety "dissolved" into disorder a n d chaos. Once again in your nat* Grotius, for instance, cites Judges 15 (Samson's punishment of the Philistines) and Genesis 9.6 ("Whoso sheddeth man's blood, by man shall his blood be shed") i s supporting a natural executive right (Dc Jure Praedae Ccnrnnenumus. 90). Locke follows Grotius in citing Genesis 9.6 (along with Genesis 4.14) for support (11,11). Neither author cites those passages that seem to support the view that only God has tiie right to punish: Romans 12.19 ("Vengeance is' mine, I will repay, says the Lord") or Genesis 4.15 ('Tf anyone slays Cain, vengeance shall be taken on him sevenfold"). See Pangle, Republicanism, 303. Nozick, Anarchy, 137. The "wouldn't it be all right" formulation here suggests a liberty to punish, rather than a full claim right to d o so. A s w e will see, however, Locke disagrees with Nozick about the rights of citizens in political societies to pun­ ish alien citizens. Locke's claims (and mine) concern only the rights of those in certain kinds of state of nature relations (see below). " Some take such a denial to be "implausible on its face" (Sayward, "Anar­ chism," 110). m

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ural state, unprotected by the rule of law, you witness a man brutally robbing and murdering a defenseless victim. If it were within your p o w e r to do so, would you not feel justified in seeing to it that the murderer suffered for his crime? Would there b e any­ thing morally objectionable in your inflidting on h i m some harm, either to save others from his atrocities or (supposing you s o m e how k n o w that h e will commit no more) simply as a response to what he did? Would not anyone in that state of nature have a right to punish him for his (moral) crime? If you are in any way tempted to answer " y e s , " there are obvious reasons to think more about the executive right. But even if your inclination is to say " n o , " the­ oretical considerations m a y persuade you to excise this belief from your set of "considered j u d g m e n t s " about morality. A n d if you eventually accept the idea that there is such a right, as w e will see, you will b e hard pressed to reject the natural rights tradition's ac­ count of the origin of the state's right to punish. N o w I would not w a n t to appear to be resting m u c h weight on (as yet) undefended intuitions. They are, at best, only a very pro­ visional starting point. If there are s o u n d theoretical g r o u n d s for rejecting the idea of a natural right to punish, then w e must, of course, discount intuitions to the contrary. And contemporary philosophers have certainly argued that there are such theoretical grounds. Their criticisms of the natural right to p u n i s h can, I think, fairly b e reduced to three main claims: (1) T h e very idea of a natural right to p u n i s h involves a fundamental confusion, or even incoherence; (2) O n e cannot, in any event, give a satisfactory account of the origin and nature of the natural right to punish; and (3) If w e begin with a private right of punishment, w e can give no persuasive account of h o w a just government can come to h a v e an exclusive moral right to p u n i s h wrongdoers. In addition, it may seem that even those w h o share m y intui­ tions in the case just described will probably also have intuitions about p u n i s h m e n t that Locke and the natural rights tradition w o u l d seem to w a n t to reject—for instance, that private citizens even in a just state would be justified in purushing a criminal w h o s e cleverness m a d e legal punishment impossible, or that pri­ vate citizens in o n e country might justifiably punish a criminal in another, if both governments refuse to p u n i s h the wrongdoer. I will try to argue h e r e that none of the objections mentioned above is convincing a n d that there is good reason to take seriously the idea of a natural right to punish. I begin this task by examining 126

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the case for a natural executive right as it was presented b y its most famous a d v o c a t e . :

12

3.2. Locke's Case In chapter 2 of t h e Second Treatise, Locke argues that in the state of nature all persons enjoy a n equal right to punish violators of the law of nature, that is, those w h o " i n v a d e " the rights of others: "The execution of t h e law of nature is in that state [i.e., the state of nature], p u t into' every man's h a n d s , whereby everyone has a right to p u n i s h the transgressors of that law to s u c h a degree, as may hinder its violation" (II, 7). While the exercise/pf this right in a state of nature is necessary to give force,to>natural law, it is also a great inconvenience. Be­ cause people will tend to be partial toward themselves a n d their friends, they;.'ivill n o t always properly u s e this right to punish. They may punjsh .excessively (or w h e r e there is n o guilt at all), which will p r o m p t a^ similar response from the ones punished, and "confusion a n d disorder" (or a state of war) will follow (II, 13). What is n e e d e d , of course, is a common judge standing over them all, and authorized to decide the proper remedy for conflicts be­ tween them. * If each surrenders the right to punish to such a judge, each will profit from the greater security a n d consistency of decision that will result. This, as w e have seen, is one of Locke's main arguments for the desirability of civil society, his main re­ sponse to t h e anarchist. Life u n d e r government is preferable to life in a state of nature at least largely because of the improved proce­ dures for the rightful p u n i s h m e n t of criminals. Indeed, the trans­ fer of the executive right from citizen to common judge (i.e., the state) is so importanjt to Locke's justification of civil society t h a t h e at times seems to define political society in terms of this transfer having occurred (U, 19, 91). The citizens' executive rights, once entrusted to government, become the executive power of the state. Locke's defense of a natural executive right, then, lies at the very heart of his political philosophy. For this reason, if n o other,

13

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n

For a concise recent summary of Locke's views o n punishment, see Tully, "Po­ litical Freedom," 517-18. Locke calls this right the "executive power of the law of nature" (II, 89). This view—for example, that the partiality of each in judging for self is what makes government necessary—was already present in Locke's early Two Tracts. See First Tract, 137-38. Ashcraft characterizes Locke's defense of the executive right (and of the pos­ sibility of others assisting in enforcing natural law) as "the w h o l e point of the Sec13

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we should be careful to understand his claims. First, Locke is not claiming that w e in a state of nature have a n uruimited right to treat a criminal however we please. While "every man in the state of nature has a power to kill a m u r d e r e r " (IT, 11), "lesser breaches" of the law of nature m u s t be punished less severely (II, 1 2 ) . The executive right is a right "only t o retribute to h i m , so far as calm reason a n d conscience dictates, w h a t is proportionate to his trans­ gression, which is so much as may serve for reparation a n d re­ straint" (II, 8 ) . Locke seems unconcerned about having here iden­ tified the lirnits to rightful p u n i s h m e n t at once in b o t h retributivist terms ("retribute" w h a t is "proportionate" to the crime) a n d consequentialist terms (what is sufficient for "restraint"). During the remainder of the chapter, Locke talks almost exclusively like a conseouentialist; b u t later in the text, retributivist language seems to d o m i n a t e . Similarly, while we have seen Locke's claim (in the Second Letter) that punishment, to be justified, m u s t " b e directly useful for the procuring some greater good," in other portions of the same work he talks like a p u r e retributivist. As w e have noted earlier, of course, Locke's rule-consequentialism allows him to blend deontological and consequentialist notions in his theory with reasonable ease. It may be, of course, that Locke is simply (and n o t very carefully) following the lead of Grotius, w h o main­ tained that while p u n i s h m e n t should "fit the crime" as far as pos­ sible, p u n i s h m e n t that accomplishes no substantial good end (in terms of future consequences) should b e avoided as u n j u s t . But we should notice that w h e n Locke employs the right to p u n i s h in the arguments of the Treatises, he does so as if it is a right to p u n i s h all wrongdoing, not .as if it is a right to p u n i s h only w h e n punish­ m e n t can b e s h o w n to b e directly useful. Second, w e should be sure that w e remember w h a t Locke 16

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and Treatise," since it is this position that legitimizes popular resistance against the king {Revolutionary Politics, 332). I would put the point slightly differently. Locke cannot give up his defense of the natural executive right without surrendering as well the right of the people to punish a deposed king. As in his talk of crimes "which deserve death" (for example, II, 23). See also II, 11 and H, 87: "Man . . . hath by nature a power . . . to judge of, and punish the breaches of (the law of n a t u r e ] . . . as he is persuaded the offense deserves." These passages are hard to square with Farrell's claim that Locke "neither suggests nor n e e d s " the idea that punishment should be proportionate to desert ("Punishment Without the State," 452). Farrell's Locke seems to be a pure consequentialist, con­ trary to my earlier suggestions concerning Locke's apparent willingness to argue from both deontological and consequentialist viewpoints. For example, Second letter Concerning Toleration, 71, 105. De Jure Praedae Commentarius, 93-104; De Jure Belli ac Pads, II, xx. 16

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means by saying that each person possesses the executive right in a state of nature. The state of nature is that state in which prepolit­ ical persons existed; b u t it is also the state into which each of u s i s born today, a n d in w h i c h w e remain until w e consent to join some commonwealth; it is t h e state to which w e return w h e n our polit­ ical society dissolves,(as in times of civil war), a n d (perhaps also) when our political leaders overstep the b o u n d s of their rightful authority (i.e., cases.of tyranny); it is the state in which all political rulers stand with respect to one another, and in which all citizens of one state stand w i t h respect to citizens of another s t a t e . " Third, Locke's position is not really that all persons in the state of nature with respect to others have the natural right to p u n i s h those others for their crimes. Children (i.e., those below the "age of reason") d o n o t possess this executive right in spite of being in the state of natbre with respect to all persons (and presumably t h e same is true of idiots, the insane, warmakers, a n d any other classes of " p e r s o n s " w h o are not full rightholders i n Locke's view). Perhaps more, important, Locke believes that w h e n w e join together to form a political society w e must be understood not only to be agreeing to allow a common judge to exercise our ex­ ecutive rights in conflicts b e t w e e n u s . We must also b e understood to entrust to government the right to p u n i s h transgressors of nat­ ural law w h o are not members of our commonwealth. That right, thus entrusted, becomes the state's federative power (II, 145-48). As members of a legitimate civil society, then, we have n o right to punish anyone. O u r natural right to p u n i s h certain persons (those who become our fellow citizens) is entrusted to government as its executive power, while the natural right to p u n i s h all other per­ sons is similarly entrusted as the government's federative p o w e r . In short, we have a natural right to p u n i s h those w h o breach nat­ ural law only after w e reach t h e age of reason (and while w e re­ main committed to t h e law of reason), and during those times when w e are n o t m e m b e r s of some legitimate political society. 20

We have seen o n e reason w h y Locke was so eager to defend the natural right to p u n i s h : it is difficult to understand h o w an artifi­ cial body like a state could possess the moral authority to punish w

A person (A) is in the state of nature with respect to another (B) if and only if A has not voluntarily agreed to join (or is no longer a member of) a legitimate political community o f which B is a member. For defense of and elaboration on this reading, see m y "Locke's State of Nature," 4 4 9 - 5 5 . Locke earlier calls these two powers "the power of making laws" and "the power of war and peace" (H, 88), although the first of these must also incorporate some of the legislative power. 1 0

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unless it received this authority from persons w h o possessed it naturally. But surely, it seems reasonable to respond, a govern­ m e n t might receive the right to p u n i s h from citizens without it following that each person, prior to becoming a citizen, had a right to punish every wrongdoer. Locke's first reply to such concerns— that the state of nature is a state of equal rights, so that if anyone has a right to punish another, everyone must have that same right (II, 7)—-will not suffice. For mightn't it b e the case that w e all equally possess a more limited right to punish, say, the right to punish criminals w h o victimize us (i.e., a right to punish held only by the victim of a crime, not all persons)? There would then be equal natural rights, b u t n o general right to p u n i s h just any viola­ tor of natural law; and by entrusting these more limited rights to government, our governors would still receive the right to punish any w h o violate t h e rights of a citizen of the commonwealth. Locke's response to this proposal has two parts. To the sugges­ tion that the victim has special rights against the criminal, Locke agrees (as w e will see). But the victim cannot hold the sole right to p u n i s h a wrongdoer, for the victim is not the only o n e w h o suffers from a crime. In a sense, Locke claims, hurnankind as a whole is the victim of every crime, every offense is "a trespass against the whole species" (TJ, 8). Those w h o violate the rights of others cast aside reason as a guide to their actions, making themselves a dan­ ger to all persons. Every person has a stake in protecting self and others from future attacks, so every person shares in the right to p u n i s h the criminal. These claims may seem extravagant. In w h a t way can a harm­ less petty thief (or even a local bully) be seen as a threat to all h u m a n k i n d ? The idea that someone w h o commits any kind of w r o n g against another is therefore liable to do all m a n n e r of im­ moral things to people far and wide s e e m s a bit far-fetched. O n the other h a n d , if your neighbor (the victim of a violent assault, say) had sole right to punish a sadistic attacker, a n d chose to be lenient, you might well feel that the "public element" of the crime gave you a right to try to more effectively deter that criminal from future attacks. Much more needs to be said about Locke's claim 21

1 1

There is, of course, a clear sense in which the state for Locke is perfectly "nat­ ural"—that is, there is every reason to suppose that persons (acting "naturally") will to fact create states where they do not exist (indeed, they will be "driven" into them) (see Seliger, liberal Politics, 221-23). But the moral authority of states is for Locke created or artificial, not natural. Against Filmer, Locke argues that "govern­ ments must be left again to the old way of being made by contrivance and the consent of men" (I, 6). 130

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that every crime is against all persons, a n d I will return to it later. It was, in fact, a popular argument in Locke's day (Grotius a n d many others u s e d it), a n d it continues to find supporters t o d a y . No one (but the .most eager disciple of Locke) would b e per­ suaded by the considerations t h u s far advanced that there is a nat­ ural executive rights or that we can only explain a government's right to p u n i s h in terms of a transfer of the executive right. Locke's insistence that God,must have intended each person to b e execu­ tor of His 'law bbvipusly requires further support. And there are, of course, o t h e r ' a r g u m e n t s in t h e Second Treatise designed to pro­ vide this support. While only one of these is prominent in the text, it might be reasoriabje to ascribe to him two others as well. 12

(1) Locke's language (in II, 7) might suggest the following view (although Locke n o w h e r e in the Treatises explicitly states it): the ideas of duty, a n d right (and, more generally, of morality) imply the exjstence.of law^'But there can only b e a real law w h e r e there are sanctions attached to disobedience, where violations of the law are rightfully p u n i s h e d ("where the laws cannot be executed, it is all one as if, there yteie n o l a w s " [H, 219]). If, then, the law of nature is to b e a genuine law (and the duties and rights it defines genuine), t h e law m u s t rightly b e backed u p by physical force. Since it is a gentune law, bmding even in our natural state, Locke supposes, s o m e o n e in the state of nature must have the right to enforce natural law (and if someone has that right, everyone m u s t have it, as w e have seen). T h e internal sanction of the pains of conscience, which (sometimes) accompanies wrongdoing, is insuf­ ficient to constitute real enforcement of the law. While little of this is stated in the Treatises, Locke does (as we saw in 1.2) say such things in the Essay: What duty is, cannot be understood without a law; nor a law be k n o w n or supposed without a lawmaker, or without re­ ward a n d puxushment. . . . Since it would be utterly in vain to suppose a rule set to the free actions of men, without an­ nexing to it some enforcement of good and evil to determine his will, w e must, wherever w e s u p p o s e a law, s u p p o s e also some r e w a r d or p u n i s h m e n t annexed to that law. (E, 1.2.12, Z.2S.6) 1

E

For instance, ] . Roger Lee argues that every crime "undercuts the rational ex­ pectation framework" among citizens in political society ("Arrest and Punishment of Criminals," 96). Presumably, this would hold true as well in some reasonably civilized, but nonpolirkal, society in a state of nature. 131

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The very idea of morality (and of law), Locke seems to be daiming, implies a natural executive right. (2) It is d e a r from the text that Locke believes there is a strong connection between the executive right a n d the right that w e have to preserve ourselves (and others). The idea that a right to p u n i s h is s o m e h o w implied b y our right to defend ourselves (or others) w a s neither n e w with Locke nor confined to philosophers in ear­ lier centuries. Grotius, in the earliest systematic defense of a nat­ ural right to p u n i s h , argued in this w a y , as do m a n y of the most recent such defenses. The idea they share, presumably, is that insofar as p u n i s h m e n t can serve as a means for deterring future crime (both crime committed by the crirninal punished a n d by oth­ ers, suitably impressed by the example of that punishment), it is a w a y of defending ourselves against aggression by others. If we have a right to defend ourselves (and w h o would d e n y that?), then certainly w e have a right to employ one means of self-defense, namely, p u n i s h m e n t of criminals. 23

24

25

It might b e natural to respond to the line of argument suggested above as w e earlier responded to the d a i m that every crime threat­ ens all persons. Surely it is not true that our right of self-defense could justify punishing just any violator of natural law (as the ex­ ecutive right allows), for some criminals seem to pose n o real threat to our safety at all. Simple considerations of self-defense are insuffident to derive a general right to punish. Locke seems sensitive to this worry, for his position is more complicated than the o n e just summarized. H e in fact distin­ guishes between two separate aspects of our executive right. Two legitimate aims of p u n i s h m e n t , remember, are "reparation a n d re­ straint"; these two aims define distinct rights. All p e r s o n s have the natural right to p u n i s h transgressors of natural law for the pur­ pose of restraining (deterring) criminals; this right, however, de3 3

Strauss has written as if this is Locke's only (or at least central) defense of the executive right (Natural Right, 222). The text, of course, does not support such an extravagant claim (if, indeed, Strauss intended to make it). But there are also rea­ sons, as w e will see, to doubt that Locke had any such argument in mind. De Jure Praedae Commentarius, 91: "The causes for the infliction of punishment are natural, and derived from that precept which w e have called the First Law." (The First Law is: "It shall be permissible to defend (one's o w n ] life and to shun that which threatens to prove injurious" (369].) See, for example, Rothbard, Ethics of Liberty, 89 ("All rights of punishment de­ rive from the victim's right of self-defense"); and Farrell, "Punishment Without the State," 443-44. Farrell's case is actually (like Locke's) the more complicated view that self-defense is justified by the same principle that justifies defense of other innocents, and hence punishment. 1 4

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rives not from our right of self-defense, b u t from our right "of pre* serving all m a n k i n d . " From the narrower right of self-defense (or self-preservation) that each of u s possesses, Locke thinks, w e de­ rive only a right t o take reparation from a criminal, w h e n w e have been victims: The damnified person has'this power of appropriating to him­ self the g o o d s or services of the offender, by right of self-pres­ ervation, as everyi m a n has a power to punish the crime, to prevent its being committed again, b y the right h e has of pre­ serving all mankind. (II, l l ) 2 6

Locke is not, then, committed to holding that considerations of self-defense justify m y punishing just any criminal in a state of nature; such considerations d o not, strictly speaking for Locke, justify p u n i s h m e n t at all, b u t only the exacting of compensation. Whether this claim is defensible or not, the important point for our purposes is that the executive right is implied, according to Locke (and, more plausibly, I think), by the more general right to pre­ serve persons- ! (3) We arrive finally at Locke's most prominently presented ar­ gument for the executive right. Unless there is a natural right to punish, Locke maintains, the ruler (government) of a state could never rightfully p u n i s h a n alien w h o commits a crime in that state. Since rulers clearly can rightfully p u n i s h alien criminals w h e n they break the laws of the countries they are visiting, there must be a natural executive right (II, 9). Locke's flunking here r u n s as fol­ lows: aliens are n o t b o u n d b y the laws of the states they visit; they have not consented to t h e authority of those states' governments. Aliens remain in t h e state of n a t u r e with respect to those govern­ ments. If that is true, however, the government can only rightfully punish aliens if it could rightfully punish them in the state of na­ ture (i.e., if the citizens w h o gave the government its rights could have p u n i s h e d t h e m in the state of nature). Since most of us be­ lieve the government can legitimately punish in such cases, w e must accept t h e natural executive right as the only possible expla­ nation of this fact. In punishing aliens, the state is merely doing what its citizens w o u l d have been entitled to do, h a d they not left a

Note Locke's apparent claim that this second right cannot be transferred to civil authorities, so that they might remit the requirement of compensation (H, II). Locke is, I think, better read here as saying that the transfer of this right is not to be presumed to b e part of any contract of government (than as saying that the right literally cannot be transferred). 133

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the state of nature by entrusting their executive rights to their gov­ ernment. 27

3.3, Replies We have n o w seen Locke's arguments for a natural right to p u n ­ ish. Let m e examine t h e m in turn: (1) Take first Locke's apparent argument that w e cannot under­ stand the idea of duty (or moral ideas generally) without suppos­ ing a natural right to enforce the duty (by punishing offenders). The a r g u m e n t really proceeds in three stages: (a)

Moral duty implies the existence of law.

(b)

True law requires the likely application of rightful sanc­ tions for breach of the law.

(c)

The only possible sanction for natural (moral) law that is likely to be applied at all times is p u n i s h m e n t by other people. For this punishment to be rightful, people m u s t have a right to p u n i s h wrongdoers.

Even granting Locke the truth of (a) a n d (b) (and, of course, many of Locke's contemporaries would have d o n e so), the truth of (c), the crucial claim in the argument, still seems doubtful. Why is an appropriate sanction for natural law not the rightful sanction of divine p u n i s h m e n t (or reward)? That God backs u p natural law with sanctions "of infinite weight a n d duration" (E, 2.28.8) is surely sufficient for it to count as "true law"; indeed, this seems to be precisely w h a t Locke h a d in mind in the passages from the Essay quoted earlier. There is n o need for the sanctions of a general executive right in order to explain the possibility of moral duty 7 7

This argument will not, of course, convince anarchists or any w h o doubt that the state can legitimately punish aliens. Let m e add to the above explanation of Locke's case for the executive right a purely historical observation. In his notes to the argument just considered, Laslett comments that Locke's language announced "that his doctrine of punishment was, or was intended by him to be, a novelty" (Lock*, Tzve Treatises of Covemment, 313n; on this point, see also Von Leyden, "Locke's Strange Doctrine"). Philosophers and political scientists have, by and large, accepted at least Locke's arguments for his "strange doctrine" as a novelty (see, for instance, Parry, John Locke, 58; an exception to this rule is Tuck, Natural Rights Theories. 6 2 - 6 3 , 79). But it is worth noting that even Locke's last, central argument (concerning the punishment of aliens) was used previously by Grotius (De jure Praedae Commentarius, 92). And, as the earlier portions of my discussion have suggested, much of the rest of Locke's position seems also to have been bor­ rowed from Grotius. Locke's original contribution on this subject lay not so much in the formulation or defense of the executive right, but rather in h i s systematic presentation of its importance for political philosophy. 134

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tand natural law), a n d Locke seems (rightly) not to insist t h a t there is such a n e e d in the Treatises. What Locke does say in the Second Treatise is that " t h e law of nature would, as all other laws that concern m e n in this world, be in vain, if there w e r e nobody that in the state of n a t u r e h a d a power to execute that l a w " (II, 7). While, as w e have seen (1.2), Locke is not holding that the sanction of the law is w h a t makes it obligatory, h e does hold that the law has no point without sanc­ tions (e.g., E, 2,28.6; ELN, 173). A n d G o d surely wants His law to have a point. But God's sanctions are not sufficient to compel widespread obedience, so the law of nature will not b e effectively enforced in t h e state of nature. What w e need is sanctions imme­ diately applied in this life, not the next. N o w Locke undoubtedly means all of this, b u t h e cannot mean to conclude that there can be no "real" law of nature or true morality unless people enforce that law in the state of nature. For in the Essay, immediately after insisting t h a t law requires sanctions, a n d that in the case of moral (divine) law the relevant sanctions are those applied by God, Locke comments that " t h e penalties that attend the breach of God's laws some, nay p e r h a p s most men, seldom seriously reflect on: and amongst t h o s e t h a t do, m a n y , whilst they break t h e law, entertain thoughts of future reconciliation" (E, 2.28.12). This ob­ servation that God's sanctions are insufficient to compel obedience does not lead Locke to doubt that the law of nature is a true law; quite t h e contrary, i . The ineffectiveness of God's sanctions does not seem to force us to choose b e t w e e n accepting the executive right or rejecting natu­ ral law, on Locke's view. What Locke is thinking, I believe, is that where a (good) law is n o t being obeyed by those b o u n d t o d o so, those to w h o m the laW applies have a d u t y (and right) to assist in its enforcement. The';only apparent basis for such a claim in the case of natural law, however, would b e that since natural law pro­ motes t h e well-being of those t o w h o m it applies, our general duty (and right) to help preserve mankind requires (and permits) that we enforce that law.,This, of course, brings u s to the second of Locke's arguments for the executive right, a n d forces the conclu­ sion that the first a r g u m e n t w e considered neither h a s a n y inde­ pendent force (as a defense of the executive right) nor was in­ tended by Locke to have any. (2) I turn n o w to Locke's second argument for the executive right: that it i s implied b y our right (and duty) t o preserve all man­ kind. This right, as w e saw in 2.1, is for Locke a particularly "fun135

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damental" right, a trivial (mandatory) consequence of the funda­ mental law of nature. So let u s accept it for the moment. Does a right to preserve mankind imply a natural executive right? First, h o w are w e t o understand t h e idea of a right t o preserve mankind? Presumably, like the right of self-defense, this right could b e taken at least t w o ways. Construed narrowly, the right to preserve others might b e viewed as a right only to help defend them when they are actually being attacked by others. More broadly, the right t o preserve others could b e taken t o include n o t only the right to defend them, but also the right to protect t h e m in other w a y s , such as by creating a "deterrent climate" or by pre­ emptive attacks against those whose presence endangers t h e m . It is difficult to see h o w the former of these versions of the right t o preserve m a n k i n d could naturally yield a right t o p u n i s h , for p u n i s h m e n t of a criminal involves far more than defending some­ one against attack; punishment begins w h e r e defense leaves off. Much more than the narrow right to preserve will be required to derive a right to p u n i s h . What about the broader version of the right? ft would clearly justify more than simply p u n i s h m e n t , since preemptive attacks o n the dangerous might well include harming those w h o have not yet broken the natural (moral) law (in order to prevent their doing so in the future). But Locke's remarks else­ where suggest that h e might well be comfortable with this sort of consequence: people "have n o t only a right to get o u t of [tyranny], but to prevent it" (II, 220; m y emphasis). A n d while the broad ver­ sion of our natural right to preserve mankind justifies more than punishment, it appears also to justify punishment. It will explain our right to h a r m in response to wrongdoing, since doing this will help to preserve persons (by virtue of having, in m a n y instances, beneficial deterrent effects). Here, then, w e have a first, initially convincing Lockean argu­ ment for the natural executive right, although in Locke this argu­ ment is ultimately tied (as w e saw in 1.5) to rule-consequentialist reasoning about the content of God's will for humankind. Each person is t h u s e m p o w e r e d by God to be an executor of His law. This argument, of course, will not satisfy secular concerns about the right to punish without independent derivation of the right to preserve h u m a n k i n d (a derivation that may well be possible). But w h e t h e r presented in its religious or secular form, this a r g u m e n t simply cannot account directly for all of what Locke wants in a natural executive right. Locke seems most often to w a n t to defend a right to p u n i s h any wrongdoer, not a right to p u n i s h that is con136

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ditional o n the direct usefulness of particular acts of punishing. But it is manifestly false that pu^ushment of wrongdoers will al­ ways be causally related to effective deterrence. Some p u n i s h m e n t neither advances nor can be reasonably believed to advance the preservation of mankind. Only by further employment of ruleconsequentialist reasoning (i.e., by arguing that p u n i s h m e n t tends to deter crime) will a Lockean be able to draw from the right to preserve mankind a right to punish every breach of natural law. And the appeal of this style of reasoning is clearly limited. (3) N o w for Locke's third a n d most prominent argument: that we cannot explain the rightful p u n i s h m e n t of aliens unless there is a natural executive right. What is striking about Locke's promi­ nent presentation of this argument is his apparently total failure to see h o w badly it fits the overall position h e defends in the Second Treatise (indeed, it looks as if Locke may have simply taken the argument from Grotius without seriously considering its implica­ tions). For there seems to be an extremely simple refutation of the argument available, o n e that can be found in Locke's o w n text. Locke is well k n o w n for his theory of tacit consent, according to which any person that has " a n y possession or enjoyment of any part of the dominions of any government" can be taken to have consented to the authority of that government, " w h e t h e r this his possession b e of land, to h i m and his heirs forever, or a lodging only for a week; or w h e t h e r it be barely travelling freely on the highway; a n d In effect, it reaches as far as the very being of any­ one within the territories of that government" (II, 119). The implication of these passages is clear: aliens, merely by (freely) entering the territories of the state, can be taken to consent to its authority over them. These aliens, w e might say, have au­ thorized the state to punish them should they violate its laws. We can, then, explain the government's right to p u n i s h aliens entirely in terms of Locke's o w n account of the tacit agreement between government a n d alien. N o reference to a natural executive right seems necessary. The state's laws do "reach" (i.e., bind) aliens, for they are not in a state of nature with respect to the state once they enter its territories. They are "temporary m e m b e r s " of the commonwealth, like any resident or visitor w h o has not expressly consented to b e a full member (II, 121-22). 28

Even m o r e embarrassing for Locke is the following question: if M

This seems to be what Murphy has in mind ("Paradox," 267). Farrell also notes the availability of this argument to Locke ("Punishment Without the State," 451). 137

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we can explain the state's right to punish aliens without reference to a natural executive right, can w e not similarly explain its right to punish citizens? Instead of starting with the assumption that cit­ izens have a right to punish everyone else, which they entrust to government, w h y not assume that citizens begin with only a right to control their o w n lives (as it were, they h a v e a right only to " p u n i s h " themselves). Citizens then entrust a portion of this nat­ ural right of self-government to the state, authorizing government to punish t h e m (i.e., control their lives) for violations of its laws. The n e t result of all citizens so authorizing government, of course, would b e that the government had the right to p u n i s h all citizens. This is the conclusion that Locke w a n t s to reach; but, contrary to Locke's suggestions, it seems possible to reach it without appeal­ ing to a natural executive right. We can explain the right of gov­ ernments to p u n i s h both citizens a n d aliens, without having to suppose that any "natural m a n " ever h a d the right to p u n i s h an­ other. A n d w e can explain it in a way that is consistent with Locke's desire to show that all governmental rights are derived (by transfer in trust) from the citizens of the state. This alteration in Locke's program seems even more desirable w h e n w e remember that if the government's right to p u n i s h is merely its citizens' executive rights, suitably transferred, the gove r n m e n f s p o w e r to p u n i s h m u s t be limited to cases w h e r e the law of nature has been transgressed. This, after all, w a s all that the natural executive right allowed. A n d while m u c h of the behavior that a state will w a n t to make criminal surely violates natural law, other clearly does not—-for instance, violation of at least some tax laws, d r u g a n d " m o r a l s " laws, traffic a n d parking laws, a n d many other regulatory statutes hardly s e e m s naturally immoral. H o w can w e explain the g o v e r n m e n t s right to punish in such areas? It is easy to reply that in addition to giving the state the right to p u n ­ ish violations of natural law, citizens also give u p some further portion of their right to control their lives (justifying p u n i s h m e n t in these additional areas). This seems to be w h a t Locke has in mind (e.g., II, 128-30). But surely, if w e m u s t appeal to transfers of our natural right of self-government to explain parts of the state's right to punish, it would b e theoretically more elegant to explain all of its right to punish in these terms. We would also thus spare ourselves the effort of defending Locke's "strange doctrine" 29

v

Contrary to Macpherson's apparent claim that Lockean government can d o no more than enforce natural law {Possessive Individualism, 218). 138

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of the executive right; telling Locke's story entirely in terms of cit­ izens entrusting t o government portions of their rights t o govern themselves. What is w r o n g w i t h this simpler, more elegant, revised Lockean account I have just outlined? Why did Locke not choose this course, with all of its apparent advantages? We might speculate about his reasons. First, Locke seems to have confusedly supposed that if all governmental rights come from the citizens, and the gov­ ernment has the right to punish everyone, then some citizen must have h a d the (entire) right to p u n i s h everyone. A n d if any citizen had it, everyone m u s t have h a d it. H e seems not to have consid­ ered that the government's right to punish might be composed, piecemeal, from the m a n y and m u c h more limited rights of citi­ zens to " p u n i s h " themselves only. Second, there seems to be a serious problem, o n our revised account, about capital punish­ ment. N o person, according to Locke, has the moral right to com­ mit suicide (nor is this morally permissible) (see above, 1.5). How, then, could government come to h a v e the right to p u n i s h u s with death, if this right m u s t have come from each citizen? The natu­ ral executive right, of course, includes the right to p u n i s h others with death ( w h e r e aippropriate), n o t ourselves. It might t h u s be supposed to b e transferred to government, justifying capital pun­ ishment, without Locke having to defend a right to commit sui­ cide. I will say about this problem only that there are quite general difficulties in Locke .about capital punishment, of which this is only o n e . Perhaps ; the proper resolution of them, within a broadly Lockean framework, will require the a b a n d o n m e n t of Locke's prohibition o n suicide (which seems to m e , o n indepen­ dent grounds, a goocj idea—see 1.5). Third, Locke may have been concerned about the revised account's apparent inability to ground a federative right of government. Insofar as the federative right includes a right to punish noncirizens, it is unclear h o w this could in any w a y be derived from citizens' rights over themselves only. ' There is, I think, a final (and m u c h m o r e interesting) problem 30

31

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;

* This seems to be roughly the solution proposed by Altham (as a remedy to problems in Nozick, not in Locke). Nobody has a right to punish others in a state of nature; the government's right arises from individual contracts ("Reflections on the State of Nature," 140-41). See Beccaria's related difficulties i n deriving the state's right to punish crimes with death from the individual transfer of rights in a contract of government (On Crimes ami Punishments, 45-52).. On these problems, see Dunn, Political Thought, 126-27. 5 1

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with the revised account proposed above, one of which Locke may well have been aware (as I argue in 3.5). The revised account can succeed only if there is n o natural right to p u n i s h . M y remarks t h u s far h a v e suggested only that the revised account obviates the n e e d to defend a natural executive right, b u t the point m u s t be put m o r e strongly. It is not just that a defense of our revised account saves u s the trouble of proving Locke's "strange doctrine"; the re­ vised account cannot b e defended, if there is a right of all t o p u n ­ ish. I will elaborate on this point more fully and explain the short­ comings of the (apparently superior) revised account below in 3.5. 3.4. The Coherence of Locke's Position The problem is not, it may be claimed, merely that Locke's argu­ m e n t s for the natural executive right are weak. What h e is arguing for is a position that makes no clear sense. This objection to Locke has taken a variety of forms. In its first (Bentharnic) form, it is an objection we have touched on already (in 2.5); it challenges not specifically the intelligibility of claims that there is a natural exec­ utive right, but rather the intelligibility of any defense of any nat­ ural right. The concept of a right, it is claimed, is o n e of enormous complexity, presupposing an intricate system of institutional rules, for which there could be no analogue in a nonpolitical state of nature. A related, but milder, form of natural right skepticism attacks only the idea of private natural rights. Green, remember, allowed that persons have natural rights, b u t only as members of some (not necessarily political) community. Green (following Hegel) specifically attacks the idea of a natural executive right as the in­ coherent notion of a purely private natural right, a "right of pri­ vate vengeance." This would be a right neither "derived from so­ ciety nor regulated by reference to social good." Since "all right is public," there can be no natural right to p u n i s h . The stronger (Bentharnic) form of skepticism a n d the milder skepticism of Green have this m u c h in common: they both centrally employ the idea that the concept of a right severely limits the possible content of a n y theory of natural rights. I have already attempted to reply to these versions of natural right skepticism (above in 2.5). I mention these forms of general 33

3 3

Green, Lectures on the Principles of Political Obligation, section 178. 140

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skepticism here only because they both point toward much more specific worries abou^ a natural right to punish. Regardless of what limits the, concept of a right may place on natural rights the­ ory, the concept of p u n i s h m e n t , at least, seems to centrally in­ volve conventional orj institutional rules by which it is adminis­ tered, a n d s o m e notion of a shared community response to wrongdoing (these d a i m s , of course, are simple corollaries of the more general: skepticisms I have associated with Bentham and Green). Even, then, if simple conceptual analysis could not dis­ pose of natural rights (theories generally, p e r h a p s it can dispose of one particular natural right—the right of all to punish. Several contemporary philosophical treatments of the natural right to p u n i s h h a v e ,'taken this route. Jeffrie M u r p h y has argued that 1

The notion of a natural right to punish, in a sense of " p u n i s h " strong e n o u g h to count as an entrusted governmental right, is unintelligible. It is n o t simply that such punishing is ineffi­ cient; it is conceptually impossible. 34

!"

And, more recently, G-erald Postema has claimed that The right to p u n i s h i . . cannot rightly be said to exist prior to the establishment of an institutional arrangement for punish­ ment. This is, because p u n i s h m e n t is conceptually linked to the notion of a public or community response to wrong-do­ ing. 35

These charges seem both serious and reasonable. H o w (if at all) can a defender of the natural executive right (and of the intuitions expressed in 3.1) reply? Let u s start to answer this question b y trying to u n d e r s t a n d exactly w h a t it is about t h e natural right to punish that renders claims for its existence "unintelligible." Critics seem to emphasize t h e following points: (a)

The natural executive right would be a purely private right to p u n i s h ; but p u n i s h m e n t can only (logically) be

* "Paradox," 257. "Nozick on Liberty," 326. Similarly, David Hoekema maintains that "the right to punish must in this respect be like the right to vote, or the right to due process: it is a right w h i c h has n o application—whose assertion d o e s not even make sense— apart from the social institutions which confer it" ("Right to Punish," 240). 35

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inflicted by an agent of a corrunuiiity, in a of t h e community's response to c r i m e .

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(b)

The natural executive right would be merely a right to inflict h a r m o n others; p u n i s h m e n t conceptually involves m u c h m o r e than t h i s . 37

(c)

The natural executive right would be a right exercised by p e r s o n s w h o h a d n o authority to punish; punishment, to distinguish it from other applications of force, m u s t be understood to involve both authoritative application of certain rules, a n d authoritative administration of sanc­ tions. 38

In evaluating these conceptual claims, w e m u s t try to remember the constant dangers faced in making t h e m — t h e dangers of pre­ tending that a concept is far sharper than it really is, a n d of losing sight, in t h e process of conceptual analysis, of w h a t our interests in a thesis really a r e (in this case, our interest in understanding w h a t kind of r e s p o n s e to wrongdoing is naturally defensible, and w h a t changes from our natural condition are necessary to make rightful p u n i s h m e n t by the state). The first kind of danger seems to wait for claim (a) above—the claim that infliction of harm cannot count as p u n i s h m e n t unless it is a community response to wrong­ doing. Perhaps most familiar cases of p u n i s h m e n t satisfy this con­ dition. But to refuse on conceptual g r o u n d s to count as "punish39

3 6

Postema, "Nozick o n Liberty," 326. Recall Green's arguments. Ibid., 325; Murphy, "Paradox," 261. Ibid., 261-64; Postema, "Nozick on Liberty," 325-26. I assume that this is part of what Hoekema has in mind as well. Postema also stresses the requirement that the right to punish b e a full claim right (i.e., a right correlated with an obligation on others to refrain from interference). I comment o n this matter below in 3.5. Both Murphy and Postema present layered arguments against the natural executive right. Both reject it on conceptual grounds; but both suggest that more is wrong as well. Murphy argues against the right on conceptual grounds, and also claims that it could not, in any event, be used by Locke within his theory in the way Locke intended. Postema maintains that the form of the right to which Nozick is commit­ ted cannot be m a d e to d o the work required of it by Nozick's theory. I address Murphy's complaints later in this section; 1 discuss the issues about which Postema is concerned in the next. We should remember that neither of these arguments con­ cerning the internal consistency of the theories (of Locke and Nozick) in any way s h o w s that there is not a natural executive right. 3 7

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A classic example in the literature o n punishment was the "definitional stop" u s e d in the debate about whether or not utilitarians were committed to the possible punishment of innocent persons. The conceptual argument—that it is not possible to (deliberately) punish an innocent person—lost sight of the fact that people were interested not in what to call what utilitarians were committed to doing to innocent persons, but in what they were committed to doing. 142

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ments" the sanctions applied by God to people, or by parents to their children, or b y teachers to their s t u d e n t s , would seem very odd. Indeed, it is generally conceded that a community (or politi­ cal-legal) response (and, I assume this m e a n s , a highly structured institutional framework) is not an essential aspect of punishment; only an "authoritative hierarchy" is really necessary for punish­ ment.'* This concession, however, just reduces claim (a) to a ver­ sion of claim (c), which I will consider in a m o m e n t . 0

41

What about the suggestion (b) that the right to p u n i s h must be much m o r e complex than simply a right to inflict harm on others? This seems indisputably true, but n o defender of a natural execu­ tive right would try to d e n y it. N o one defends a right to inflict harm (simpliciter). Rights to inflict h a r m are rights to do so in some particular context or for some particular reason. Thus, you might h a v e a natural right to inflict h a r m o n others in self-defense, in order to insure that y o u r rights are respected, to protect others, to promote the c o m m o n good, a n d so on. The executive right is (and is thought b y Locke and others to be) a right to inflict harm for (in r e s p o n s e t o , because of) w r o n g d o i n g . A s Locke's critics insist, n o other kind of right to inflict h a r m (no matter h o w inter­ esting in other respects) can count as a right to punish. Punishment essentially involves a set of rules (or, at least, a single rule—which includes, of course, some shared expectation of obedience), a n d the infliction of, h a r m for the breach of a r u l e . But the natural executive right can live u p to these requirements. There is (or can be) a set of rules (and a n expectation of obedience) in the state of nature, i n d e p e n d e n t of any hierarchical structure. The rules of 42

43

* Murphy, "Paradox," 268; Hoekema, "Right to Punish/' 2 3 9 - 4 0 . Murphy argues as well that none of the kinds of punishment that can exist without government could b e appealed to in a n argument about the justification of tiva punishment. Trds, of course, assumes that there is n o right to punish of the sort Locke defends, w h i c h Murphy believes h e has demonstrated. « Farrell argues that "Locke's position is not that each of us has the right to pun­ ish wrongdoers simply because they are wrongdoers, but, rather, that each of us has the right to p u n i s h wrongdoers insofar a s it is plausible to suppose that the innocent will b e better off if wrongdoers are punished than if they are not" ("Pun­ ishment Without the State," 440). But Locke never s e e m s to make the right to pun­ ish conditional o n effective deterrence. Preserving humankind is part of the (ruieconsequentialist) justification for punishment, but the right to punish is a right to punish wrongdoers simply because they have breached natural law (and regardless of whether or not their punishment will in that particular case help to preserve the innocent). Helping innocents in other ways may also be justified, but punishment is distinguished b y its being a response to wrongdoing. 41

9

More precisely, punishment is loss or harm inflicted on another for failure to observe applicable standards of behavior. This definition, of course, does not make impossible genuine punishing in the state of nature. 143

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morality (natural law) can fill this role. A n d if Locke is right that a breach of these rules can justify inflicting h a r m (for wrongdoing), can there n o t b e genuine p u n i s h m e n t (and a true right to punish) in t h e state of nature? We are t h u s p u s h e d naturally to the third, but apparently most important, conceptual claim (c): that there can be n o punishment without authority. T h e r e is no o n e in the state of nature with the authority t o p u n i s h all others; m u c h less could everyone h a v e such authority. Its being permissible to harm another for wrongdoing is not the s a m e as having the authority to punish that person. There could be, t h e n , no natural right to punish. What exactly is required to have the authority to punish? It seems to involve m o r e than simply being at liberty in a certain way (having a right). Perhaps having the authority to punish involves having an exclusive right to do so. But could not both a father and a mother, say, have the right to p u n i s h their children, without this implying that they w e r e not really punishing (in the strict sense) at all? Perhaps, then, having authority has something to d o with having b e e n authorized b y some person or group to p u n i s h , as our legal authorities could be taken to have been authorized by the public. This also seems unpromising as a necessary condition for the infliction of harm counting as punishment, as the examples of God a n d parents again make clear. Neither God nor parents have been authorized by a n y o n e to p u n i s h (perhaps God has authorized parents; but, in any event, someone has not been authorized). Yet w h a t they d o , even in the state of nature, seems properly to count as p u n i s h m e n t . Locke, of course, would not have been troubled by this condition, for h e supposed that each person had b e e n au­ thorized to enforce natural law—each person acts as an agent of God in enforcing His law. This is one explanation of h o w a per­ son gets the executive right in the first place. Locke's other argu­ m e n t s , considered earlier, are all designed to convince u s that God m u s t have h a d such an authorization in mind (i.e., the authoriza­ tion is entailed by other propositions w e k n o w to b e true). 44

We still h a v e not s e e n how authority is essential to punishment. M u r p h y explains it the following way: p u n i s h m e n t requires an "authoritative interpretation of law and infliction of h a r m . " What sense can w e make, though, of the claim that everyone is an au­ thority on p u n i s h m e n t ? "Where everyone is said to be an author­ ity, the concept of authority operates without s e n s e , " as cases of 44

See the discussion of this point in Dunn, Political Thought, 127. 144

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possible coruflicting "authoritative" judgments show. A n d what­ ever gives a p e r s o n authority, it cannot be "mere conscientious­ ness." Locke seems t o b e saying that each person has the authority to punish as conscience dictates; b u t surely the "white racisf s" conscientiousness cannot give that person the authority to kill a black man " w h o h a s a)mmitted the 'crime' of befriending a white woman." I n short, What Locke describes as a natural right to p u n i s h is n o t de­ scriptive of p u n i s h m e n t at all, for it describes a practice in which everyone, at all times, has authority to inflict harm for felt wrongs. This is not p u n i s h m e n t but merely the exercise of vigilante force—something w e are surely able to do b u t noth­ ing w e have a right to d o . 45

Now part of this complaint seems reasonable; b u t another part seems quite unfair to'Locke. Locke does not, of course, ever say or imply that "conscientiousness gives authority." It is God a n d rrhriinals (by their actions) that give u s the authority to punish criminals. But even if Locke were claiming that conscientiousness gives authority, it would seem beside the point to attack this claim by pointing to cases where conscientious people (e.g., white rac­ ists) act wrongly in punishing. After all, judges in a legal system, with the k i n d of authority that seems to satisfy u s , also act wrongly (from bias, confusion, ignorance, etc.). But this fact in n o way seems to limit their authority to make binding judgments. N o ground of authority rules out the possibility of mistake or wrong­ doing. Obviously, holding authorities to higher standards than mere conscientiousness is a good thing. This, however, is pre­ cisely part of Locke's point in arguing for the desirability of civil society. We m u s t b e careful to keep in mind two things that Locke is not dairning about the natural executive right. H e is n o t dairning that as long as p u n i s h m e n t is acuriirustered conscientiously it is morally defensible. There are objective standards b o t h for innocence a n d guilt and for w h a t constitutes a just punishment: "If he that judges, judges amiss in his o w n , or a n y other case, h e is answer­ able for it to the rest of m a n k i n d " (II, 13). Wrongful punishment, even conscientious wrongful p u n i s h m e n t , is itself a violation of nat­ ural law. Second, Locke is n o t claiming that a criminal may be punished over a n d over again for a single crime, by each person * Murphy, "Paradox," 2 6 2 - 6 4 . 145

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6

w h o holds t h e right to punish.* There is clearly m e a n t to b e a ceiling o n just punishment—that is, that total a m o u n t (and kind) of p u n i s h m e n t that is appropriate to t h e crime. What Locke is say­ ing is that, subject to this limit, we in the state of n a t u r e have the moral right to try to enforce the law of nature, b y meting out the p u n i s h m e n t that is lawful. If w e enforce the law wrongly, w e our­ selves are punishable. W h a t n o one h a s in t h e state of n a t u r e is the power to declare (i.e., make) a person guilty or innocent, or to declare a certain p u n i s h m e n t just (appropriate, fitting). These are matters of objective (moral) fact (II, 12). O u r natural right to p u n ­ ish, then, is only a right to p u n i s h properly; there is n o right to make authoritative pronouncements or p u n i s h authoritatively (in the sense in which this involves the p o w e r to make declarations). N o w this fact seems to b e part of w h a t worries M u r p h y . In an established legal system o n e might argue that there is a sense in which s o m e b o d y (or some body) has the power to declare a person (legally) guilty or innocent a n d declare a p u n i s h m e n t (legally) just. There is nothing like this p o w e r that a n y o n e could have in a state of nature. Locke's problem is not, as M u r p h y seems to suggest, that h e is committed to maintaining that everyone in t h e state of n a t u r e h a s such a power, so that one could declare a person guilty while a n o t h e r (incoherently) declared that same person innocent. Locke admits that n o one (in the state of nature) has such a power. The problem could n o t even really be the conflicts to which grant­ ing everyone this power would cornmit Locke. (It is possible to have a legal system in which there is more than one j u d g e with the authority to p u n i s h , but n o highest authority to resolve con­ flicts. Could there be n o p u n i s h m e n t in such a [far from ideal] sys­ tem?) Locke's real problem m u s t be simply that in a state of nature there can be n o authoritative purushing. Does this mean that there could be no such thing as purushing (properly so called) in a state of nature? I confess that I simply do not see w h y this should b e our conclusion, w h y this element should b e taken to be essential to punishment. But even if that is the p r o p e r conclusion, it is not really o n e that touches our central concerns in this matter. W h a t should interest us are t h e questions of what, in the state of nature, we are morally entitled to do to others for their wrongdoing, a n d how this natural condition must b e altered to m a k e possible legitimate p u n i s h m e n t in civil society. I think that Locke is right at least this far: that w e are (or at least ** On this point, see Lyons, "Rights Against Humanity," 210. 146

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can be) entitled in a state of nature to harm others for their w r o n g ­ doing a n d that jihis. right m u s t b e laid aside in the creation of a legitimate political society. Whether or not w e call our natural en­ titlement a right to punish is unmteresting. Murphy, of course,i p extremely careful to avoid the charge that his objections to Locke a r e . "merely verbal." Even if w e forget about w h a t to call the|infliction of h a r m in the state of n a t u r e , n o "reasonable m a n could regard as justified a system in which h a r m could b e inflicted at Will b y any person so long as that p e r s o n merely thought that another was deserving." That would be equiv­ alent to a system of vigilantism. Even, then, if the idea of a natural right to p u n i s h were not unintelligible, there surely is no such right. A n d further, if Locke claimed that all persons in the state of nature were "fully rational, all knowing, and all good," so that vigUantism d i d n ' t look so bad, Locke would be forced to admit that there w a s n o reason to form a political society, after all. Thus, the only m o v e that w o u l d make Locke's vigilantism look at all palatable w o u l d boljh involve an implausible factual chhn (that persons are fully rational, etc.) a n d undercut his main a r g u m e n t for the desirability of civil society. The heart of this criticism of Locke is the (false) assumption that he was attempting tc* justify p u n i s h m e n t (or " p u n i s h m e n t " ) for felt wrongs. We h a v e already seen that this was not his intention. The kind of vigilaritism Locke thought jusified was not the b r a n d familiar to u s from Hollywood Westerns. We all k n o w w h a t is (usually) w r o n g , w i t h vigilantism in civil society; but w h a t about vigilantism in t h e state of nature? We will condemn it insofar as we believe that i t is b o u n d to a m o u n t to mob violence, with h a r m inflicted in rash, passionate, ill-considered, unfair (etc.) ways. We will think of cases w h e r e innocents are vengefully lynched (as in The Ox Bow Incident), o r w h e r e the guilty are lynched without be­ ing given a fair (dispassionate) hearing. But n o n e of this is a nec­ essary c o m p o n e n t of vigUantism, n o r would Locke have a p p r o v e d of it. Revenge is for Locke a motive unworthy of a rational being (Education, 37). Vengeful vigilantism is a breach of moral law, itself a crime deserving p u n i s h m e n t . W h a t Locke argued for w a s a con­ ception of our natural state in which each person (or that p e r s o n banded together w i t h others) w a s entitled to harm a criminal for wrongdoing, to the extent allowed by natural law. Whether a state in which such rights w e r e generally recognized would be morally 47

* Murphy, "Paradox," 264, 266. 147

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unthinkable, as M u r p h y ' s a r g u m e n t suggests, s e e m s to m e open to argument. Of course, if people merely u s e these rights a s a fee­ ble excuse for trying to enforce their o w n irrational prejudices, life will be solitary, poor, nasty, a n d the rest. But the same unbearable existence will b e achieved by such people even without the rec­ ognition of the natural executive right. If, on the other h a n d , with Locke w e assume that persons in the state of nature will at least often care about morality, take rights reasonably seriously, a n d are frequently prepared to appeal to "calm reason" in times of con­ flict, life will look less brutish. W h e n people are prepared to act responsibly, Locke might say, w e should take advantage of this to encourage t h e m to do what is best—in this case, seeing to it that deserving wrongdoers suffer for their w r o n g s . It will not b e the best possible arrangement (people not being fully rational, etc.), but it will be better than one in which criminals k n o w that n o one feels entitled to p u n i s h their crimes. Excesses i n p u n i s h m e n t will tend to be curbed both by the clarity a n d force of natural law, and by each person's desire to avoid being p u n i s h e d by others for ex­ cessive punishment. Things could be still better, of course. The inevitable mistakes a n d passionate excesses could b e avoided, a n d t h e times w h e n calm reason a n d moral sensitivity are left entirely behind could be m a d e less harmful. Hence, Locke's a r g u m e n t (against the anar­ chist) for the preferability of civil society. I trunk, then, that the critics have not succeeded in undeirnining the Lockean project. Locke neither describes a morally unthinkable system of natural p u n i s h m e n t , nor in the process sacrifices his arguments for the preferability of political life. But it m u s t be conceded that w e have not yet examined any very satisfying account of the origin or force of the s u p p o s e d natural right to punish, or of how a just govern­ m e n t can come to have an exclusive moral right to punish wrong­ doers.

3.5. Forfeiture and Punishment Locke does not always talk of our natural right to p u n i s h as some­ thing derivable from our right to preserve mankind (itself a con­ sequence of God's positive authorization). There is in Locke an­ other line about the right to punish, one that h e does not really distinguish from those w e have considered t h u s far. Sometimes (particularly w h e r e he is concerned with war) Locke talks n o t as if the right to p u n i s h is a general right all persons have as agents of 148

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God, but rather as if it is a special right that is created by the crim­ inal, in cornmitting a crime (indeed, I categorized the executive right as a special right in 2.3). By breaching the law of nature, a criminal forfeits certain natural rights, lowering moral barriers that previously existed against the infliction of harm. This leaves others with greater right to interfere in the criminal's life and makes le­ gitimate t h e p u n i s h m e n t they may impose. In violating another's natural rights, in other words, w e lose some of our own. This seems, at first blush, a plausible story about h o w punishment might become (morally) lawful in a state of nature. What is, per­ haps, especially attractive about this account is that it seems n o t to require any reference to God's authority, making it a n explanation of a natural right to p u n i s h that would be consistent with even a purely secular theory of natural rights, and with the secular strain of Locke's o w n t h o u g h t (as w e will see). Remarks about t h e forfeiture of rights are scattered throughout both of Locke's Treatises, but n o careful formulation of the doctrine is ever given. In the Second Treatise, comments on forfeiture are most p r o m i n e n t in discussion of those cases w h e r e an individual forfeits all rights by some act that deserves death. Murderers, a n d those w h o unjustly p u t themselves into a state of war against oth­ ers (by declaring a wrongful intention to take their lives), lose all of their rights. All moral barriers to harming t h e m are lowered, making p u n i s h m e n t even b y death rightful. It is only t h u s that arbitrary, despotical power of one person over another is possible (Locke also, however, keeps the fundamental law of nature always in mind, for h e observes that " e v e n the guilty are to b e spared, where it can p r o v e n o p r e j u d i c e t o t h e innocent" [H, 159]). I n t h e First Treatise, Locke speaks of less complete and dramatic cases of the forfeiture of rights (as w h e n a father forfeits his rights over his children [1,100])- Presumably, the idea is that b y performing acts contrary to natural law o n e forfeits that portion of o n e ' s o w n rights against others that will make an interference in one's o w n life, pro­ portionate to one's interference with others, morally permissible. The most serious offenses leave a criminal altogether rightless, like some lesser animal, which m a y b e used or killed at will. 48

This kind of account of the forfeiture of natural rights seems very m u c h like w h a t some contemporary libertarians have h a d in * Locke does not have in mind (as w e saw in 3.2) that just any crime, n o matter how small, results in a forfeiture of all rights. See Bayles and Henley, Right Conduct, 182; Green, Lectures on the Principles of Political Obligation, section 177; Goldman, "Paradox of Punishment," 4 4 - 4 5 . 149

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mind. Rothbard, for instance, writes that " t h e criminal, or in­ vader, loses his o w n right to the extent t h a t h e deprived another man of h i s . " A n d Nozick p u t s it only slightly differently: 49

One might take a contract-like view of moral prohibitions a n d hold that those w h o themselves violate another's boundaries forfeit the right to have certain of their own boundaries re­ spected. O n this view, one is not morally prohibited from do­ ing certain sorts of things to others w h o have already violated certain moral prohibitions (and gone u n p u n i s h e d for this). Certain w r o n g d o i n g gives others a liberty to cross certain boundaries (an absence of a duty not to d o it); the details might be those of some retributive view. 50

There is one (prominent) difference between the views of Roth­ bard a n d Nozick o n forfeiture, however. Rothbard believes that the victim of a crime has a special right (not shared by others) to punish the criminal; Nozick regards the right to p u n i s h as shared by "all mankind.'' This disagreement in fact reflects a fundamental inconsistency in Locke's theory. Locke seems to have not o n e doc­ trine of forfeiture, b u t two. Sometimes Locke presents the simple picture of forfeiture de­ scribed above: criminals lose their rights, making p u n i s h m e n t by any other person lawful. Criminals' rights simply disappear—for a time, that is; they presumably return w h e n criminals h a v e re­ ceived just punishment, or perhaps w h e n they are forgiven. This seems to be Nozick's version of Locke, a n d a version consistent with Locke's insistence that all persons in a state of n a t u r e have the right t o p u n i s h criminals. At other times, however (and, in­ deed, in the most prominent passages on forfeiture—e.g., II, 23, 172), Locke talks as if the criminal's right is not simply lost, but is rather forfeited to or with respect to a particular party—namely, the victim of the crime. Victims are the only persons with the right to punish, although they may, of course, enlist the aid of willing as­ sistants. This seems to be something like Rothbard's view. It im­ plies, a m o n g other things, that if Morton wrongs Swanson, a n d I attempt to p u n i s h Morton for this, I wrong Morton b y doing so, even if the purushmerit J apply to Morton is the one h e deserves (or the o n e that would otherwise b e lawful in kind a n d amount). Morton's moral barriers have been lowered only with respect to «» Ethics of liberty, 8Q. Anarchy, 137-38. Notice that Ross, like Nozick, characterizes the right to pun­ ish as a liberty (Right and the Good, 61). 3 0

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Swanson, n o t the rest of h u m a n k i n d . Locke also talks as if victims have the right not t o p u n i s h criminals if they s o decide, w h i c h seems to m a k e r o o m for the virtue of forgiveness. However w e may. feel about forgiveness, it has to b e admitted that this second line on forfeiture conflicts with m a n y of Locke's most important claims about punishment. It is inconsistent with his view that t h e natural right to p u n i s h a wrongdoer is held by all persons, a n d it implies that one person m a y forgive (or b e lenient in response to) w h a t is a "trespass against the whole species." And it conflicts w i t h Locke's claim that the victim's special right, entailed b y t h e right to preserve self, is a right to reparation. N o r is it a plausible position considered o n its o w n merits. It has seri­ ous difficulty in cases where the victim is killed by the wrongdoer (who then h a s a right to p u n i s h ? ) . Further, p u n i s h m e n t seems to be " o w e d " to the criminal, not to the victim; the criminal does not deserve to b e punished by the victim. Locke, by noting the vic­ tim's special right to reparation, has already taken account of w h a t is unique about m e victim's position. We must, then, reject this second line of .argument about forfeiture in Locke, as both implau­ sible in its o w n right a n d inconsistent with more important fea­ tures of Locke's theory. I have s p o k e n approvingly of the first Lockean line about forfei­ ture (where rights axe simply lost for a time). But m u c h about this line of a r g u m e n t remains unexplained (and goes largely unex­ plained by Locke a n d most of the libertarian authors w h o have followed h i s lead).,For instance, it should be m a d e clear h o w 51

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"If [the criminal deserving death] be once allowed to be master of his o w n life, the despotical, arbitrary p o w e r of his master ceases" (II, 172; see also II, 24). Locke also talks as if magistrates (tt, 11) or rulers (H, 159) may decide not to punish the guilty {and they axe, after all, also only exercising the natural executive right). The possibility of forgiveness might seem to modify an essentially Old Testament con­ ception of punishment with some N e w Testament sentiments. Perhaps the solution might be that whoever inherits the other rights (i.e., property) of the deceased, also inherits the right to punish the killer. But this so­ lution seems to conflict with the general limits on inheritance Locke elsewhere dis­ cusses (see below, 4.4). Warren Quinn has suggested to me that w e might under­ stand the victim to have.tacitly transferred the right to punish the murderer in advance, a s an obvious ac*: of prudential rationality. Nozick, Anarchy, 138; Altham, "Reflections o n the State of Nature," 142. ** This is not fo say that the second line is without advantages of its o w n . In addition to those mentioned below (concerning exclusivity), for instance, the sec­ ond line obviates some (but not all) concerns (also discussed below) about the rea­ sons for which w e may harm others. If unjust aggressors simply forfeit rights (not to anyone), fellow aggressors (who share their evU aims) may justly harm or kill the unjust aggressors, for whatever bad reasons they may have. I try to s h o w below that (he first line can handle such worries. 5 2

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heavily this account relies not only o n a theory of natural rights, but on w h a t e v e r theory is used to determine w h a t p u n i s h m e n t s fit the crime (a subject on which I will not even begin to comment here). A s I have outlined it, the Lockean line o n forfeiture makes central u s e of certain aspects of a retributivist theory of punish­ ment; moral desert determines the degree of right-forfeiture that results from moral wrongdoing. Of course, this does not mean that the Lockean position just reduces to a p u r e retributivism, in­ sofar as those w h o are rightly punishable are not simply those w h o deserve p u n i s h m e n t , b u t only those w h o have also first vio­ lated the rights of another. (Thus, o n e w h o might seem to deserve p u n i s h m e n t more t h a n some minor violator of rights—such as one w h o constantly a n d deliberately humiliated others—might not be punishable on the Lockean account.) Desert detennines only the extent of the forfeiture, by determining w h a t constitutes a n appro­ priate response to w r o n g d o i n g . But only another's forfeiture of rights can give one (in Locke's language) a "commission" to pun­ ish. Forfeiture makes it legitimate to give wrongdoers w h a t they deserve. 55

56

This m a y still leave u s wondering, however, about w h y the vi­ olation of another's rights causes u s to lose our o w n (to the extent deserved). The answer is surely not obvious, as defenders of the doctrine of forfeiture seem t o a s s u m e . It is the " m y s t e r y " or ap­ parent emptiness of the idea of forfeiture that has led critics in this century to reject it (e.g., critics of Ross a n d other intuitionists). When asked why p u n i s h m e n t is justified, defenders of forfeiture say: because criminals have forfeited their rights. But n o account is forthcoming of why criminals lose their rights on this occasion. As a result it appears that saying mrriinals forfeit their rights is saying n o t h i n g more t h a n that purushing t h e m is justified. But we naturally w a n t to be s h o w n w h y this is justified, n o t simply have it asserted in a mysterious way. 57

Locke w o u l d appear to have several accounts available of w h y 5 3

This may, of course, be a more strongly retributivist view than Locke would have been happy with, given the consequentialist character of some aspects of his moral theory. It is possible to replace this retributivist account of the proper kind and amount of punishment with a consequentialist one, without altering the basic character of the Lockean program. But the result would, in my view, be a less plau­ sible position. Of course, to the extent that retributivism is taken to include the v i e w s that neither punishability nor the authority to punish are to be determined simply by considerations of moral desert, this is a "retributivist" stance. Quinn, "The Right to Threaten," 332-33. 5 6

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criminals lose rights.;One is that God has granted u s our rights and chooses to withdraw t h e m w h e n w e violate His law. A n ­ other is that rationality- is a condition for being subject to natural law and a possessor of the rights that law defines. Since acting wrongly demonstrates some m e a s u r e of irrationality (on Locke's view), it involves a loss of some part of the rights enjoyed by the fully rational. Neither line of argument is entirely persuasive. The first line, while it is clearly consistent with Locke's premises, will not help u s in a n y attempt at a secular theory of forfeiture (and it retains a rather mysterious quality itself). The second line is u n ­ convincing because wrongdoing is neither a necessary nor a suffi­ cient condition for lack of (full) rationality. But it is possible to give other accounts of forfeiture within a (secular) natural rights theory. Perhaps t h e most " n a t u r a l " way to view forfeiture mvoryies mamtaining that any reasonable or fair system of protective rules (laws, conventions) m u s t specify (explic­ itly or implidtly) that p n e ' s status u n d e r the rules d e p e n d s on re­ specting t h e m . Protection u n d e r the rules is contingent o n our obeying them; a n y rights the rules may define are guaranteed only to those w h o refrain from violating t h e m (independent, of course, of unanimous agreement to alternative arrangements). Surely w e cannot reasonably complain of being deprived of privileges u n d e r rules we refuse to live by. Indeed, to extend such privileges to those w h o break the., rules would seem to involve serious a n d straightforward unfairness to those w h o limit their o w n liberty b y obeying the rules. Of course, considerations of fairness also seem to dictate t h a t a m i n o r violation of t h e rules results in only a minor loss of status u n d e r t h e rules, a n d so on; so that the protection we enjoy u n d e r the rules will be proportionate to our o w n confonnity to them. Insofar as there are objective moral rules (defining rights) under which all persons (originally) stand, a n d protection u n d e r the rules d e p e n d s o h others' obedience to them, then, a propor­ tional forfeiture of moral rights may be a necessary consequence of mfringing the moral rights of o t h e r s . Valid moral rules do not 58

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* If, as I will suggest below, Locke believes that rights are entrusted to us by God only for certain uses, it i s perfectly natural that when abused, our rights return to God. * Thus n o consent to loss of rights (as in Hegel) is necessary to explain the idea of rights-forfeiture. The moral work in the account is done instead by the idea of fairness. The Lockean can as a result avoid Hegel's problem of having to claim that any inalienable right must also be nonforfeitable. See Wood (Hegel's Ethical Thought, 121) on Hegel's problem. For a related forfeiture account of punishment, see Gold­ man. "Paradox of Punishment," 4 3 - 4 5 . Goldman seems to be discussing legal 153

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extend protection to persons unfairly taking advantage of others' willingness to abide by t h e m . Locke occasionally uses language that suggests an account of forfeiture based in natural fairness, as w h e n h e speaks of p u n i s h m e n t as " t h e abridgement of anyone's share of the good things of the w o r l d . " There is, of course, a Kantian rendering of this a r g u m e n t that seems particularly obvious. The style of Kantian position I briefly described earlier (1.3) prohibits our using persons merely as means to our o w n ends, in the same way that Locke believes w e are not for one another's use. A n d w h e n w e violate protective rules under which all stand in w a y s that deprive others of their rights (or vio­ late their rights), w e seem to b e using others in a straightforward way. We u s e their compliance a n d forbearance (which is motivated by their recognition of our equal standing u n d e r the law) as a m e a n s of securing greater advantage for ourselves. Rights-forfei­ ture can t h u s be seen as w h a t secures the possibility of natural fairness a n d what renders impossible ongoing b u t morally pro­ tected patterns of (ab)use of o t h e r s . 60

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Even if these sketchy suggestions about the ground of forfeiture are found convincing or suggestive, of course, it may seem that serious problems for this account will be caused by the fact that the right to punish (as I have derived it) can only be a "liberty right," not a full "claim right." If m y right to p u n i s h arises from another's forfeiture of right, the right to p u n i s h m u s t be only a rights in his account of forfeiture; it is not dear whether he would wish to extend his analysis to natural rights (along the lines 1 have suggested). Herbert Morris discusses punishment in terms of fairness in his well-known paper, "Persons and Punishment." But he is not trying to either analyze forfeiture or discuss natural punishment. See also Ross, Right and the Good, 6 0 - 6 4 . King, Life, 1:110 (my emphasis). *' See Murphy's discussion of Kanf s o w n v i e w s o n the unfairness of not punish­ ing the guilty (which is, of course, slightly different from the unfairness I describe here of persons enjoying full moral protection while breaching the rights of others), in "Three Mistakes," 167-68. Punishing the guilty, on this account, is not a case of using them as mere means to our ends; for punishment is both required by a moral principle of fairness (and hence is not justified simply by its consequences) and responds to the free choices of persons to violate binding rules with their preestablished sanctions. M

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It is worth noting another reason for suspecting that Locke might have been happy to subscribe to this account of rights-forfeiture—that is, to a n account that centrally utilizes the idea of "taking advantage" of others. Locke never suggests that those violations of natural law that involve only harm to oneself result in forfei­ ture of rights; only harm to others is said ta have this consequence. But self-harming violations of natural law are contrary to reason and do endanger humankind (i.e., oneself as part of humankind), just like other-harming violations. The only feature of other-harming violations that self-harming violations seem to lack is their taking advantage of the sacrifices of others. 154

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permission, t h e absence of a n obligation to refrain. It does not im­ ply, as a claim right w o u l d , that others m u s t not interfere with m y actions. That is, although w r o n g d o e r s ' forfeiture of their right leaves m e (morally) free to p u n i s h them, it does not obligate others to allow m e to p u n i s h t h e m . They, being also at liberty to punish, may " c o m p e t e " with m e to p u n i s h wrongdoers first. The situation would be slightly different on the second line about forfeiture (considered.and rejected above). For o n that account, only the vic­ tim has t h e right t o (is at liberty to) punish; t h e victim's liberty right is thus a n exclusive liberty, n o t in competition with t h e liber­ ties of others. • O t h e r s could not p u n i s h the criminal first (this would violate the criminal's rights), nor could they interfere with the victim's lawful p u n i s h m e n t of the criminal (for that w o u l d in­ fringe the victim's right of self-government—the right n o t to be hindered b y others in. lawful pursuits except b y their competition). Thus, the exclusive liberty the victim would have on t h e second (unsatisfactory) account of forfeiture, would have moral conse­ quences similar to t h e victim's h a v i n g a full claim right to p u n i s h . It may seem a s h a m e riot to pursue this account further, for is n o t this kind of exclusivity of the right to punish (i.e., the guarantee of freedom from interference) exactly the property that w e wish our government's right to p u n i s h to have? Most believe that legiti­ mate governments h a v e a right, in the full sense, to lawfully p u n ­ ish criminals, a right that includes an obligation on citizens n o t to interfere or try to p u n i s h the criminal before the state does (this is the so-called monopoly o n force that governments claim a n d that excludes, a m o n g other things, vigilantism). We need to explore the potential of t h e first account of forfeiture (the o n e I h a v e cho­ sen to defend over the second account) to provide a solution to this problem of explaining the exclusivity of the legitimate govern­ ment/ s right to p u n i s h . Suppose (as the first account maintains) that Butch commits crime (moral wrong) C, for which p u n i s h m e n t P is appropriate (ac­ cording to natural law). Butch forfeits certain of his rights, making it morally permissible for me, or any other person to impose P upon him (subject to the limit that n o more than a total punish­ ment of P b e imposed). Just h o w strong a "right" to p u n i s h does this liberty give me? Well, w h a t kinds of justifications might an­ other person, Chico, h a v e for interfering with m y imposing P on Butch? First, Chico might think Butch deserved p u n i s h m e n t Q, instead of P, a n d as a result believe himself justified in imposing Q and resisting m y imposition of P. O r h e might think Butch in155

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nocent altogether, a n d feel justified in defending Butch against m e . O r h e might o p p o s e p u n i s h m e n t generally a n d argue that he was justified in stopping my p u n i s h m e n t of Butch. Finally, Chico might w a n t to p u n i s h Butch himself, and compete with m e to im­ pose POnly t h e last of these could be a successful defense of Chico's interfering with m y punishing Butch with P; a n d even this would not justify Chico's physically impeding m y punishing. Chico's only justification would b e for competitive interference (where he rushed to Butch's h o m e a n d punished him with P before I could get there). We m u s t remember that w e are not describing a Hobbesian state of nature, in which people have only liberty rights. In a Lockean state of nature, each person has a full claim right to free d o m from (noncompetitive) interference, provided that person acts within t h e constraints of t h e moral law. Since m y imposing P on Butch would be within those constraints, any interference by Chico other than competitive interference is morally indefensible. My right to punish, then, w h e n combined with m y right of selfgovernment, rules o u t m o s t kinds of interference, a n d constitutes a reasonably substantial right. My remarks above have already suggested that I think the proper solution to the problem of competitive liberties is an appeal to the principle "first come, first served." This answer for the sys­ tem of " o p e n p u n i s h m e n t " I have been describing is similar to the Lockean solution for a system of " o p e n property." Where land or natural resources are u n o w n e d , those w h o labor on t h e m first (subject to certain provisos) "make a property" in them. All are initially at liberty to claim parts of the common, and may use only competitive interference (i.e., taking first) in exercising this lib­ erty. Nozick worries that if we allow t h e first punisher to p r e e m p t the field, sadists will compete to arrive first at the scene of the crime (to get in their licks while the getting's good). This possibility makes o n e uncomfortable, and not because (as Nozick supposes) the sadists will be hard to control (always imposing excessive pun­ ishment in t h e h e a t of passion). Sadists w h o thus lose control will 63

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The well-known Lockean provisos on the creation of property (II, 31-33) are necessary in that case, but not in a system of open punishment, because (obviously) being deprived of access to natural resources endangers one's life, while being de­ prived of chances to punish criminals (as long as someone does it) d o e s not (in fact, it may even enhance one's life prospects). I return to the limits o n property and to the Liberty to make property in 5.4. 156

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also be punishable. W h a t makes one uncomfortable is the prospect of punishing being d o n e by rational, responsible sadists—who punish only t h e guilty, a n d only with the proper kind a n d a m o u n t of punishment, b u t w h o delight in doing so. This brings u s squarely u p against a difficulty I have t h u s far avoided facing. If the crirrrinal simply forfeits .the right not to b e harmed in certain ways, then any w a y in which this harm is imposed appears mor­ ally acceptable, any reason a p e r s o n has for imposing it is good enough. If Butch and his gang roam the state of nature, cutting throats at r a n d o m (just for the fun of it), a n d h a p p e n to cut the throat of a m u r d e r e r (who deserves to be punished with a painful death, say), then that particular threat-cutting, but no other, might be morally acceptable. This s e e m s a preposterous implication of the position I h a v e been defending. We must remember first that p u n i s h m e n t is the infliction of harm for (in response to, because of) w r o n g d o i n g . At least part of what motivates those infHcting harm must b e the belief that a wrong has b e e n d o n e a n d that t h e response they are making is morally (legally, conventionally) appropriate or deserved, or that infliction of h a r m cannot possibly count as punishment. Butch a n d his gang punish n o one; neither do the rational sadists if part of their reason for acting is not the belief that p u n i s h m e n t is appro­ priate. Punishers m a y h a v e additional motives (beyond these be­ liefs)—anger, a desire to protect society, sadism, a n d the like. But these cannot b e all that moves a person to inflict h a r m on another, if we are to count that infliction of harm as p u n i s h m e n t . Of course, w h a t w e call the harm Butch a n d his gang cause is not very important o r l n t e r e s t i n g . W h a t is important is that it is not morally permissible. We are permitted to h a r m wrongdoers only for certain reasons. The situation parallels that of taking rep­ aration for injuries another has caused. If I take property from o n e who, completely u n b e k n o w n s t to me, had previously stolen my property, m y taking is still theft (and morally impermissibley— ;

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Quinn, "Right to Threaten," 332-33. " On Locke's commitment to this view, see Von Leyden, "Locke's Strange Doc­ trine," 121. For a recent general statement of this view of punishment, see Wood, Hegel's Ethical Thought, 108. ** Where institutional forms of punishment are concerned, matters are not so simple. A criminal can properly be said to be punished, for instance, evert if the motives of some judge, jury member, or executioner are purely sadistic. What re­ mains true, however, is that (what w e might call) the overall "institutional" motive must reflect the notion of a justified response to wrongdoing if w e are to count the institutional process as o n e of punishing. 157

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even t h o u g h the property I took from that person I might have been entitled to take, if I h a d taken it as reparation. Sirrularly, the throat-cutting Butch imposes is murder, not justifiable punishment, a l t h o u g h h e might h a v e been entitled to kill if h e h a d done so as punishment. The main difficulty with this suggestion (as far as I can tell) is in motivating t h e revision it requires to the doctrine of forfeiture. Criminals m u s t be said to forfeit not rights not to be h a r m e d in certain w a y s (simpliciter), b u t rather rights not to be h a r m e d in certain ways for certain reasons. The criminal, after such a forfeiture, has no right to complain a b o u t harms d o n e as p u n i s h m e n t ; the criminal still has every right to complain (although w e will no doubt b e less sympathetic than usual) about other kinds of harm­ ing. These claims seem to m e not unbearably awkward or a d hoc, for w e often voluntarily transfer to others rights to act only for certain reasons (e.g., you may give your doctor the right to act during y o u r u p c o m i n g surgery as h e thinks best—but only when he acts for medical reasons, as opposed, say, to his acting for fi­ nancial reasons or to e n h a n c e his professional reputation). If we may voluntarily create a situation where others have rights to act only for certain reasons, it seems plausible to suppose that nonvoluntary forfeiture might result (as I have claimed it must) in rights to h a r m a n o t h e r only for certain reasons. A n d the fairness account of forfeiture defended above seems to p u s h us naturally in just this direction. For the unfairness to others that w o u l d be involved i n allowing t h e criminal to retain a full complement of rights is unfairness only to those w h o themselves obey the rele­ vant rules. Butch (with others w h o harm for the w r o n g reasons) is not obeying the rules in the relevant sense—that is, he is not pre­ pared to deliberately limit his o w n liberty according to h i s view of what is required b y fair rules. Indeed, h e demonstrates his unwill­ ingness to obey t h e rules in the very act of attempting to inflict the harm (since h e believes the act not to be one of just punishment). There is t h u s no unfairness to Butch in allowing a criminal to retain the right not to be h a r m e d for Butch's reasons. Fairness (thus for­ feiture) is at issue only in relation to those w h o do obey the rules (and a t t e m p t to h a r m others only for acceptable r e a s o n s ) . 67

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This argument provides as well, I think, a response to many w h o have criti­ cized certain aspects of forfeiture theories of the right of self-defense. David Wasserman, for instance, has claimed (following George Fletcher) that there are "seri­ ous and well-recognized drawbacks to a forfeiture approach" to self-defense rights ("Justifying Self-Defense," 361). A m o n g these "drawbacks" is the alfeged inability 158

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Again there is,-1 think, a Kantian (and thus, to the extent elab­ orated earlier, a Lockean) motivation for this restriction on rightsforfeiture. H a n n i n g others (who deserve punishment) for the wrong reasons is morally w r o n g in the same way that dispropor­ tionate p u n i s h m e n t of wrongdoers is w r o n g . Both fail to respond to persons a n d w h a t th^y did, both fail t o respect t h e m . " A n au! tonomous p e r s o n has alright that his p u n i s h m e n t b e addressed, to that status—to those unique features of his individual, responsible conduct which occasion fhe p u n i s h m e n t " ; otherwise, h e is "being used" for w h a t e v e r the purposes are t h a t motivate t h e excessive rnmishment (or, in m y case, the wrongly motivated harming). Respect or responsiveness is not determined just by the brute, . physical description of o u r acts, but also by our beliefs and inten­ tions. Since t h e possession of rights is premised o n autonomy a n d moral agency, forfeiture of rights is similarly restricted—we forfeit rights by our misconduct only to the extent that makes possible respectful p u n i s h m e n t . Only the total forfeiture of personhood af­ fects this restriction for Locke. The same style of argument that Locke could use to justify his insistence o n proportionality of p u n .* ishment (EC, 8), then, carl b e used to justify this limit on the reasons :, for which w e m a y legitimately h a r m w r o n g d o e r s . '.' If my claims to this point have been correct, a system of o p e n ' punishment is a morally acceptable (and morally well-motivated) system. But are "there ;difficulties w e have not yet considered for ;

68

69

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of forfeiture accounts to explain w h y aggressors' lives may not be taken for just any reason, w h y they may be taken only by those responding defensively, and then only if such force is necessary to repel the attack (see Thomson's similar criticisms tn "Self-Defense and Rights,'' 33-37). The style of argument presented above sug­ gests that forfeiture theory has;,ample resources to deal with such problems. * Murphy, "Cruel and Unusual Punishments," 234. Here Locke apparently disagrees with Vlastos, w h o claims that "the moral community is not a d u b from which members may be dropped for delinquency" ("Justice and Equality," 48). * And Locke w o u l d here again be following Grotius, w h o restricts reasons for which one may punish (De Jure Belli ac Pads, 468). Nozick, in his discussion of open punishment, very quickly gives u p trying to understand h o w it might work, and retreats instead to a view according to which everyone jointly holds the right to punish (or to empower someone to punish). N o one individually has such a right (Anarchy, 139). But his apparent retreat turns out to be only a strategic withdrawal. Nozick has good reason to want a system of open punishment to be indefensible (which explains his haste in disposing of it). For if everyone jointly holds the right to punish, but people disagree about w h o to e m ­ power to do their punishing, then the "dominant protective agency" operating in the state of nature h a s the best claim to d o the punishing. For it represents a larger part of the "everyone" w h o jointly hold the right to punish, than any competing agency or individual. A n d since n o individual has the right to punish, held sepa­ rately, no individuals' rights are violated w h e n the dominant protective agency w

n

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a system of o p e n p u n i s h m e n t (other than the obvious ones, like defending a theory of n a t u r a l rights in the first place)? Admittedly, this account of the natural executive right leaves n o r o o m for a certain kind of mercy or forgiveness, u n d e r s t o o d as the right of any individual. While individuals can be forgiving in their hearts and can refrain from p u n i s h i n g , criminals can only b e forgiven (in the performative sense, s o that p u n i s h m e n t is n o longer rightful) if everyone agrees to forego p u n i s h i n g them. I accept this result without great discomfort. P e r h a p s someone might w i s h to argue that this is another r e a s o n for favoring civil society (where it will be easier for criminals to b e forgiven); I d o not. It may, finally, seem that in spite of the " s t r e n g t h " of this version of a right to punish (in terms of m a k i n g interference by others impermissible), it is still too weak a version of t h e right to p u n i s h to satisfy Lock­ ean ambitions. I will consider t w o ways in which this might seem to be so. First, it might b e claimed that a mere liberty to p u n i s h , even if protected from all b u t competitive interference, fails to capture the sense (occasionally s u g g e s t e d b y Locke) in which p u n i s h m e n t in the state of n a t u r e is n o t merely morally permissible, b u t a duty.

71

does all of the punishing of criminals for u s (i.e., for everyone). This is what allows Nozick to claim that the dorninant protective agency has "some special legitimacy" and violates no individual's rights (ibid., 139-40). If, however, the best w a y to understand the right to punish in a state of nature is in terms of the system of o p e n punishment defended above, Nozick's main ar­ gument appears to fail. H e can argue neither that the dominant protective agency has a special legitimacy nor that the rights of individuals (who will be prevented by the agency from p u n i s h i n g in their o w n way) voU n o t be violated by its prac­ tices. Even Nozick must have been uncomfortable about suggesting that the right to punish must be held jointly- since he observed that this w o u l d make it the only right in a state of nature " p o s s e s s e d by people jointly rather than individually" (ibid., 139). This has the appearance of a position designed only to produce the desired results. See Postema's interesting and much more complete discussion of the difficulties with Nozick's main argument ("Nozick o n Liberty"). Some portions of my presentation in this section parallel Postema's work, although w e reach quite different conclusions. See also Altham, "Reflections o n the State of Nature," 14144. 7 1

In the central sections o n punishment (II, 7-13), Locke actually almost always talks of punishment as if it is permissible only, not a duty. His use of "may," "right," and "power" c o n v e y this sense. The quotation from Genesis (II, 11) stands out in quite dramatic contrast to this tendency. Punishment only seems to be a duty at all after government takes over and agrees to use the right to punish for the common good (making the duty in that case consensual in nature); and it is not always a duty even then, since the magistrate may rightfully decline to punish wrongdoers in some cases (II, 11) (see below, and note 51 above). The idea that we have no duty to punish s e e m s to be central to Locke's arguments concerning resis­ tance to oppressive government. If there is n o duty to punish in Locke, this is further reason to favor our first (simple) line on forfeiture as the best reading of 160

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i

If it is simply permissible to p u n i s h a thief, say, there seems to b e no stronger moral reason to d o so than there would be to hit a n unruly dog ( w h o alsd\lacks the right not to b e harmed). Punish­ ment seems a matter of moral ^difference. What this complaint overlooks is that in the case of the wrongdoer, but not in the case of the dog, the p u n i s h m e n t is not only permissible but deserved. Where it is true both' that someone deserves a certain treatment and that it is permissible for u s to treat that person in that way, we have good moral'reason to act. Thus, punishing the wrongdoer is not a matter of moral indifference o n this account (even if it is not, strictly speaking , a d u t y either), for the mere absence (through forfeiture) of rights is not the whole of the story. I be­ lieve that the natural right to punish, understood as it has been described in this sectipn, captures all of the force of the intuition expressed earlier (in 3.1) about the justifiability of p u n i s h m e n t in a nonpoUtical state. But can it also b e u s e d to explain w h y a legit­ imate government h a s the exclusive right to punish, the other es­ sential part of the Lockean project? 1

73

3.6. The Monopoly on Force We can, I think, give a Lockean account of these matters (if not precisely Locke's own) that captures the main ideas Locke w a s concerned to defend-^(a) that a legitimate g o v e m m e n f s right to punish can only b e u n d e r s t o o d in terms of a redistribution of pre­ viously existing natural rights, and (b) that the natural right to punish must be sacrificed {i.e., freely alienated) by all members o n entrance into civil society. T h e Lockean account I h a v e in m i n d proceeds as follows: As per the revised Lockean position outlined in 3.3, each citizen m u s t entrust to government that portion of the Locke, since w e can s e e n o w that it naturally yields n o such duty. O n the other hand, of course, the right to punish is derived by Locke from the right to preserve mankind—a right that is, as w e have seen, also a duty. This strongly implies mat punishment should also, kt least often, be a duty. Perhaps Locke is attracted to a view like that of Grotius, for w h o m s o m e punishment is required, while other is only permitted, s o that forgiving the criminal is only sometimes acceptable (De Jure Belli ac Pads, 4 8 9 - 9 1 ) . But Locke s e e m s never to take any explicit stand on this question. " This point provides a partial answer to o n e of Allen Wood's criticisms of He­ gel's account of punishment—for example, that Hegel s h o w s h o w punishing is morally permissible, !but can offer n o positive moral reason for punishing the guilty. See Hegel's Ethical Thought, 116-17. To the extent that w e allow considerations of deterrence to function in the account, of course, there is a further reason (the pres­ ervation of humankind) for purushing the thief, but not the dog. 161

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right to self-government that is necessary for effective government (if that g o v e r n m e n t is t o b e legitimate). T h e g o v e r n m e n t then holds against each of u s a right to interfere (including, particularly, by punishing) in our lives in the designated areas. But the govern­ ment cannot obtain from us in this way an exclusive right to punish those crimes that are moral wrongs. For our rights of self-govern­ ment do not include the right of exclusive control over our lives w h e n w e violate the moral law. O u r right to be free of interference is only a right to b e free within t h e b o u n d s of natural law. By oui wrongdoings w e forfeit the right of control over our lives in some measure, making the interference of any other lawful. The govern­ ment can be given by each of us only a right to interfere w h e r e we are not violating moral law, for only in those areas d o w e begin with a natural right of self-government. In cases of moral wrong­ doing, the government has (given w h a t has been said t h u s far) only the s a m e liberty to p u n i s h that other persons p o s s e s s . It is thus in competition with private citizens w h e r e it seeks to punish acts that are mala in se. The simple transfer of our claim rights to noninterference cannot give the state an exclusive right to punish. This requires a remedy, if there is to be o n e judge over all citizens. 74

The obvious solution is that (in the Lockean spirit) each citizen must also surrender on entering civil society the natural liberty to p u n i s h w r o n g d o e r s . Each m u s t agree n o t to compete w i t h the state in p u n i s h i n g (moral) criminals. In this way, a n d only in this way, can the government acquire an exclusive liberty to punish moral wrongdoers (the effective equivalent of a claim right), in ad­ dition to the claim right it receives from each consenting citizen to punish in other (necessary) areas- The production of the exclu73

76

7 4

Locke's sensitivity to these issues is best displayed in his early Second Tract. where h e carefully distinguishes between the magistrate's powers in the areas of morally obligatory conduct (covering crimes that are also moral wrongs) and "in­ different" conduct (covering those areas in which our right of self-government orig­ inally left u s free). Locke worries that if the magistrate is not free to legislate con­ cerning "things indifferent," then the magistrate could only recommand and enforce the requirements of natural law, in which sphere "the power of the mag­ istrate s e e m s to be n o greater than that of any private citizen" (228). This problem is solved by Locke in the Second Treatise, where both obligatory acts and indifferent acts bearing importantly on effective government are taken to be proper subjects for legislation. See also King, Life, 2:109-10; L. 126 More precisely, citizens in their private capacity must renounce the natural (lib­ erty) right to punish, leaving citizens in their public capacities {possibly including self) free to exercise a (collectively) exclusive liberty to punish. The renunciation is thus conditional o n not occupying a public executive office. * O n c e the government has this right, citizens are n o longer free to punish even those w h o s o m e h o w escape the punishment they deserve. This, however regret7 5

7

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sive liberty for government, of course, is in some w a y s analogous to Hobbes' account of trie origin of the sovereign's right to p u n i s h and to Locke's o w n account of h o w a father can come to have title as a p r i n c e . But because the Lockean version of our natural con­ dition also includes full claim rights that m a y b e transferred, n o n e of the Hobbesian difficulties about the obUgating force of the sov­ ereign's laws arise. 77

The force of this account might be captured more simply as fol­ lows. If it is ever morally permissible to p u n i s h wrongdoers (i.e., to coerdvely control t h e m in certain ways) in the state of n a t u r e (and, of course,; I have , argued that, at least often, it is), t h e n our natural rights of self-gbyemment m u s t b e taken (as Locke took them) to be limited to those areas of our lives w h e r e w e operate within the b o u n d s of natural law. The government cannot, t h e n , obtain in the m a n n e r suggested in 3.3 (by a simple transfer of rights of self-government) a n exclusive right to p u n i s h moral wrongdoers. If it tries id forceably exclude attempts by private cit­ izens to p u n i s h wrongdoers, it invades their natural liberty to u s e competitive interference in punishing. In the absence of a Lockean "contract" of goverrimefit, in which this liberty t o p u n i s h is laid aside by citizens, leaving their governors free to legitimately exer­ cise their liberty to p u n i s h (and to force citizens not to p u n i s h -j 1

table, must be understood as part of the price w e pay for having o n e umpire over all citizens. If failure to punish ^ deserving is part of a deliberate, unjust program by government, of course, matters are changed. "And this is the foundation of thai right of punishing which is exercised in every commonwealth. For the subjects did not give the sovereign that right but only in laying d o w n theirs strengthened him to use his o w n as h e should think fit for the preservation of t h e m all; so that it was not given but left to him, and to him only, and (excepting the limits set him by natural law) as entire a s in the condition of mere nature" (Leviathan, chapter 28, paragraph 2). Locke similarly talks as if the father's children can simply "lay d o w n " their rights to punish, leaving the father free to exercise his o w n executive right as an exclusive liberty (It, 74). The strategy I here suggest for Locke (and the Lockean) is similar to the "Hobbesian account" discussed and rejected by Schmidtz (Limits of Government, 36-37). Schmidtz ap­ pears to reject the account because it cannot justify state punishment with reference to independents (nonconsenters, nondients), since the state's liberty to punish is exclusive only with reference to those w h o have surrendered or laid d o w n their similar liberties. But since I take the (correct) Lockean position o n legitimacy t o b e precisely that standard state practices (such as punishment) typically cannot be jus­ tified except to t h o s e w h o freely consent to those practices, independents must simply be accepted by the Lockean as remaining in the state of nature and as being beyond coercive assimilation into the state (see note 78 below). The problem for the Lockean, then, is n o t w i t h this account of the legitimate government's right t o p u n ­ ish; it is with the meaning of political consent and with the possible resulting truth of philosophical anarchism. e

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wrongdoers), any government's claim to a "monopoly on force" within its territories m u s t be morally indefensible. However badly this account m a y fit with some of t h e details of Locke's o w n presentation, it surely captures the central spirit of his views. O n the account I have sketched, the government's (ex­ clusive) right to p u n i s h m u s t be understood to b e composed of its exclusive liberty to p u n i s h moral wrongdoers, plus its claim right(s) to control individual citizens (collectively) in other desig­ nated areas of their lives. Sinularly, Locke insisted that govern­ ments could only rightfully punish if empowered in a fiduciary transaction between citizen and government—and that the rights transferred to g o v e r n m e n t in this transaction m u s t include both rights to control our lives a n d rights connected with the punish­ ment of wrongdoers (II, 128-30). My agreement with Locke is, then, quite substantial. I agree that if there is a natural executive 78

7 8

This conclusion does not follow, of course, if individuals can justifiably be de­ prived of or prevented from exercising their rights to punish without their consent (i.e., without actual wrongdoing on their part and without their free alienation or renunciation of those rights). Locke, of course, steadfastly opposes such "prescrip­ tion" of natural rights (see m y 'Inalienable Rights," 1 7 8 - 7 9 , 185). But Nozick has encouraged us to think instead about this question in terms of the reliabUity of methods of self-help enforcement of natural law, suggesting that the state (or a protective agency, or an individual) may justifiably prohibit and punish methods of enforcement by others that are unreliable, thus legitimately eliminating any con­ flict between its right to punish and that of those independents w h o s e private pun­ ishing threatens its clients (Anarchy, 101-10). But Nozick really provides n o justifi­ cation for prohibiting independents from using reliable private punishing methods, or for doing any more than monitoring the use of even unreliable methods (and intervening only to prevent wrongful punishment). Since Locke's executive right is only a right to punish correctly, the proper use of that right by independents can­ not b e justifiably infringed without their agreement. Their consent to give u p their executive rights is thus still necessary to secure for government a legitimate mo­ nopoly of force. I think, then, that FarreJI is mistaken in insisting that o n Locke's o w n terms the consent of the governed is not really required for legitimate gov­ ernment (see, for example, his "Punishment Without the State," 450; '"Legitimate Government," 201-2; "Coercion, Consent," 528-29, 532, 536), both for the reasons suggested above, and because the legitimate Lockean state can at most prohibit selfhelp enforcement of natural law, not coercively bring independents under the re­ quirements of civil law. Similarly, I disagree with Schmidtz's conclusions that the right to punish should really be understood as the right to punish only by the method that is least risky to others, and that this may require that independents let the state punish for them (Limits of Government, 38). For, in the first place, it is only acceptably risky methods of punishment that are mo rally permissible, not the least risky method in u s e (which might, of course, be far too risky to be allowed). And independent punishment may be "acceptably risky." Second, while n o individual can be sure that h e is a "Charles ~Bronson type," as Schmidtz rightly claims (ibid., 46), state punishment methods can surely not be taken to be exactly risk-free either (given corrupt and overburdened police and courts, crowded and dangerous pris­ ons, etc.). For criticisms of Nozick's approach related to those voiced above, see Sayward, "Anarchism," 1 0 6 - 9 .

164

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,

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•

right (and if it is possible to defend t h e theories of natural rights and desert on which the executive right depends), then this Lock­ ean transaction b e t w e e n government and citizens is necessary for the moral legitimacy of the common practice of p u n i s h m e n t within political communities. Since I a m further persuaded that there are good reasons to s u p p o r t the natural right to punish, Locke's be­ liefs about the necessity of this transaction may well b e justified. The results for which I have argued here seem to square well with the central intuition about the justifiability of "natural p u n ­ ishment" expressed in 3.1. But w h a t of the apparently confticting intuitions (e.g., that private citizens within civil society might also be justified in p u n i s h i n g u n p u n i s h e d wrongdoers)? I suspect that such beliefs arise largely from skepticism about Locke's claims that we have in fact given u p our natural right t o p u n i s h t o our govern­ ment in the kind of transaction h e describes. A n d this skepticism may well be Warranted. The Lockean account I have just defended is an account of w h a t m u s t take place if legal p u n i s h m e n t is to b e legitimate. We m u s t noit confusedly suppose that it is a descriptive account of w h a t in fact occurs in most civil societies (although Locke himself, of course, seems to have supposed just this). It may be true that purushmerit in m a n y or most civil societies is not legit­ imate, a n d that, private citizens in these societies are entitled to punish wrongdoers w h o go u n p u n i s h e d (either within or without their societies). Lockean consent m a y be necessary for legitimate 79

80

" I have not yet ccaninerited on the international implications of the Lockean position—for example, thatj (barring international covenants) each legitimate gov­ ernment has the right (i.e., liberty) to punish moral wrongs committed within the territories of other countries, by citizens of those countries. This right is not, of course, a right to interfere with the legitimate processes of punishment that may be taking place within other countries, but only a right to punish alien wrongdoers who have g o n e unpunished. If e v e n this limited right s e e m s indefensible, remem­ ber the attitude of the Allies'at the Nuremberg trials, where German war criminals were prosecuted for moral (not legal) crimes against German citizens, committed on German soil. Was it n o t wittun the rights of the Allies to punish the monstrous acts of these criminals? The Lockean view implies an affirmative answer. Legitimate governments have exclusive rights to punish wrongdoers within their territories, but these rights are held onjy against their o w n citizens, not against the w o d d at large. Other governments have the right to punish moral wrongs that are left un­ punished by the responsible government, although exercising this right will only be sensible and prudent w h e n (as in the case of Germany) the wrongs m question are serious and numerous. M

If citizens retain their natural executive rights, of course, they may even have a right to punish wrongdoers before the state has a chance to institute legal proceed­ ings. But there will often b e good reasons for not doing so—fox example, reasons of prudence, or the fact that it is best (even if not obligatory) to allow more experi­ enced and better organized punishers to have the first chance to do the job. 165

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legal p u n i s h m e n t , b u t not sufficiently in evidence in real political societies to justify our actual practices. There are, obviously, m a n y other details of the Lockean pro­ gram on p u n i s h m e n t that need elaboration. But a n y o n e , I think, w h o finds the Lockean intuitions about natural p u n i s h m e n t com­ pelling, w h o believes in the possibility of a defensible theory of natural rights, or w h o thinks the arguments of this chapter not clearly defective will have reason to consider this program seri­ ously. If it is not, in the end, an acceptable position, there is at least more to be said for it than most contemporary commentators have allowed. O n the subject of punishment, then, some of Locke's o w n arguments point toward the p r o p e r position to incor­ porate in the Lockean theory of rights. 81

M

For instance, it may s e e m to be an objectionable consequence of our Lockean account that legitimate governments have the right to punish alt moral wrongs (in­ cluding, for instance, those that are quite trivial and those that have n o t been made legal w r o n g s at all). T h e proper response to such worries is t o note that the trans­ action necessary to create legitimate government involves not only a transfer of rights from citizens to governors. It also includes the specification of limits on the government s authority—most important, that it not violate the rights of a n y citi­ z e n and that it exercise its authority only for "the c o m m o n g o o d " (for example, H, 131). The latter requirement (that it use its power only for the c o m m o n good) can be understood to constrain the goverranenf s exclusive liberty to punish moral wrongdoers. It establishes that governments can only rightfully punish moral w r o n g s that h a v e b e e n m a d e legal w r o n g s by "promulgated, established l a w s " (II, 142) ("Or else that law would have been of n o use^ it being to n o purpose to lay restraint or give privileges to m e n , in such general terms, as the particular person concerned cannot be k n o w n by" [I, 128]). that it should not make some moral w r o n g s (for example, simple promise-breaking) into legal wrongs, a n d that it should not punish trivial moral wrongs. To d o otherwise would be to exercise its authority in ways dearly at odds with the promotion of the common good. A s Locke argued much earlier than the Treatises (in 1667), magistrates may tolerate s o m e vices if it is best for society that they d o s o (ECT, 183). A n d t h e government violates n o one's rights by not punishing certain moral wrongs (at least where it provides equal protection from wrongdoing for all of its dtizens). Of course, the promotion of the common good requires that punishment be frequent and effective e n o u g h to secure a safe and decent life for dtizens, but this in n o w a y implies that all moral wrongs must be punished. -

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4.1,,Wives,

Husbands, and Servants

Locke's insistence o $ the artificiality of authority a n d our natural freedom m a y s e e m t o face a substantial obstacle in t h e apparently natural structure of authority w e acknowledge within the family (a point noted earlier b y Filmer in his critique of contractual theories of authority). The:authority parents wield over their children seems both justifiable a n d in n o w a y to d e p e n d o n the consent of the governed children (Hobbes' claims t o the contrary notwith­ standing )- Filmer's ^use of these facts to support a patriarchalist theory of political authority required a powerful response from Locke; so it.is' hardly surprising that the complex of rights (and duties) within tine family receives m o r e careful attention in the Treatises thariany other of the special or general rights Locke discusses (with the possible exception of property rights). Both of the Treatises contain ^engthy examinations of morality in the fam­ ily. A n d b y taking'care to appreciate the real force of Locke's claims, I will contend, w e can find in the Treatises the framework for a surprisingly liberal a n d intuitively appealing conception of the order a n d substance of natural familial rights a n d d u t i e s . A Lockean position on this subject, developed along lines (some­ times) suggested by Locke himself, is, I think, compelling. While I will disagree w i t h Locke's claims in a n u m b e r of places, the correct positions will almost always result from extending arguments that Locke merely employed too weakly. 1

(

2

We will b e here discussing only the moral dimensions of family life, not the emotional, social, legal, or other important aspects of it (all of which aire, of course, related to o n e another in a variety of 1

For discussions of Hobbes' views o n filial duty, see Blustein, Parents and Chil­ dren, 67-74, 107-8; and Meilaendei, " t i t t l e Monarchy/ " A brief but sound introductory discussion of Lockean familial morality can be found in Tarcov, Locke's Education, 66-76. 1

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3

fashions). In certain ways, of course, the moral dimensions seem the least important features of family life. Talk of rights a n d duties seems to clash with the caring, committed mutuality, loyalty, and naturalness of the healthy family. Only w h e n things are going very w r o n g in a family does moral language seem to become prominent. Wives a n d h u s b a n d s claim their rights against o n e an­ other during divorces. Parents are reminded of their duties (and of the rights of their children) w h e n they are negligent, abusive, or overindulgent. Children are reminded of their duties (and of the rights of their parents) w h e n they are disobedient, disrespect­ ful, or unsupportive. Healthy family life seems to proceed without thought of rights a n d d u t i e s . N o n e of this, however, suggests that familial morality is an e m p t y or uninteresting subject, a n y more than the loyal, habitual, or unthinking behavior of most (happy) citizens s h o w s that their rights a n d political obligations can b e ig­ nored. While these rights a n d duties may be actively appealed to only in times of stress a n d conflict, their existence as a recognized (if unformalized) background even in h a p p y times seems u n d e n i ­ able. Rights a n d duties within the family deterrrdne both the moral limits of familial relationships a n d the presupposed struc­ ture u p o n which our nonmoral commitments a n d attachments are formed. 4

5

6

It is important to emphasize, however, that accepting t h e exis­ tence of special duties a n d rights within the family need not com­ mit one to a rejection of so-called impartialist, neutralist, or universalist moral theories, such as Kantian or utilitarian theories. It is currently popular to oppose those moral theories that treat all per7

3

9

Actually, m y focus may be even narrower than these remarks suggest. I will concentrate only o n those rights and duties that are not based or grounded in emo­ tional ties (although they may, of course, coexist with them). If there is more to familial morality than this (or e v e n more to familial rights and duties), I d o not touch on this remainder. On questions about the relationship between "caring" and familial morality, see Blum, "Gilligan and Kohlberg." Sandel, Liberalism, 112; Young, "In the Interests of Children," 1 8 8 - 8 9 . See Melden, Rights and Persons, 67; and Wicdair, "Caring for Frail Elderly Par­ ents," 1 7 2 - 7 3 . See Waldron's defense of the need for rights in the family "to fall back o n " (Nonsense upon Stilts, 1 8 8 - 8 9 ; "When Justice Replaces Affection") and Blustein's similar remarks in Parents and Children, 1 0 3 - 4 . Railton also notes that recalling the moral dimensions of personal relationships may help us to distance ourselves and prevent powerful emotions from blinding us to what is best ("Alienation," 1 4 6 47). For an attack on "impartialism," see Sommers, "Filial Morality." Blum uses the same term ("Gilligan and Kohlberg," 472). Pettit and Goodin, "Possibility of Special Duties." 4 5

6

7

a

168

EIGHTS

AND

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sons impartially to those that are sensitive to t h e special ties a n d obligations t h a t exist between family members, friends, a n d others in special relationships. A n d surely w h e n the opposition is por­ trayed in these terms, there can be little doubt w h e r e the truth lies. With the opportunity to save only one of the t w o drowning chil­ dren before m e , few would doubt that I ought to save my own child rather than t h e other, completely unrelated child. The Kant­ ian (or utih'tarian) is,, by contrast, supposed to recommend use of a perfectly impartial method of choosing between the children (perhaps the Kantian will quickly flip the coin carried at all times). But t h u s portrayed, the dichotomy is a false one. Defend­ ers of impartialist theories can with perfect consistency accept gen­ eral moral principles that account as well for t h e existence of special moral b o n d s b e t w e e n family members, friends, a n d the like, in the same way that they can accept general principles that account for the special obligations of promises. An impartialist can acknowl­ edge that if I h a v e promised a n inexperienced swimmer t o watch over him while h e is i n the water, a n d the promisee a n d an unre­ lated stranger both begin to drown at the same instant, that m y first obligation is. to t h e promisee. Flipping a coin would amount to denying t h a t m y promise h a d any moral force whatsoever. Sim­ ilarly, an impartialist'may acknowledge general principles of grat­ itude or reciprocatidn, or defend special responsibilities toward those w h o s e plights iye cause, a n d let these principles explain our special ties to p a r e n t s ' a n d children." There is no need for "partial" moral principles to explain our special obligations. Locke, I think, 9

10

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* See Sidgwick o n the'force of such intuitive judgments of special obligation {Methods of Ethics, 246-47) ;. ' Pettit and Goodin allow that Kant probably doesn't qualify as a neutralist ("Pos­ sibility of Special D u t i e s / ' 659n), nor apparently d o rule-consequentialists, al­ though they are .said to have problems of other sorts (658n). It looks as if only actconsequentialists may qualify, making true neutralists or imparaahsts a reasonably exclusive club. Act-consequentialists, of course, have always had problems explain­ ing even the widely accepted special duties, such as those derived from promises (see below). Becker argues, for instance, that social distance almost always determines the extent of reciprocal relationships, so that the strength of moral bonds (under a gen­ eral principle of reciprocation) will tend to vary with social distance (Reciprocity, 216-22). Pettit and Goodin try to ground special duties (in part) in general principles of responsibility, apparently without seeing that this involves an appeal to precisely the land of general moral principle on which neutralists rely ("Possibility of Special Duties," 665). A v i e w similar to the o n e I defend here is advanced b y Gewirth, w h o claims that "ethical particularism" is derivable from "ethical universalism" ("Ethical Uraversalism"). See also Rafllton's efforts to derive particularist duties within an­ other land of urdvexsalist framework (in this case, a consequentialist one) ("AUenr

, 0

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tries to handle the special rights a n d duties in families in this lat­ ter, impartialist fashion (contrary to Sommers' hesitant claim ). There is no need to search beyond the general impartialist princi­ ples Locke espouses to find a justification for the moral priority of the family in Locke. I begin m y discussion of rights in the family with t h e consensual aspects of the family, which in Locke comprise the conjugal rights (and duties) of wives a n d h u s b a n d s a n d the (economic) rights of masters a n d servants. In sections 2 and 3 , 1 will consider the non­ consensual special rights (and duties) of parents a n d children; sec­ tion 4 deals with property relations within the family, a n d in par­ ticular, with inheritance rights (as a preface to the more general discussion of property in chapter 5); in section 5,1 briefly elaborate the political implications of a Lockean view of familial moral rela­ tions. 13

14

Conjugal society, Locke writes, "is m a d e by a voluntary compact b e t w e e n m a n a n d w o m a n " (II, 78). T h e rights of the h u s b a n d (and the wife) are "founded o n contract" (I, 98; II, 8 2 - 83), a n d are t h u s what I have called (in 2.3) consensual special rights. Locke is dearly speaking here of marriage as a moral, n o t a legal, relation­ ship (II, 83; I, 123), a n d one whose terms are t h u s not to be thought of as constrained b y any particular legal (or other) rules or conventions (II, 83). Husband a n d wife may promise to love, honor, cherish, a n d obey one another, or they may bind them­ selves b y different a n d more specific agreements. The contract must b e consistent with the ends of conjugal society, or else it can­ not count as a rmrriage contract; but all else can "be varied a n d regulated by that contract which unites m a n a n d wife" (II, 83). There is t h u s a wide range of possible contracts between a w o m a n and a m a n , ranging from purely economic (nonmarital) contracts, through " s t a n d a r d " marriage contracts, to quite individual a n d unconventional marriage contracts. For Locke, of course, the end ation"); Buchanan's observations o n the derivation of special, nonvoluntary obli­ gations from voluntary undertakings of responsibility ("Assessing the Communitarian Critique," 873); and Wong's discussion of "impartial" and "particularist" moralities ("On Moral Realism," 107-12). "Filial Morality," 444. For Locke's more general defense of "impartialism," see 6.4 below. We must remember here that our subject is the natural rights that are possessed specially by members of families, qua members. Locke is trying to understand those aspects of familial morality that are logically independent of any law, custom, convention, or agreement (and of any positive familial rights or duties derived from such sources). 1 3

14

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'i

or point of conjugal' society is procreation a n d the care of the "common ofoprmg' 01, 78-83); so a n y marriage contract neces­ sarily m u s t b e understood to include an agreement to care for a n d educate any erulcken [resulting from the union, a n d to " s u p p o r t and assist" o n e ' a n o t h e r during the time that the rearing of chil­ dren takes place (H, 78, 83). For those of u s w h o m a y disagree w i t h this (or any Other essentiaiist) account of marriage, however, Locke's conrrachialistlyiew of marriage can still be accepted, with marriage contract? only exnibiting certain "family resemblances" to one another. ? i Locke is, I think, cbrrect in s u p p o s i n g that the rights (and d u ­ ties) of spouses (or olj any other persons involved in long-term, monogamous relationships) are primarily determined by consent, as the appropriate source of bonds between e q u a l s . Vvrule there need not b e a n y t h i n g so formal as a contract, voluntary agree­ ments or u n d e r s t a n d i n g s m a y distribute the rights a n d duties within the relationship as the partners please. That is the funda­ mental moral c o m p o n e n t of marriage. Religious a n d legal recog­ nition of certain unidris, the profound emotional ties that usually accompany t h e m , ancl t h e function such unions play in social in­ teraction d o n o t alter this fundamental component, nor d o other moral aspects ,of rriarriage that may a d d to it. That marriage aims, in a sense, at overcoming the partners' preoccupation with their moral rights arid duties with respect to one another, in n o w a y suggests that they lack these rights a n d duties or that they are n o t based in a voluntary u n d e r t a k i n g . A more troubling problem, however, is that the "contractual" undertaking between wife a n d husband may be un|nformed, seriously underspecified, or amor­ phous, leaving it uncertain just h o w the rights a n d duties within a marriage o u g h t to b e distributed. I n such cases t h e natural solu­ tion is to favor equality between the parties; b u t it is in this context that Locke's least liberal (and most sexist) views on marriage are expressed. i 1

16

17

18

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a

Kant, for instance, claims that while the natural e n d of marriage is producing and educating children, this is not essential to marriage, since people may have other ends (Metaphysics of Morals, part 1, section 24). * Again, see Kant, Metaphysics of Morals, part 1, section 26. See the discussion of reciprocity between spouses in Becker, Reciprocity, 1 8 6 95. 1 do not think that considerations of reciprocity can override the genuinely vol­ untary undertakings of spouses. Contrary to what Hegel s e e m s to have thought (Philosophy of Right, section 163). Locke must receive mixed reviews on h i s UberaUty with regard to equality of the sexes. The passages I consider below (and Locke's views o n paternal control of ]

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While a h u s b a n d has no absolute power (right, authority) over his wife, Locke argues (I, 48; 11, 8 2 - 83), h e does h a v e a certain "priority" over her (she " o w e s " him a limited "subjection" {I, 48]). Every h u s b a n d has the right "to order the things of private con­ cernment in his family, as proprietor of the goods a n d land there, a n d to h a v e his will take place before that of his wife in all things of their common concernment" (I, 48). In disagreements between husband a n d wife, the m a n has the right of "last deterrrunation" in "things of their common interest a n d p r o p e r t y " (II, 82). Why this priority of the man's will? Aside from references to God's p u n ­ ishment of w o m e n for Eve's transgressions (I, 47) (which, I argue below, Locke does not intend as a source of m a n ' s authority over woman), Locke says only this: w h e n h u s b a n d a n d wife disagree, it "being necessary that the last determination, i.e., the rule, should b e placed somewhere, it naturally falls t o t h e m a n ' s share, as the abler and stronger" (II, 82). 20

Even supposing (falsely) that men (individually or as a group) are "abler a n d stronger" than w o m e n , it is hard to see w h y Locke should have thought this fact a ground for unequal rights between h u s b a n d a n d wife. After all, other natural inequalities in strength or ability (those between adult males, for instance) do not seem to justify inequalities in their rights, on Locke's view (as w e saw in 2.2). This apparent inconsistency seems easy to explain if w e sim­ ply ascribe t o Locke a firm commitment to the natural superiority and dominion of m e n over w o m e n , a prephilosophical commit­ ment that his general philosophical principles cannot b u d g e (even 21

property) make it easy to simply dismiss his views as thoroughly permeated with the d e e p and casual sexism of his age. (See, e.g., Clark, "Women and John Locke," 721-24; Seliger, Liberal Politics, 211-12.) But while Dunn is certainly right that Locke's sexual egalitarianism fought a losing battle with his acceptance of the rad­ ically inegalitarian conventions of his age (Political Thought, 121-22n), there w a s at least a battle. Locke's insistence on equal parental authority and his very b'beral views on the free determination of nonconventional marriage contracts deserve some notice. A n d , as 1 argue below, other aspects of Locke's views o n the rights of w o m e n deserve more charitable readings than they usually receive. See Yolton, Locke, 58. 2 0

Locke's proof of this claim seems seriously confused (again involving a blur­ ring of moral with physical "powers"). He argues that if the husband did have absolute power over his wife, "there could be no matrimony in any of those coun­ tries where the husband is allowed no such absolute authority" (II, 83). This seems to amount to the quite silly claim that if the state denies y o u exercise of a right to X, you cannot have a moral right to X (a claim, of course, which Locke emphatically and correctly rejects throughout the body of his work). I will concentrate here o n the husband's right to decide in conflicts over their c o m m o n concerns; wives' property rights—which they can acquire by "labor or compact" (II, 183)—1 discuss separately in 4.4. 11

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at the price of inconsistency). We could then argue that for Locke the "natural dominion of one sex over the o t h e r " is so obvious that it "does n o t even h a v e to be justified." Locke m a y say conjugal society is consensual; p u t given Locke's view of w o m e n ' s weak­ ness a n d inequality, a n y contract of marriage would border on unconscionability, In the end, the a r g u m e n t goes, Locke's real view is that m e n enjoy a'..natural (not contractual) dominion over women, both in a n d but of marriage. H e should not be credited with having e s p o u s e d a more "liberal attitude toward marriage and the relation of the sexes." This reading of Locke, I trunk, is unfair to him, for h e quite spe­ cifically denies that m a n has any natural dominion over woman. God never gave him any such dominion: H e never gave "any au­ thority to A d a m over Eve, or to m e n over their w i v e s . " Women are not naturally subject to their h u s b a n d s , although, Locke "grants," there is "a foundation in nature for it" (I, 47). What is this natural "foundation" for an artificial authority? It is quite clearly m e a n t to b e m a n ' s superior strength a n d ability—not as the source of his authority, but as a natural fact to which man's achievement of conventional authority is connected. What, then, is the relevance of this natural superiority? First, of course, it is natural (not obligatory) to defer in certain ways to those w h o are abler, stronger, wiser, older, or more virtuous (as Locke sayS else­ where—e.g., n, 54). As a result, it is natural (and, subsequently, conventional) for w o m e n to give m e n greater authority than they reserve for themselves in their free marriage contracts. This is nat­ ural a n d conventional, not necessary—for Locke mentions in­ stances in which women have elected not to give their h u s b a n d s this authority (e.g., I, 47; n, 65). And because it is natural (and t h u s inevitably conventional), Locke assumes, if the marriage contract does not specify alternative arrangements, w e may understand it to give greater authority to the h u s b a n d . But Locke has, I think, a second reason for his belief that h u s b a n d s typically have (limited) 12

13

24

25

a

"Women and John Locke," 7 0 2 - 4 , 708. See also Pateman, Problem of Political Obligation, 75. Clark, "Women a n d John Locke," 7 0 9 - 1 1 . O n unconscionable contracts, s e e my "Consent, Free Choice," section 5. Ibid., 721. See also Pateman, "Women and Consent," 152. While Locke never indicates any interest in considering, for instance, female citizenship, these assess­ ments of his views still seem unduly harsh (for reasons specified below). The biblical text at issue merely "foretells w h a t should b e woman's lot" (I, 47); it does not prescribe it. Locke uses this same style of biblical interpretation o n other occasions in the First Treatise (e.g., I, 118). n

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authority over their wives. In voluntary unions b e t w e e n persons that do n o t involve a precise specification of the m e t h o d s for set­ tling disputes, the right to determine the b o d y ' s actions m u s t be understood to He with the greatest "force" in the body. This is an important principle for Locke, for it underlies his defense of ma­ jority rule as the understood rule of resolution for political unions: "it being necessary to that which is one body to move o n e way; it is necessary the b o d y should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one b o d y " (II, 96). Locke's reasoning about the h u s b a n d ' s right of ' l a s t determination'' in a marriage proceeds similarly: this right m u s t " b e placed some­ where," so it "naturally falls to the man's share, as the abler and stronger" (U, 82). 26

Locke's a r g u m e n t is in neither case very convincing. But the important point to note here is that h e is in neither case arguing for a natural authority (of majorities or husbands). In b o t h cases he is trying to give reasons for mterpreting an inexplicit contract in a certain way, for u n d e r s t a n d i n g w h e r e the artificial authority to make decisions for a body m u s t be taken to lie, w h e n it has not been explicitly stated in the contract. A n d in both cases h e allows that if there has been an explicit agreement o n some alternative arrangement for decision-making, this agreement overrides the reasoning h e has advanced. Thus, political bodies m a y "expressly agree" to require more than a simple majority for binding deci­ sions (II, 99); and, presumably, this means they may opt for differ­ ent procedures altogether (e.g., lottery, weighted lottery, plural voting for the more able, etc.). Similarly, every aspect of the mar­ riage contract (except the responsibility to provide for offspring) may be varied by express agreement (II, 83). Wives may h a v e the right of "last determination" themselves, if this is agreed on, or the mates may decide conflicts b y lottery or by taking turns, a n d so on. The authority of h u s b a n d s is neither natural nor necessary. Where, then, does this leave a Lockean contractual account of M

In the case of majority rule, of course, there is nothing straightforwardly more authoritative or fair about this procedure than many alternatives (e.g., lotteries, votes weighted by intensity of preference, etc.). Even the physical analogy (right must follow force) will not help here, since an intense minority might be a "greater force" than an apathetic majority. In the case of marriage contracts, e v e n if greater ability were a ground for greater authority, a right of "last determination" is far from the only way to implement this authority. And again, the "greater force" in a dispute need not fall on the side of the party possessing the greater physical strength. 174

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"marital morality"? If w e deprive the account of its false factual assumptions (about rnan's superior strength a n d ability), it seems not at all unreasonable or illiberal. Marriage contracts m a y distrib­ ute rights a n d duties b e t w e e n the partners as they specify. In the absence of explicit specification by or understanding of the part­ ners, w e should take the contract to have the conventional f o r m . In Locke's d a y , this m e a n t a superior position for the husband; b u t the voluntarinessland fairness of marriage contracts in Locke's day were typically u n d e r m i n e d by the vastly inferior bargaining posi­ tion of the w o m a n (based on her economic dependency a n d social limitations). Fairness, t h e n , would have dictated that w e inter­ pret inexplicit contracts more equitably than the conventions of Locke's day would h a v e suggested. Today, w h e n conventions are more egalitarian a n d w o m e n ' s dependency o n male approval less profound, t h e problem of unfair contracts is less dramatic. W o m e n can, if they w i s h , accept a traditional or limited role in family d e rision-making; or they can insist on equal (or greater than equal) rights in this area as a condition of the marriage contract. O n l y unfairness a n d d u r e s s (etc.) involved in entry into a marriage will require u s to question t h e terms of a n explicit contract or interpret an inexplicit o n e in other t h a n conventional t e r m s . 27

28

29

On the role of servants in the Lockean family, I shall in this chap­ ter have considerably less to say. I n seventeenth-century England, of course, servants w e r e commonly treated as members of the families for w h o m they worked; the act of making oneself a ser­ vant "commonly p u t s hfm into the family of his master, a n d u n d e r the ordinary discipline h e r e o f " (H, 85). But Locke forcefully re­ sists the consequently riatural urge to treat the authority of fathers (and mothers) over their servants as paternal (parental) or even 30

2 7

Sidgwick, Methods of Ethics, 256. Locke accepts the idea that unfair bargaining position can void an apparent contract (see, e.g., I, 42). ' I leave untouched myriad difficulties concerning degrees of voluntariness, so­ cial conditioning, "false consciousness," and so on, as well as questions about the term of marriage contracts (may they be renegotiated w h e n one or both of the part­ ners changes or grows in w a y s that make the initial specification unrewarding or inappropriate?). ;i Locke himself w a s often regarded as a member of Shaftesbury's "family," in spite of being a gentleman and absentee landlord. On the servant's place in the family in Stuart England, see Schochet, Patriarchalism, 6 4 - 72; Macpherson, Posses­ sive Individualism, especially ?B2-86, and "Servants and Labourers"; Ashcraft, Rev­ olutionary Politics, 1 5 4 - 6 0 . M

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despotical. The only rights a master possesses over his servant are those h e acquires by contract between t h e m . A servant is a free­ man, w h o gives rights to his master "by selling him for a certain time, the service h e undertakes to d o , in exchange for wages h e is to receive" (II, 85). Thus, " t h e turfs m y servant has cut" are my property (II, 28), the contract between us specifying that h e will provide for m e these fruits of his labor in exchange for pay. Much has been m a d e of the significance of Locke's claims about servants to his overall views of property and e c o n o m y . 1 will re­ turn to those issues in 5.2. Here it is important to stress that, as in the case of h u s b a n d s ' authority over their wives, the authority of masters over servants is limited a n d contractual for Locke. Again against Filmer, Locke is quite clear o n the distinction between slaves (who are not holders of equal for any] rights) a n d servants (who, being equal rightholders, m a y freely contract with others) (II, 85). While h e calls slaves "another sort of servants" (and oc­ casionally seems to confuse the two in the case of de facto slavery ), the dejure cUstinction is clearly d r a w n . Again, as in the case of w o m e n ' s marriage contracts, the key issues for the viability of Locke's claims will b e voluntariness a n d fairness (in the relative strengths of bargaining positions). Where servants m u s t (as a re­ sult of need, mtimidation, social conditioning, etc.) accept the terms offered by masters, Locke's description of the servant as free contractor will seem a case of blithe a n d self-serving deception. But if w e read Locke's remarks (as I will argue w e should) in the context of a n understood acknowledgment that duress a n d unfair­ ness are conditions that limit the bindingness of contracts, w e can accept his description of the moral condition of servants as reason31

32

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For Kant's parallel claims, see Metaphysics of Morals, part 1, Section 30. These "wages," of course, need not be in the form of money; other g o o d s may be adequate compensation for the servant's services, both before and after the in­ vention of money. See Seliger, Liberal Politics, 1 6 0 - 6 1 . Briefly, Macpherson argues that Locke's claims show his acceptance of the wage relationship (even in the state of nature), and that thus defending the right to alienate labor for a wage removes moral obstacles to accepting (as Locke alleg­ edly did) unlimited capitalist appropriation {Possessive Individualism, 214-21). Tully responds that Locke's master-servant relationship, far from being the wage rela­ tionship of capitalism, is actually inconsistent with capitalism (and unlimited ap­ propriation). The servant sells a service or a task, not his labor (Discourse, 135-44). For a recasting of what is most plausible in Macpherson (and least plausible in Tully), see Shapiro, Evolution of Rights, 139-43. 3 1

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A s in 1,130, where h e writes of "servants" purchased by "a planter in the West Indies." Perhaps Locke finds it hard to refer to those w h o are clearly unjustly en­ slaved (by his o w n principles) as "slaves," however contentedly he may have prof­ ited from the slave trade himself. 3 76

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able, and as a trivial consequence of a more general doctrine of economic liberty ^ 4.2. The Rights of Parents (and the Duties of Children) Parents are said at various times by Locke to have natural rights to respect, gratitude;' assistance, honor, support, obedience, defense, reverence, a n d acknowledgment. Children h a v e (under appropri­ ate conditions) correlative natural duties or obligations to satisfy these claims. But the (rioninstitutional) rights of parents (and filial duties) can in fact b e divided neatly into two main classes: what Locke calls t h e "right of tuition" a n d the "right of h o n o r " (D, 67). And these two (classes'of) rights arise from very different sources. It is on this subject that Locke's remarks on familial morality are at their most plausible, and m a n y contemporary writers have fol­ lowed the Lockean line as a result. I will try here to summarize Locke's views a n d to motivate certain natural extensions of them, in order to defend a Lockean position on natural parental rights and filial duties. .\ 1

Parental rights are for Locke, first, rights held by both parents. While h e occasionally/uses the more traditional term "paternal power" in place of "parental p o w e r " (e.g., II, 69, 170, 173), Locke's view that these rights are shared is clearly stated in both Treatises (e.g., I, 6, 55, 61, 62; n, 52). This group of shared parental rights is divided by Locke (following Aquinas, a n d as suggested above) into two distinct rights (or better, subgroups of rights), each of which seems as well to have two parts, a n d each of which has a distinct g r o u n d , t , 36

What Locke calls the."right of tuition" is "a sort of rule a n d ju­ risdiction" (II, 55) or "temporary government" (II, 67) that parents have over their children, a right to rear them a n d control them in M

I do not mean by this remark to suggest that all who work for w a g e s are equiv­ alent to "servants" in Locke's view (as Macpherson supposes). The custinction be­ tween servants and other laborers played a very important role in the Putney de­ bates and the Levellers' defense of manhood suffrage (and consequently in Locke, as Ashcraft has s h o w n [Revolutionary Politics, 154-601). 1 mean only that the ser­ vant's moral condition is only interestingly different from that of any other partici­ pant in economic activities by virtue of the specific terms of the contract under which he works. ,"' Schochet briefly discusses Locke's waffling in "Family," 85. Locke's emphasis on fathers' rights throughout his discussion is due (at least in part) to his polemical task, for he needs to refute rimer's various claims about the nature and extent of paternal authority. Fihner, obviously, made no claims to refute concerning maternal authority. 36

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ways which will ultimately result in the children's healthy inde­ pendence a n d moral agency. It is a right to rule "patemalistically" (i.e., for t h e good of the o n e ruled ) over o n e ' s children, to help them through "the weakness and imperfection of their n o n a g e " (II, 65) by informing their minds and governing their actions (II, 58). Locke should be understood here to have two kinds of rights in m i n d u n d e r the heading of the right of tuition. O n the one hand, parents have a right to rear their children as they see fit (within the limits set by the point of that right—i.e., the good of the children), a right that is held against the world at large. This is a right not to have the job of parenting stolen or usurped b y oth­ ers. Natural parents have the right of "first try" in rearing their offspring. While Locke nowhere explicitly discusses this aspect of the right of tuition, it is clearly presumed (since Locke even denies the p o w e r of the state to overturn natural parental rights [e.g., I, 64]). The second aspect or part of the right of tuition is a right held not against society, but against one's children. Parents have a right to obedience from their children during their minority (at least when they are parenting properly). "The power of commanding and chastising" (II, 67) falls to parents, as those w h o are in charge of governing for their children's good, until the children "come to the use of r e a s o n " and are able to govern themselves (II, 170). The right of tuition, in both its parts, cannot be taken from a natural parent without cause. But it can be forfeited by parental incompe­ tence, abuse, or neglect (whether from inability or from deliberate breach of duty); it can be alienated by the p a r e n t s ' decision to " p u t the tuition of [their child] in other h a n d s " (II, 69); a n d it is natu­ rally dissolved when children reach the "age of discretion." It is thus a right that is far indeed from absolute dominion of parents over children (L 51-53; II, 53, 64, 69, 74). 37

38

The second parental right is the "right of honor," a right held by parents against their children and one that m u s t also be underv

Locke d o e s not seem to have in mind that parents must maximize the benefits they provide tor their children. They must only refrain from harming their children and provide them with the necessary means to self-government (which includes, as I argue below, both satisfying their basic needs and providing reasonable com­ forts, where possible). Parental rule is limited at least to that authority which is consistent with the performance of these parental duties. The Education makes it dear that parental education and discipline must be aimed at making children ca­ pable of liberty—that is, rational, virtuous, and free. Locke's specifications ot the ways in which parental power can (and cannot) change hands are, of course, important to his case against Filmer, since for Filmer political authority was an instance of paternal authority that had "changed hands" all d o w n through the ages. w

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stood to have t w o parts. Its first part concerns the nonmaterial support a n d responses to which parents have a right from their diildren—that "hpnor" ', that is d u e parents "by the Fifth Com­ mandment" (I, 64).' Parents have a right to b e respected a n d re­ vered by their children (EE, 67), to b e s h o w n gratitude a n d receive acknowledgment for the benefits they have bestowed u p o n their children. Deference t o . a n d compliance w i t h parental wishes are appropriate even after,'children have matured a n d are self-sup­ porting (II, 69). Second; t h e right of honor is also a right to material support from one's children, w h e r e this is needed a n d the chil­ dren are able to, supply'it (after one's children provide for their own children, if any). Parents are entitled to " s u p p o r t a n d subsistence" (a "return of goods") from their children, a n d even have a claim to inherit from their children if there are no grandchildren with prior claims (I, 90). Like the right of tuition, the right of honor is imprescriptible. Locke describes the right as "perpetual" (e.g., H, 67), but h e clearly intends that it m a y b e forfeited b y parental n e ­ glect, at least in large m e a s u r e . Unlike the right of tuition, how­ ever, the right of honor cannot be alienated (transferred voluntar­ ily).'" \ 1

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As s h o u l d b e plain b y n o w , the right of tuition is a right parents have over children (primarily) in their minority, while the right of honor largely refers to , the claims of parents against their grown children (although, of course, even y o u n g children should honor their parents in w a y s appropriate to their ages). As a result, the correlative duties or obligations of children are similarly divided by age, with the duties being "stronger on grown than younger children" (II, 68), Young children, then, have a d u t y of obedience to their p a r e n t s ' c o m m a n d s , correlating with (part of) the right of tuition (II, 65, 67). Even g r o w n children may owe some obedience, although this seems to be thought b y Locke to be part of the duty of honor (correlating with parents' right of honor), rather than be­ ing a simple extension of t h e y o u n g child's d u t y of obedience (H, ;

x

To call a right "unprescriptible*' is to say that it may not be simply taken away from the rightholder by some other party. See m y "Inalienable Rights," 1 7 8 - 7 9 . * In 1 , 1 0 0 , Locke first says this right can be forfeited "to some degrees" and later that "much" of the right can be forfeited. In n , 6 5 , Locke suggests the stronger view that forfeiture of parental power can be total. Again, Locke is unclear about h o w much of the right of honor may be alienated. In I, 6 5 , he doubts mat the father "can alien wholly the right of honor that is due" (my emphasis); in 1 , 1 0 0 , however, the father can "transfer n o n e of it," making the right of honor in principle inalienable. I criticize this argument for inalienability in "Inalienable Rights," 1 8 6 - 8 7 . 41

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68). The duty of honor, then, is o w e d by grown children to their parents, a n d is a "perpetual obligation . . . containing in it an in­ ward esteem a n d reverence to be s h o w n by all o u t w a r d expres­ sions" (II, 66). It is a duty to " h o n o r and s u p p o r t " one's parents (II, 68) in the w a y s just specified. What, then, are the g r o u n d s (source) of these parental rights a n d filial duties? By exanuning Locke's arguments for his claims, w e will b e led, I think, to make certain changes in the contents (scope) of the rights a n d duties just described. At times, of course, it a p p e a r s that Locke w a n t s to g r o u n d parental rights simply in the biological relation of parents to children (blood, as they say, is thicker than water). He refers to the ground of these rights as "na­ t u r e " (e.g., n, 173) a n d calls their basis " t h e right of generation" (E, 52) or the "right of fatherhood" (I, 64); a n d the First Treatise is filled with apparent agreements with Filmer that mere "begetting" is sufficient to ground parental rights (e.g., I, 63, 74, 98, 101, 111). It is tempting here to compare the rights of parents over their chil­ dren to the self-evident "right of creation" enjoyed by God over His creatures (discussed above in 2.2), a n d Locke did occasionally suggest this comparison. But, of course, parents do not own their children in the way God o w n s His creatures (as Locke argued at length against Filmer's, and, e.g., Aristotle's, contrary claims ), a n d in the strict sense they do not create their children at all (and so cannot have a "right of creation" over them). Parents lack the knowledge a n d skills necessary for the creation of s o remarkable and mysterious a creature as a child. Only God possesses these, a n d only God can be credited as the maker or creator of children (I, 5 2 - 5 4 ) . Parents are only " t h e occasions of life to their chil42

43

44

45

** There is o n e peculiar suggestion in Locke that these filial debts are paid (in large part) "by taking care and providing for [one's] o w n children" (I, 90). The idea that a debt o w e d by A (the child) to B (the parent) could be paid by rendering services to C (the grandchild) makes n o sense at all, unless there is a clear under­ standing or agreement between A and B that this shall be an appropriate manner of paying the debt. Nonetheless, this o d d suggestion is repeated by Olafson in "Rights and Duties." Olafson's claims are criticized in Melden, "Olafson," and in Schrag, "Children: Their Rights and Needs." « See Colman, Moral Philosophy, 45-46. ** For a contemporary version of the parental ownership thesis, s e e Rothbard, The Ethics of Liberty, 99. *> See Tulh/s discussion of Locke's creationism in Discourse, 57-59. Tully claims earlier that Locke holds that parental rights and duties arise simply from begetting (that the relation of begetting may be "unpacked" to reveal these rights and du­ t i e s ) ^ ) . I argue below that w h i l e this may b e Locke's v i e w of parental duties, it cannot be true for most of the parental rights Locke discusses. Melden defends a view similar to the one Tully attributes to Locke (i.e., that to identify o n e as a father 180

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dren" (II, 66; I, 54). They are procreators, not creators, only d e p u ­ ties and trustees for a higher authority. Their rights m u s t t h u s b e explained differently from God's (supposing that God's are even capable of explanation). Locke's considered opinion s e e m s t o b e this. Parental rights (at least for the m o s t part) d o not derive from mere begetting or bio­ logical relation at all (II, 65). They m u s t be earned b y the provi­ sion of care a n d s u p p o r t to the child. The o n e kind of right that mere begetting does i n part g r o u n d is t h a t portion of t h e right of tuition that I called earlier the right of ''first try." Natural parents have first claim on rearing their o w n children, a claim held against the world as a whole. Other parental rights belong only to those who actually p u r s u e parenting (i.e., those w h o d o n o t abandon, give away, or abuse their children). The distinction between the two basic (classes of) parental rights with regard to their grounds is simple: the right of tuition derives from parents' duty to care for their children (Q, 58, 67) a n d the correlative rights to care that these children possessfH, 63, 67, 78; I, 89-90); the right of honor, by contrast, is g r o u n d e d in the provision of benefits b y parents to children, a n d is a right to a return that is proportionate to the ex­ tent of these benefits (& 65, 67, 70; 1,100). 46

47

Let us examine these claims in order, begirming with the right of "first try." In the absence of alternative arrangements to which parents have consented, Locke is claiming, natural parents have first right to rear a n d educate their children without mterference from o t h e r s . Unless they forfeit or alienate this right, they may fashion their child's environment without the scrutiny or direction of others w h o m a y disagree with their parenting decisions. This is a right possessed bjj all and only those w h o beget children. But 48

49

just is to identify the rights h e has) in Rights and Right Conduct, 72, 77-78, 84. But Melden does not m e a n by "rather" simply "biological rather." * Ruddick, "Parents and Life Prospects," 126. Compare the opinion of Grant, w h o maintains that the parent's right to be Honored arises from' the act; of generation (Liberalism, 59, 62). This seems doubly mistaken, since not only d o e s Locke appear to reject the moral significance of mere generation, but clearly baseSj'the right to honor on parental benefaction, not mere generation (see below). • On the special problems connected with the authority to educate children (which I cannot pursue here), see Gutmann, "Children," and Democratic Education; Henley, "Authority to Educate"; Schrag, "Rights over Children"; Lomasky, Per­ sons. Rights, 174-80. This amounts to a right to "a certain latitude," within the constraints set by their duties to their children (Blustein, Parents and Children, 112-13). See Schoeman's description of this "latitude" in "Rights of Children," and Lomasky's in Per­ sons, Rights, 1 7 2 - 8 1 . v

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w h y s h o u l d natural parents b e supposed to b e entitled to this sort of control? Locke's answer is that such parental rights are (what w e called i n 2.1) m a n d a t o r y claim rights—they are rights to do w h a t w e h a v e a prior d u t y to d o (II, 58, 67). W h e n a person has a d u t y or special responsibility to provide care for a n o t h e r (as natu­ ral p a r e n t s d o , for the reasons discussed below in 4.3), that person m u s t be allowed by others to do that duty. They w r o n g that per­ son if they prevent the fulfillment of responsibilities. It is t h u s the natural p a r e n t s ' special responsibility to their child that explains their right of tuition, a right t h a t is simply a trivial consequence of their d u t y of tuition. 50

T h e m a i n difficulty with this view lies in its attempted deriva­ tion of claim rights from duties. As I argued above (2.1, note 25), while liberty rights do i n d e e d seem a trivial consequence of duties, claim rights d o not. We can see this most clearly in the case of un­ related promises m a d e by t w o different people to d o (or purchase) w h a t only o n e of t h e m can do (or purchase). The obligation of the first promisor m a y entail a liberty to discharge the promise, but it in n o w a y entails a claim right (which would exclude t h e liberty of the second, equally b o u n d , promisor). Parental authority, how­ ever, m u s t b e more t h a n a mere (competitive) liberty to rear one's children if it is to square with either a Lockean stance or common moral intuitions. Parental authority m u s t consist of claim rights, w h i c h others have a d u t y to respect. 51

w

Blustein has recently defended a "Lockean conception of parenthood" that ar­ g u e s for parental authority in precisely these same terms (Parents and Children, 11113; see also the principle o n which these views are based—ibid., 171). It may seem, as a consequence of this Lockean position, as if at least in this area of Locke's thought, natural duty is prior to or more basic than natural right (to return to an issue discussed in chapter 2). But if w e remember that the duty of tuition is simply a logical correlate of the child's rights to care and (eventual) freedom (these rights often being spoken of by Locke as that from which the parental duty derives—e.g., II, 63, 67), w e will see that there is n o case to be made here for the priority of duty or for a derivative status for rights. This argument succeeds only if it is true that n o third party has a right of con­ trol in the matter—that is, a right to dedde which promisor shall have access and a right to grant that person a claim right. If, for instance, society had the authority to distribute parental rights, mere parental liberties might be converted into paren­ tal claim rights by society's exercising its authority. But Locke dearly assumes (as d o I) that society can have n o natural rights of control that might compete with individual natural parental rights, given that society's rights are merely composed from logically prior individual rights. Society's rights over children must be under­ stood to b e contractual, conventional, or in some other fashion positive, and so to p r e s u p p o s e a background of individual rights of control. Natural parental duties d o not entail natural parental claim rights. That is the only point relevant to Locke's (and our) concerns here. 5 1

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It is natural to try to justify such claim rights b y appealing here to the labor expended j n bearing the child (by the natural mother) ; - or to the fact that both t h e father a n d the mother have contributed parts of themselves t o produce the child. While these styles of ar­ gument are more corrtmonly used to justify property in Locke (as we will see i n 5-2), a n d w e k n o w parental rights cannot b e prop­ erty rights exactly, it may be possible to produce variants of Locke's property arguments that establish not property in the child, but r a t h e r only a special right to a large say in w h a t is done with t h e t h i n g t o which o n e has contributed (the child). Along these lines, it seems reasonable to suppose that parental claim rights could be derived as follows. The duty of natural parents to care for their child could be conceded to entail only a moral liberty to do so, which is in competition with the liberties of others to rear the child. In situations of competitive liberties, however, the rule to follow in establishing claims is "first come, first served" (see 3.5 and 5.2). T h e w a y one "comes first" is b y being t h e first to make things a part of one's projects or life plans: in the case of appro­ priating goods from the common, we "come first" by investing our purposive^ labor in the object (see 5.3); in the case of children, we "come first"'by making them parts of our lives. Since the nat­ ural parents (or, at least, mothers) are always (barring exotic tech­ nology) the first to perform significant acts of commitment and concern for the child (such as carrying it to term, laboring to give it birth, protecting it after birth, etc.), natural parents have first claim o n rearing their child (which is not the same as having prop­ erty in the child ). Children are not only a physical part of (one of their) parents; t h e y are a part of their lives. A n d since a child is best reared in a stable, dependable environment, those with the first claim should have the only claim, unless they forfeit or alienate 52

n

Why parents d o not o w n their children in Locke is not initially easy to see. Locke seems to answer that parents do not o w n their children because they didn't really make them (God did); but then the parents didn't realty make the vegetables in their garden either, over which they do have property rights. And they labored in both cases. A more convincing answer is offered by Becker ("Labor Theory," 657-58; Property Rights, 37-39): since property rights in external goods are justified by appeal to prior rights over our bodies (and our labor), or to our prior right of self-government (as I will argue in 5.3), property in external goods must be consis­ tent with these prior rights. Since owning other human beings is not consistent with their rights to their bodies and their rights of seif-govemm«nt, we cannot own human beings unless they have forfeited those foundational rights. Parents thus cannot have property in their children. Their claim rights over their children must be limited to that control consistent with their children's rights (see 4.3 below). 183

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it (thus enminating the possibility of others "getting their turns" to rear the child for a period). While this style of argument may be the best of those that ex­ tend a secular strand of Locke's thought o n parental authority,* the bases for several other arguments for natural parental rights are easy to find in Locke (even if they are far less compelling for most contemporary readers). Locke notes, for instance, both that God (the child's creator a n d owner) entrusts children to their par­ ents, m a k i n g them "accountable" to God for the care they bestow (II, 56), a n d that to " t e m p e r " parental p o w e r God h a s placed in parents "suitable inclinations of tenderness and concern" toward their children (I, 56; II, 63, 67, 170). The first point suggests that parental rights can also b e thought of as the rights of trusteeslimited claim rights granted in trust by the original rightholder or settlor (in this case, God). And the second point can form the basis for a plausible rule-consequentialist argument for parental rights (which, as w e saw in 1.4, also is ultimately tied for Locke to a di­ vine c o m m a n d morality, but which may be " d e t a c h e d " from such foundations by secular humanists). If the natural tenderness and concern of natural parents are likely (as a rule) to make t h e m the best rearers of their children (which is certainly Locke's view), then h u m a n k i n d will be best preserved if biological parents have first right to rear their o w n children. A d d to this the fact that any alternative noninstitutional child-rearing arrangements will in­ volve significant disutility (e.g., in the emotional costs of taking children a w a y from their natural parents), a n d w e have a reason­ ably plausible consequentialist argument for the same Lockean conclusion. 3

54

55

w

In the s e n s e that it is perfectly compatible with secular accounts of the duties of parents and the moral rights of others. See Blustein, Parents and Children, 11112. Whether or not it is true that natural parents are (as a rule) the best rearers of their children is discussed in Schrag, "Rights over Children," 99-100; and Schoeman, "Rights of Children," 11-12 I believe that it is true, although I will not here argue for the position. " Additional considerations concerning the value of the family and intimate re­ lationships can be adduced to support either the consequentialist or the deontologicaJ cases for natural parental authority. Schoeman, for instance, argues for "family autonomy" on the grounds that we ought to respect those relationships in which persons find meaning and intimacy (in this case, the natural family) ("Rights of Children"). And Schrag considers that rearing one's o w n children is "a great source of [the] happiness and dignity" of parents. An arrangement in which paren­ tal rights d o not fall first to the natural parents will both deprive them of these g o o d s and undermine "the intense passions that a close family life gives rise to Jwhich] are considered precious in themselves" ("Rights over Children," 101). Lomasky also takes account of the importance to parents of rearing their o w n children 184

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What of the other part of parents' right of tuition—their right to obedience, held against their children? Locke, as w e have seen, derives this " p o w e r of comrnanding'' (II, 69) from the duties of care that parents h a v e toward their children. Just as noninterfer­ ence by o t h e r s is necessary for parents to properly d o their childrearing duties, so is obedience by children. From the parents' duty of care is derived a right to do whatever is necessary to fulfill that duty. So parents h a v e a right to filial obedience (unless they forfeit it by abuse or are released from it), and children have a correlative duty of obedience (II, 6 7 - 6 8 ) . Now this attempted derivation of claim right from d u t y faces the same difficulties mentioned above. But there are additional rea­ sons to be skeptical about filial duties and parental rights of obe­ dience. Young children clearly lack filial duties of obedience be­ cause they lack t h o s e capacities necessary for rrunimal levels of moral responsibility, and consequently have no moral duties at all. Grown children lack duties of obedience because they have 56

57

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(Persons, Rights, 167). Other apparently consequentialist support for natural paren­ tal authority in fact makes that authority more customary than natural. For in­ stance, insofar as w e appeal to the unhappiness natural parents would experience (in having others rear their children), which is based on a frustration of expecta­ tions that are convention-dependent, w e make parental authority depend on the presence of those conventions that generated the expectations. An argument for parental rights that are natural in the full sense can appeal only to harms or bad consequences that are themselves not the result of the presence and operation of contingent practices o r conventions. Thus, Sommers, while rejecting relativism and accepting s o m e natural rights ("Filial Morality," 453), ultimately defends "special obligations" (and the parental authority that correlates with some of them) in a w a y that really renders them in part customary only. For her case depends in the end on an argument from "conventional expectations" (446-47). (Daniels accepts a similar account of filial obligations in Am I My Parents' Keeper? 112-13.) In the ab­ sence of the relevant (contingent) conventions, natural parents would not have a n y special claims on their children. The rights parents did have o n Sommers' account would be natural rights (in the sense given above in 2.3), for the ground would be given by a natural moral principle (with only the content of the right determined conventionally). But Sommers could not defend parental rights a s natural in the stronger sense Locke requires-^-namely, as rights possessed by all biological par­ ents. * Obedience to their parents' rational commands prepares children for learning to obey their o w n reason (Education, 36, 61,112). Again, Locke's line of reasoning here is duplicated by Blustein (and much earlier by Kant [Metaphysics of Morals, part 1, section 29]). ^Blustein, Parents and Children, 1 6 8 - 7 2 . Children's duty is, according to Blu­ stein, really best thought of as o w e d to children themselves, and to the parents only as "temporary trustees of the child's welfare" (169). Since children cannot release their parents from their parental duties, they have "a duty to facilitate or at least not prevent" their parents' discharging their duties (i.e., they must obey their parents) (171). " See Tarcov, Locke's Education, 4, 74. 185

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the same rights a n d duties as a d u l t s . Only for children w h o are capable of understanding moral concepts a n d controlling their ac­ tions, b u t w h o are n o t yet mature, fully rational, or fully in control, does the ascription of a duty of filial obedience seem initially plau­ sible. A n d Locke acknowledges that even in these cases, the duty is limited: " w e are no doubt b o u n d to comply with the orders of parents, b u t only in things lawful" (ELN, 203). Children h a v e n o duty to comply with immoral commands Or with c o m m a n d s that conflict with the requirements of binding civil law (and parents may forfeit their rights of obedience if they issue such c o m m a n d s frequently). 60

These facts may lead us to question w h e t h e r even in other cases children have a moral obligation to obey parental c o m m a n d s . Even w h e n parents command things that are neither immoral nor ille­ gal, parental c o m m a n d s can still be unnecessarily restrictive, arbi­ trary, unreasonable, a n d pernicious. Children clearly do n o moral wrong by reading Darwin in secret, contrary to their fundamen­ talist parents' orders (or by reading Huckleberry Finn if their parents are [misguidedly] liberal). Obviously, parents often command their children to do w h a t is best (or at least good) for the children as well. But d o we really w a n t to say in these cases that the reason w h y children ought to do w h a t they are told is "that their parents ordered them to"? Surely children ought to do w h a t is best (or good) for them because it is best. We can allow that parents may reasonably specify the precise boundaries of vague issues concern­ ing w h a t is best (e.g., whether staying out too late, which is objec­ tively bad for the child, means being h o m e after 11:00 or 12:00 or 1:00). But this is far from acknowledging a general parental right to obedience. Children often act wrongly in disobeying their par­ ents. But the wrongness of their conduct seems to b e explained by reasons that have force independent of any reasons for acting that the c o m m a n d itself might give. The w r o n g n e s s is n o t a simple 61

OT

I will not comment here on exactly what qualifies a child as "young" or "grown." On these matters, see m y "Obligations of Citizens," 77-78; Blustein, Par­ ents and Children, 1 7 0 - 7 1 ; Woozley, Law and Obedience, 66-67; Slote, "Obedience and Illusions," 120. Blustein, Parents and Children, 171-72. Insofar as the parents' right of of obedience is derived from their duty to care for children, it can at best be a right to obedience that is genuinely needed for doing parental duty. This seems likely to limit severely the scope of children's obligations to obey (to matters in which there are independent reasons for children to act as commanded). More obedience from children than is strictly needed by parents might be wanted by the parents or convenient for them, but they have no right to it simply on the strength of their parental duties. M

61

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function of a parental conurtand having been disobeyed. Parents can, of course, sometimes command their children paternalistically (indeed, it is their d u t y to d o so). But this hardly s h o w s that disobedience to; their commands is w r o n g . In fact, it shows that this is not t h e case, since paternalism is r^rmissible only toward those w h o are n o t fully responsible for their actions, a n d conse­ quently only t o w a r d those w h o cannot act wrongly (at least in the matter in question). A s long as they need their parents' care and support, of course, children may b e prudentially "obliged" to obey parental orders (whatever their virtues). A n d children will often want t o please a n d i m p r e s s their parents with obedience, espe­ cially w h e n parents are loving a n d reasonable in their d e m a n d s . But Locke's worries, about the force of unlawful parental com­ mands should, I think, p u s h us naturally to question the whole idea of a general filial d u t y and parental right of obedience. I turn n o w to t h e ' s e c o n d (class) of Locke's parental rights— rights of honor, rights based in parental provision of benefits to children d u r i n g the process of child-rearing. Parents have, w e have seen Locke claim, a right to be revered a n d respected for the benefits they h a v e bestowed, to be s h o w n gratitude a n d sup­ ported materially (where necessary a n d possible) by their grown children. The "specific" return that is o w e d b y children is what­ ever is appropriate t o the benefits, care, and sacrifices that the par­ ents provided (took^made) for their children. This return is w h a t is due "in justice" (I; 90) or, more accurately (and following Aqui­ nas), as " g r a t i t u d e " (II, 68, 69) for past parental performance. 62

63

u

Slote and Wdozley (see note 59 above) seem to agree that there is n o general parental right of obedience: Becker, by contrast, tries to derive this right from the parents' right to restrict bbligatory filial reciprocation (for parental benefaction) to obedience (Reciprocity, 213-15). This makes the parental right t o obedience a matter of return for benefits (much as Locke derives filial duties of (limited) obedience for grown children from their duty of honor (II, 68). Because of my doubts (expressed below) about extensive filial duties to reciprocate for parental benefaction, how­ ever, I think Becker's account is bound to fail as an account of a general parental right. M y discussion here has, of course, left unanswered many vexing questions about parental rights of tuition—for example, the specific content of their rights with respect to educating their children, training them in a religion, seeking medi­ cal treatment for them (if, say, the parents are Christian Scientists), and so on. Lockean answers to all of these questions must proceed by allowing parental dis­ cretion in s u c h matters only w h e n this is consistent with the child's successful de­ velopment into a rational, autonomous adult, capable of living a free and happy life (as, for instance, denying the child needed medical treatment for parental reli­ gious reasons would seem not to be). w

See Wicclair's distinction between "duties of indebtedness" and "duties of gratitude," a n d h i s convincing argument that w h a t w e o w e our parents must be thought of as a duty of gratitude ("Caring for Frail Elderly Parents," 174-76). I will 187

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Just which benefits Locke has in mind as t h e g r o u n d of the filial debt of gratitude is not as clear as w e might like it to b e . H e men­ tions that the child receives "life a n d education from his p a r e n t s " (II, 170); a n d earlier " h a p p i n e s s or life" (H, 66; or p e r h a p s only "life"), education (II, 68), a n d " t h e highest benefits h e is naturally capable of" (II, 69) are referred to. But of life a n d education as parental benefits, Locke clearly h a s d o u b t s a b o u t at least the for­ mer. For he acknowledges that merely begetting a child gives a father n o power at all over the child (II, 65). A n d w h e n w e remem­ ber that it is God, n o t the parents, w h o really gives life to the child, Locke's reference to life as a benefit b e s t o w e d b y parents seems curious indeed. Locke's doubts about life as a benefit for w h i c h children owe a return to their parents seem sensible, even forgetting God's role in his theory. For while others have certainly defended the view that the gift of life g r o u n d s filial d u t i e s , it is a view beset with quite obvious difficulties. In the first place, of course, w h e t h e r or not life is a benefit d e p e n d s very m u c h on the quality of that life, o n what else parents provide for their children. As Sidgwick p u t s it, "It may be said that a child o w e s gratitude to the authors of its exis­ tence. But life alone, apart from a n y provision for making life h a p p y , seems a b o o n of doubtful value, a n d o n e that scarcely ex­ cites gratitude w h e n it was n o t conferred from any regard for the recipient." A d d to this the fact that " w e w e r e certainly n o t the beneficiaries in the sense that we w e r e m a d e better off for getting [life] than we w o u l d otherwise have been: for w e would not other­ wise have been at all. Of course it also follows that the benefit in question is nonrefusable."* If w e s p e a k n o t of life itself, b u t of our 64

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6

not try to deal here with alternative (and, I think, less plausible) accounts of the bases of parental rights. Some (e.g.- Sommers) make these rights depend on the presence of certain conventions or customs (see note 55 above). Others ground some parental rights (under general duties of beneficence) in the parents' need for h e l p (Daniels, Am 1 My Parents' Keeper? 32). Still others ground filial duties (and parental rights) in the presence of intimacy, friendship, or understanding between parents and their children (English, "What Do Grown Children O w e Their Par­ ents?" 353-55). See m y criticism of this last approach in "Obligations of Gtizens," 79. Classically, Aristotle and Aquinas (among many others) held to it. And re­ cently Belliotti has argued for a moral requirement of "care" toward those w h o help form our identities; since "my biological parents' genetic contribut [sic] provides a most enduring aspect of w h o T am, I o w e them certain moral requirements" ("Honor Thy Father," 153). Narveson subjects this position to convincing criticism in the article referred to below. w Methods of Ethics, 248n. ** Narveson, "On Honouring Our Parents," 75; s e e also Jecker, "Are Filial Duties Unfounded?" 74. M

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specific genetic e n d o w m e n t s as the benefits for which w e should be grateful, similar responses seem appropriate. To which w e can add that our parents, lacking any real control over h o w w e turn out, cannot really h a v e tried to endow u s in any particular w a y . Finally, it s e e m s clear that n o n e of these benefits (life or genetic endowment) w a s initially given to us in a way that involved a n y sacrifice on o u r p a r e n t s ' parts. It may even have been (indeed, w e hope that it was) a pleasure, or worse, an accident. Any parental sacrifices come later t h a n the initial "gift" of life a n d g e n e s . But if life (and genes) is, as Locke saw, a dubious benefit o n which to base parental rights and filial duties, it is also the only benefit given by all parents to their children, b e y o n d this, all other parental provision of benefits is quite variable. A n d if filial duties are to be proportionate to parental benefaction, it follows that some children will o w e quite extensive debts to their parents while others will o w e n o t h i n g at all (which seems, in the e n d , to b e Locke's real view, if, p e r h a p s , one to which h e was pushed reluctandy). The central question about the filial duties of grown chil­ dren (and about £he parental right of honor), then, will be a ques­ tion of which benefits children are thought to owe a return for. And we have already seen some suggestions of general rules w e might apply in deciding. A return is owed only for those benefits: which are given with "regard for the recipient"; which are refusable; which are given intentionally; which are given at some cost to the giver. These (and other) conditions on "debts of gratitude" are normally cited by those w h o resist a/together the idea that parental benefaction g r o u n d s filial duties of reciprocation; o n these views parental benefits simply fail to satisfy the conditions u n d e r which such duties might b e generated. Those w h o think that parental sacrifices a n d benefits conferred on children are morally important 67

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Narveson, "On Honouring Our Parentis," 7 5 - 7 6 . ** If the benefit conveyed by the "gift of life" is alleged to be a soul, of course, although the benefit is no doubt precious, the relevant benefactor is quite clearly God, net ourparents. ** See Daniels, Am 1 My Parents' Keeper? 31. English argues that parental sacrifice and benefaction are irrelevant to filial du­ ties because only requested favors (not voluntary sacrifices) ground an obligation to reciprocate ("What D o Grown Children O w e Their Parents?" 352-55). Slote is skeptical about "any moral duty to show gratitude for benefits one has not re­ quested" ("Obedience and Elusions," 320). And Blustein thinks both that "if par­ ents have any right to repayment from their children, it can only be for that which was either above and beyond the call of parental duty, or not required by parental duty at all" (Parents end Children, 182); and that "it is also necessary that the benefits received be voluntarily accepted" (which "young children a n d infants" cannot do) (183). 70

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{in grounding filial duties), generally resist (or ignore) the idea that these sacrifices and benefits are disqualified by such conditions. 1 have elsewhere explored at some length the limits on debts of gratitude a n d the conditions u n d e r which they may a r i s e . That analysis suggests that the standard blanket objections to filial du­ ties of reciprocation for parental benefaction are misguided. While it is true that provision of benefits will create reciprocal obligation only w h e n benefits are provided intentionally, out of regard for the beneficiary, a n d at some cost to the benefactor (etc. ), these conditions are normally satisfied in the parent's provision of ben­ efits to the child. Further, the mere fact that the benefits parents provide are nonrefusable or not voluntarily accepted by children is not sufficient to show that these benefits do not require a r e t u r n . Nor does the mere fact that parents have a duty to provide m a n y of these benefits disqualify t h e m . But this second concern comes closer, in m y view, than the first to identifying the real problem with parental benefits (as a source of filial duties). T h e care, attention, education, support, a n d healthy environ­ m e n t good parents provide for their children are undeniably real benefits that are typically supplied out of concern for the children a n d at considerable cost a n d effort on the parents' part. It is also clear that it is the parents' d u t y to provide at least m a n y of these goods (see 4 . 3 below). But that it is the parents' duty to benefit their children in these ways does not by itself show that the chil­ dren do not, as a result, have filial duties to reciprocate. Some­ times duty-meeting beneficial action requires reciprocation, some­ times it does not. If you are drowning a short distance from the pier a n d I ruin m y new suit or incur some injury while saving you, few w o u l d maintain that you owe me nothing. Perhaps paying for the suit or tending to the injury would be appropriate as a return; if a serious risk w e r e involved, perhaps more of a return would be fitting (if it w e r e possible a n d agreeable to the benefactor). But w h a t is dearly true as well of the situation described is that I did 71

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A m o n g those w h o think parental sacrifices and benefits are important in this way are Sidgwick (Methods of Ethics, 248), Becker {Reciprocity, 210-11), Narveson ("On Honouring Our Parents," 74), Woozley (Law and Obedience, 6 5 - 6 6 ) , Belliotu' ("Honor Thy Father," 151, 153), Sommers ("Filial Morality," 446-47), and Lin Yutang ("On Growing Old Gracefully," 457). Moral Principles and Political Obligations, chapter 7 (esp. 1 6 3 - 83). See ibid., 178 - 79, for a full statement of (at least some of) the conditions in question. * Contrary to the suggestions of Blustein, English, and S i d e . See also Wicclair, "Caring for Frail Elderly Parents," 165-67. Contra Blustein and Daniels (Am I My Parents' Keeper? 30). 72

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no more t h a n ' m y duty in saving you. H a d I ignored your plight (perhaps out of concern for my suit), I would have been open to the most severe moral condemnation. There are, then, familiar cases in w h i c h the provision of benefits that it is our duty to pro­ vide nonetheless grounds obligations to reciprocate. There are ob­ viously other kinds of cases in which it does n o t . If I have a duty to pay you $10 (because I earlier borrowed it from you), you surely are not b o u n d to reciprocate w h e n I give you the $10. Now, which of these k i n d s of cases resembles that in which parents benefit their children (as they are duty-bound to do)? Any resemblance must surely be,to the second case, for w h a t is striking about the benefits parents provide is that the parents have themselves cre­ ated the n e e d s these benefits satisfy (by creating the child w h o has them). Parents p o t only have a duty to care for their children but are (normally) morally responsible for the necessity of caring for them. It is as if, instead of just pulling you from the water, I had first p u s h e d you in (accidentally or intentionally), making m e re­ sponsible for y o u r need. In such a case, it is far less convincing to claim that anything is owed me as a benefactor; a n d by analogy it is unconvincirig to insist that filial obligations arise from routine cases of parental benefaction. 76

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More, t h e n , than simply caring for a child and seeing that its needs are met will be necessary for the generation of filial obliga­ tions. Perhaps extraordinary sacrifices by parents (those beyond the requirements of parental duty) will make a difference. A n d certainly nonbiological parents (or, say, victims of rape), w h o have voluntarily taken o n a child's care (when not duty-bound to do so) 1

n

See m y Moral Principles and Political Obligations, 1 7 9 - 8 3 , for a fuDer discussion of these matters, Jecker argues that if a benefit is o w e d another as a matter of duty, no debt of gratitude will arise from its provision unless the benefit is very valuable, very burdensome to provide, provided in some praiseworthy way, or includes with it some supererogatory element ("Are Filial Duties Unfounded?" 7 4 - 7 5 ) . Becker criticizes m y analogy, suggesting that "the more apt (but still not quite right) analogy is the case i n which 1 resuscitate you, thus creating an opportunity to live, and since the situation into which I have brought you is temporarily a per­ ilous one (lefs say w e are stranded on an island), I take care of y o u until you are strong enough to fend for yourself. Obligations of reciprocity are perfectly intelli­ gible in such a case, and also in the case of parent-child relationships" (Reciprocity, 396). But here the debt is at least partly o w e d for the resuscitation (and w e have seen that the analogous "giving of life" to the child cannot plausibly be taken to ground a debt). Further, the benefactor in Becker's case is not responsible for the "perilous" situation in which the beneficiary awakens (as the child's parents are); if Becker's benefactor were responsible (say, the benefactor had kidnapped the per­ son needing resuscitation, or wrecked the person's boat), our judgment of the ben­ eficiary's duties would be very different. 1

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will b e o w e d m o r e b y their children than others would b e . Even the "gift" of firm b u t loving guidance, so seldom a n d with such great difficulty given by parents but so crucial to the child's psy­ chological well-being a n d potential for happiness, may (in con­ junction with more routine benefits) g r o u n d special filial obliga­ t i o n s . This seems to m e to be the proper explanation of the relevance of love to the moral component of the parent-child rela­ tionship. Genuine parental love, understood here as a d e e p emo­ tional cornmitment to a painstaking a n d disciplined pursuit of the child's long-term happiness, is so difficult to give fully a n d wisely that it m a y count as the kind of benefit that is not simply a straightforward requirement of parental responsibility. If this is so, then filial obligations m a y be generated by the parent/s loving care (although, as mentioned above, in the ideal parent-child relation­ ship the child will n o t be motivated by a n y sense of d u t y or obli­ gation). 78

The resulting position on parental rights a n d filial duties is not Locke's, but it can plausibly be described as Lockean, for it is mo­ tivated b y concerns about and limitations o n Locke's position that he himself expressed. Parental rights (and filial duties) are, on this account, less extensive than those suggested in the Treatises (there being n o right to obedience, per se, or to a return for routine, obligatory provision of benefits). But it remains true that natural parents have a special (if limited a n d defeasible) claim to rear their own children, and that filial duties will be in some measure pro­ portionate to the extent of parental care. Since (as far as I can see) the portions of Locke's position that are altered are less central to his overall stance t h a n are those w e h a v e preserved, the revised account can be accepted as part of a more defensible Lockean moral theory (i.e., as part of the Lockean theory of rights).

4.3, The Rights of Children (and the Duties of Parents) I turn n o w to the " o t h e r side" of the parent-child relationship. Locke does not refer often to the rights of children, but both of the 7 8

We may thus both d o our duty (for which no return is owed) and do more (for which it is) at the same time. Becker has also (incorrectly) criticized m y account for ignoring this fact (Reciprocity, 395). See Moral Principles and Political Obligations, 180, for earlier comments on this point, and 1 8 2 - 8 3 for a brief discussion of the rele­ vance of love to filial duties. I have, of course, made no efforts here to be very precise about which benefits parents o w e their children as a matter of duty and which benefits g o beyond parental duty, but have been content to suggest some broad guidelines. On the difficulties of precisely marking this distinction, see Wicciair, "Caring for Frail Elderly Parents," 168 - 69. 192

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Treatises contain a few brief remarks o n the subject. The primary rights of children seem to be t w o . First, children have "a right to be nourished a n d maintained by their parents, nay a right not only to a bare subsistence'but to the convenience a n d comforts of life, as far as the conditions of the parents can afford it" (I, 89; see also 1,90; n, 78,183). Thisright lasts until children "are able to provide for themselves" (EC, 78). Second, and "founded i n " the first right (1,97), children 'Tiave a right of inheritance to their father's prop­ erty" (I, 93; see also I, 88; II, 190) (about which I shall say no m o r e until section 4). Locke also mentions that the child m u s t b e al­ lowed " t h e privilege of his nature, to be free" (H, 63,190). By this he seems to m e a n that children have a right not only to be kept comfortably alive, b u t to be reared in such a way that they will one day become responsible, rational agents (as w e saw in 4.2). This means that they m u s t be taught self-control, moral sensitivity, re­ spect for reason, a n d so on. Children have rights (property), u n ­ like lawful slaves; b u t the child is "incapable to manage h i s p r o p ­ erty" (H, 174). Contemporary philosophers have recognized the difficulties in ascribing rights to infants a n d young children, w h o seem unable not only to " m a n a g e " their rights, but to assert, waive, or even understand their rights. H o w can one w h o lacks even a rudimen­ tary u n d e r s t a n d i n g pf the significance of moral rights a n d duties be said to b e a righthplder? The whole point of rights seems to be to protect the pursuit, of values a n d plans (2.2) that the infant lacks altogether. A similar tension concerning children's rights can b e observed in Locke's work. Locke often writes as if there are t w o classes of beings in the world—those w h o are u n d e r the law of nature (to w h o m the law is given or promulgated), a n d those w h o are not u n d e r it. Members of the former class—persons or "men"—have t h e rights a n d obligations d e n n e d b y the law of na­ ture. Members of the latter class do not have either. But things cannot really b e so simple for Locke, for there are at least four distinct groups of beings w h o are said at various times not to be under the law,. b u t w h o seem to have quite different rights and duties. First, w e have the "inferior" lower animals, "terrestrial ir­ rational creatures" (I, 27), w h o have been given by God to man­ kind in common (H, 26; I, 24-29, 38-40, 60, 87). Lacking reason, they cannot b e given the law (which is promulgated through rea­ son), a n d s o they h a v e neither rights nor duties. They can neither do wrong nor b e w r o n g e d . Second, we have the warmakers a n d 79

" I will not even try to discuss here whether or not this view of the lower animals 193

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lawful slaves (captured warmakers) w h o have quit the law of rea­ son a n d forfeited all rights u n d e r it, making themselves like nox­ ious beasts of prey (II, 16, 85, 172-73, 181). They are also said to be n o longer u n d e r the law (II, 16). But it is doubtful that Locke intends to say that they, like lower ariimals, also lack duties. May people free themselves of all moral requirements by committing an awful crime, u n d o i n g the wrongness of all future crimes b y com­ mitting a great e n o u g h crime in the present? 1 suspect Locke would say (although he nowhere does say) that warmakers and slaves have few or n o rights, but that they do have (at least some) duties. Third, we have those suffering from "defects," w h o cannot now a n d m a y never be able to know the law or b e guided b y i t lunatics, idiots, innocents, and the insane (II, 60). " N o b o d y can be u n d e r a law which is not promulgated to nun; and this [natural] law being promulgated or m a d e k n o w n by reason only, h e that is not come to the use of his reason, cannot be said to be u n d e r this l a w " (II, 57). Fourth, children are not under die law of nature (II, 59 - 60), until maturity brings the understanding a n d control (rea­ son a n d will) that make t h e m free. We seem, then, to have at least two groups of beings w h o are not u n d e r the law of nature, b u t nonetheless have either duties (warmakers) or both rights and duties (children). H o w can this be explained, assuming (as Locke certainly seems to) that it is the law of nature that specifies all moral rights and duties? If warmakers a n d children were not u n d e r the law in the way that animals are not u n d e r it, w e would seem to be allowed to confine, breed, a n d eat them, make clothes of their skins, and so on. Is there then more than o n e way to not b e under the law of nature? It might seem at first as if the answer must lie in the rights a n d duties of those w h o are u n d e r the law. For if peaceful persons h a v e rights not to be harmed, must not warmakers have duties to re­ spect those rights? A n d if parents have duties to care for their chil­ dren, cannot the rights of children merely be the logical correlates of these duties? But this line of reasoning takes us nowhere, of course, for from our rights not to be harmed it in no way follows that tigers (who are not u n d e r the law) have duties not to h a r m us. Nor does our duty to care for a thing (e.g., another's pet or plant) entail that the thing cared for has a right to that care. The logical correlativity of rights a n d duties h o l d s only insofar as d u is correct. But it is worth noting that many ways of defending children's rights also entail rights for at least some of the lower animals. 194

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ties are owed to other persons (and rights are held against other persons), a n d our question is precisely one about whether moral relations can hold between persons a n d those not u n d e r the law. Perhaps w e can appeal to the potential personhood (agency, ra­ tionality) of children to explain w h y they have rights without be­ ing u n d e r the law n o w (as so m a n y more recent philosophers have done). Children are, after all, " b o r n t o " reason, freedom, and equality (II, 55>-61). But this line of argument seems to be closed to Locke, for it seems to divide u p the groups of beings not u n d e r the law in the w r o n g way. Ariimals lack this potential (on Locke's view), a n d so w o u l d n o t b e rightholders according to a potentiality argument. But t h e same argument would seem to place m a n y lu­ natics, idiots, innocents, a n d the insane (i.e., those w h o also lack potential) in t h e same moral camp with animals. Worse, it would also seem to make rightholders of warmakers a n d slaves, at least many of w h o m surely do have t h e potential to recover their ratio­ nality (as Locke can b e taken to concede in his recognition that a lord can make a bmdirig contract with his slave, thereby releasing him from his rightless condition). So warmakers would seem to fall in the same .moral camp with children, contrary to Locke's re­ peated claims that while warmakers h a v e forfeited all rights, chil­ dren have rights. ,\\ The likeliest explanation of w h y h u m a n beings not u n d e r the law seem t o nonetheless be allowed some moral standing in Locke, while ariimals (equally n o t u n d e r the law) are not, is that human beings.are mlade by God in His own image, while animals are m a d e b y God for our use. This, of course, does not explain how beings hot u n d e r . t h e law can have rights a n d duties; b u t it may explain Locke's reluctance t o class together all beings w h o are not u n d e r the law. But even on this theological model, things are far from clear. For "wherein soever else the image of God con­ sisted, the mtellectualjnature was certainly a part of it" (I, 30). This would seem to imply either: (a) that those with no current "intel­ lectual n a t u r e " (aniqials, children, warmakers, idiots) are not in God's image, a n d can b e classed together, or (b) that those with no intellectual potential (most animals and idiots) are not in God's image, while those w i t h it (most children a n d warmakers) are. So on the theological model, the problems above are merely dupli­ cated in n e w terms'. 80

;

Of the three g r o u p s of h u m a n s said by Locke not to be u n d e r M

For a reading of Locke in these terms, see Glenn, "Inalienable Rights," 94. 195

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the law, warmakers are probably the easiest to deal with from a Lockean perspective (although we m u s t in some w a y s revise w h a t Locke actually says). Warmakers are those w h o have been given the law, a n d hence remain bound by its duties, but w h o have freely (and culpably) chosen to disregard the law in the most seri­ ous fashion. In t h u s taking advantage of the obedient behavior of their fellows, they forfeit their rights, but not their duties, u n d e r the law's protective scheme. They t h u s remain b o u n d to comply with the law's requirements, but may be legitimately confined at hard labor (enslaved) or p u t to death (if required for the safety of others). We need not s u p p o s e , with Locke, that warmakers forfeit all rights. Locke seems to have thought that if one forfeits the right not to be killed, one must in the process have forfeited all other ("lesser") rights. He is far from alone in this view. But w e may allow, contra Locke, that the warmaker retains at least some rights (e.g., the right not to be cruelly degraded), even while losing the rights not to be killed or used for labor. ' Warmakers remain mor­ ally considerable beings on this account, a n d d o not really qualify as beings w h o are not u n d e r the law of nature at all. 8

Children a n d idiots are harder to deal with in a way true to the spirit of Locke's claims. O n e thing that seems clear about chil­ dren's rights, however, is that Locke almost always speaks of them simply as the logical correlates of parental duties. Parents, Locke tells us, are "by the law of nature, u n d e r the obligation to pre­ serve, nourish, and educate the children they [have] begotten" (II, 56; see also II, 60, 67; I, 56, 88). A n d it is almost always in the context of such claims about parental duty that Locke goes o n to speak of the rights of children. Children have, as a consequence of parental responsibilities, "their kind of right" (I, 88; m y empha­ sis) to be preserved and supported. Notice that there is in the Trea­ tises (as far as I know) no passage in which Locke mentions the rights of children held against the world—for instance, rights not to be killed, assaulted, raped, and so on. The picture that s e e m s to emerge is one of children with quite limited rights only against their parents, but with n o n e of the more general equal rights against one another possessed by mature persons. If this is indeed Locke's view, we m a y begin to w o n d e r w h e t h e r Locke needs to defend children's rights at all, or w h e t h e r h e might 1,1

This s e e m s to be the idea, for instance, behind the restrictions on capita] pun­ ishment to those forms that are not "cruel and unusual," and the bans on torture, public displays of punishment, and the like, even in the cases of those acknowl­ edged to deserve death.

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not simply leave d u l d r e n in t h e class of beings with n o rights or duties. For the objects of the child's rights of which Locke speaks (nourishment, maintenance, education) are things that it is the natural p a r e n t s ' d u t y ' t o provide. Even, then, if children h a d n o rights, w e could still defend the claim that failure to provide t h e m with nourishment (etc.) was wrong (although w e could no longer say that this w a s o w e d to the children themselves). A n d w e could still explain w h y it i s wrong for others to harm children, for to harm t h e m w o u l d b e a w r o n g d o n e both to their parents (who have the right to control them) and to God (who is the owner of the children). But onijthis account of matters, it is initially hard to see w h y parents should be taken to have duties to the nonpersons (nonrighfholders) they bear. We have no duties toward other kinds of n o n p e r s o n s (rocks, trees, animals, etc.)- Why should our children be any different? Locke, of course, has at least two an­ swers to this question. First, God has entrusted the child to the care of its natural parents. H e has "laid o n m a n " a duty to pre­ serve offspring (II, 6u, 63; I, 89) a n d m a d e u s accountable t o Him for their safety (H, 56). Parents are m a d e by God "instruments in his great design of ccmtmuing the race of mankind'' (H, 66). Par­ ents thus have a d u t y owed to God to care for their children, much as a babysitter h a s duties t o parents. Second, however, Locke's language frequently suggests that natural parents are responsible for caring for the children they beget because it w a s their free act that brought a n e e d y individual into the world (e.g., I, 8 8 - 8 9 , 93; II, 80). Parents have done something that makes them responsi82

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There are, of course, straightforward implications of his commitment to chil­ dren's rights for. Locke's political philosophy: for example, (a) if children have rights, parents d o not have absolute authority over them; it is then impossible to argue (with Filmer) that the king has absolute authority over his subjects because h e has paternal authority over them; (b) if children have rights, conquerors (even just conquerors) cannot gain absolute authority over a whole people by the use of force; for while the conqueror may gain absolute authority over those w h o aggress against him, the rights of the aggressors' children limit the authority h e can ac­ quire. But I think that Locke could probably still defend these aspects of his political theory without appeal to children's rights, by arguing (a) that parents have duties toward their children (laid o n them by God), and (b) that the rights of aggressors' wives (and those of other nbnccmbatants) limit the just conqueror's authority. Animals, of course, were also originally owned by God. But they may be harmed where necessary, because God gave them to us for our use. Nothing made by God may be harmed or destroyed needlessly. But God may be understood to have given His permission to constrain or to destroy things where it is necessary for our best preservation. Thus, children may not be harmed or killed (it not being necessary to humankind's effective preservation). But animals and (sometimes) warmakers may be harmed (where failing to harm endangers oneself or others). a

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We. N o w either of these two answers looks sufficient b y itself to explain parents' duties to their (nonperson) children. G o d ' s as­ signing duties of child-rearing (the first answer) w o u l d b e ade­ quate to explain parental duties even if the parents h a d d o n e noth­ ing (even if the conception h a d been "immaculate/' or a stork h a d left the child on their doorstep). But only the second a n s w e r could bear a n y weight in a secular Lockean account of family morality; so it is worth considering the second answer a bit further. I suggested above (4.2) that parents are (normally) morally re­ sponsible for meeting their children's needs, having created the children w h o have those needs. This is more than a claim of causal responsibility (which can be m a d e about all natural parents). It is rather a claim that by creating a needy and d e p e n d e n t child through one's voluntary actions, one creates as well a moral duty for oneself to care for the child. We bear moral responsibility even for the unintended or undesired consequences of our voluntary actions, provided these consequences are reasonably foreseeable. As Kant p u t s it, w e have brought children into the world without their consent." O u r actions p u t children at risk, bringing t h e m laden with needs into an inhospitable environment. Parental duty is not just a special case of the general duty to give aid to (or not to harm) others, which the biological parent just h a p p e n s to b e in a better position than a n y o n e else to discharge; nor is it just a case of a duty to help those w h o are d e p e n d e n t on u s . Parental 5

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Locke sometimes seems to suggest a third answer: that parents must preserve their children because children are "a part of themselves" (I, 97), and parents are "by a like obligation bound to preserve whal they have begotten, as to preserve themselves"(I, 88). 1 d o not here discuss this suggestion, for it w o u l d s e e m to in­ volve claims of parental property in the child that are inappropriate for Locke. Kant, Metaphysics of Morals, part 1, section 28: "the act of generation [is] a pro­ cess by which a person is brought without his consent into the world, and placed in it by the responsible free will of others." For a sb'ghtly more sinister reminder of the duties of creators, recall the monster's words in Mary Shelley's Frankenstein: "You, m y creator, detest and spurn me, thy creature, to w h o m thou art bound by ties only dissoluble by the aruuhilation of one of us. . . . D o your duty towards me, and 1 will d o mine towards you and the rest of mankind" ([New York: Bantam, 1981], 83). Sidgwick notes that parental duty may be "partly" accounted for by "duties arising out of special needs": "the parents, being the cause of the child's existing in a helpless condition, would be indirectly the cause of the suffering and death that would result to it if neglected." But h e also acknowledges that this general duty cannot fully serve "as an adequate explanation of parental duty" (Methods of Ethics, 249). Parental duty must be understood as a special moral bond. See Wicdair, "Caring for Frail Elderly Parents," 1 7 0 - 7 1 . K

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Blustein bases parental duty primarily on the duty to satisfy the needs of those dependent on one (Parents and Children, 116-17). But he sees that this cannot de­ termine w h y the parent is specially bound. We can add that dependency is a more 198

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duty is n o t a general natural duty w e have the bad luck to be called to perform (like t h e solitary walker o n the beach w h e r e another is drowning). It is a moral requirement based in a special relation­ ship established b y p a r e n t s ' voluntary actions, analogous some­ times to a contractual duty of care, sometimes to the d u t y (of rep­ aration) w e create for ourselves by carelessly harming another, and sometimes to t h e duty (of extensive care) w e create for our­ selves b y secluding a n i n j u r e d p e r s o n (and t h u s preventing others from helping to give care). * Many such voluntary actions b y par­ ents are not at all like promises or comrnitments; they may b e per­ fectly unintentional. But like promises a n d commitments, they ground special moral requirements. 8

We can describe a rough range of cases a n d the corresponding kinds of responsibility grounded in parental acts (or nonacts). Thus, at o n e extreme w e have cases involving fully informed, fully voluntary decisions to procreate (or to assume responsibility for the care of a child—as with step-parents, adoptive a n d foster par­ ents, or guardians). H e r e the parental duties that result most clearly resemble those resulting from other voluntary undertak­ ings of obligations. Next, we have cases w h e r e the child's con­ ception resulted from carelessness or "bad luck," w h e r e this Con­ 89

or less interesting moral property depending on how one came to be dependent. Becker criticizes dependency accounts like Blustein's (he also criticizes voluntarist accounts, although the sort I sketch below seems untouched by his complaints) (Reciprocity, 200-201), In American law, o n e can be obligated to rescue or care for another in all of these situations: if there is. a valid contract requiring care, if one puts another in peril by one's o w n careless act, or if one secludes a person in need from others. " O'Neill, "Begetting, Bearing, and Rearing," 26.1 am less inclined to agree that not aborting a child counts' as a voluntary undertaking of duties (as Ruddick seems to suggest in "Parents a n d l i f e Prospects," 27), particularly in cases where initial conception involved force or deceit. Blustein argues that the decision to procreate only counts as an undertaking of responsibility in the context of societal expectation of child-rearing by biological parents. Similarly, the consequence of the child's eventual need for parental care only counts as reasonably foreseeable (my second kind of case, below) where society makes n o alternative arrangements for rearing children (Parents and Children, 144-56). This seems to m e to place too strong an emphasis o n custom in explaining parental duty. Societal practices may relieve nat­ ural parents of the responsibility of care for their children (by society's undertaking to replace natural parents, as adoptive parents do). But parental responsibility does not depend on the absence of such practices. If a couple decides to have a child (and conceives it) in a society that practices communal child-rearing, but are later stranded o n an island (with several strangers) and give birth, it would be hard to argue that they have n o more responsibility for (or rights over) the child than the strangers with w h o m they are stranded. The decision to procreate commits one to caring for the child "until relieved" (which relief one may have a reasonable, but defeasible, expectation of receiving). w

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sequence w a s an u n i n t e n d e d but foreseeable possible result of voluntary acts aimed at some other e n d (e.g., sexual gratifica­ t i o n ) . H e r e again, there seems little doubt that the acts are of a type that often ground special responsibilities (as in the case of civil liability for negligence). One's voluntary actions risk even­ tually putting another (the child) at peril. In a third class of cases, such as t h o s e involving force, rape, or deception, conception is not a result of voluntary acts (or ones with foreseeable risks) at all, for one party. But in such cases, the other party (the aggressor or de­ ceiver) d e a r l y is responsible for the child's eventual predicament, h a v i n g acted recklessly or negligently with regard to the concep­ tion (and possibly also wrongly with regard to the sexual act it­ self). We can, finally, imagine a fourth d a s s of miraculous (or sdence fiction) cases in which conception results from n o one's risky voluntary a c t s . In such instances, the natural " p a r e n t s " (i.e., 90

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nppfiti and pp,n V I M I I H I M I I I M H ) wmiM h n v P itti inorp impotinihlHtlttu for t h e child than would any unrelated person, confronted with a child in need (i.e., only general duties would apply). It is natural to ask in response to such a voluntarist account of s p e d a l parental duties: to w h o m are these duties owed? In Locke, of course, w e have the same moral overdetermination here that w e saw in examining the ground of parental duties. Parental duties are o w e d both to God (as settlor) and to the child (as another rightholder). In a secular Lockean account, however, the first answer is d o s e d to u s . A n d if w e try to do without children's rights in our account altogether (as w e began by trying to do), the second an­ s w e r is closed as well. Parental duties, as a result, will seem to be o w e d to n o one—neither to the interacting parry (as in the case of s p e d a l duties) nor to h u m a n k i n d as a whole (as in the case of gen­ eral duties)—and it is hard to understand duties that m a k e no " c o n t a c t " with other persons. So while Locke himself m a y be able to scrap rights for children, a secular reconstruction or extension of Locke, it seems, cannot.

The a w k w a r d n e s s of this condusion for a Lockean account of rights lies in the fad that there are reasons to w a n t children not to b e rightholders within such a n account. The Lockean account of p e r s o n s a n d rights emphasizes (as w e saw in 2.2) agency, ratio- . *° Locke mentions that conception is "most commonly without the intention, and often against the consent and will of the begetter" (I, 54). Olafson, "Rights and Duties"; Lomasky, Persons, Rights, 165-67. This class may also include cases in which parents are non-negfigently ignorant of the connection between sexual intercourse and conception. 9 1

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nality, having a wiU^purposiveness, acting (in the strict sense), autonomy, self-consciousness, a n d the like. All of these are traits or capacities t h a t infants a n d y o u n g children seem n o t to possess at all, a n d w h i c h children acquire only very gradually. It seems natural, then, for a Ldckean to try to argue that y o u n g children are not persons a n d have; n o rights, a n d that older children acquire personhood a n d righfs in gradual stages (culminating in a thresh­ old reached at maturity). Many contemporary philosophers w h o argue against childreii's rights d o so in these t e r m s . But it seems t h a t - t h e (secular) Lockean line n e e d s children's rights, b o t h t o explaihj the w r o n g n e s s of abusing children a n d t o make sense of Special parental duties. Even (the nonsecular) Locke has, as w e have seen; ^problems with children's rights. Even if par­ ents have their rights a n d duties from God's entrusting children to them, and children h i v * thpir Hphbi "by d o n a t i o n " or "by the ap­ pointment of".(I, 89) GJod, we are still left with beings w h o are not under the JaW of n a t u r e but nonetheless have rights. And unless children also get duties (beyond obedience to their parents) in the bargain, their status as rightholders without (significant) duties vi­ olates the (so-cal3ed) doctrine of the moral correlation of rights a n d duties.* If, instead of God's donation being the source of chil­ dren's rights, .we try to analyze t h e m simply as the logical corre­ lates of parental duties, we render unintelligible those parental d u ­ ties. For it is only insofar as the infant is already a morally considerable being (one with rights), that a parent/s responsibility 93

1

*> Hart thinks w e should "not extend to animals and babies w h o m it is wrong to ill-treat the notion of a right to proper treatment," apparently because babies (and animals) cannot claim, waiyertor release others from the duties that correlate with) their rights ("Are There A n y Natural Rights?" 180-81). For Frankfurt, young chil­ dren are "wantons" w h o lack the second-order volitions (and rationality) necessary for personhood ("Freedom.oif the Will," 10-12). Wilkes describes infants as "fuzzy persons" (Real People, 56). According to Gewirth, "possession of the generic rights must be proportional to the degree to which (mdividualsj have the abilities of agency" ("Basis a n d Content," 54-55), s o that children cannot p o s s e s s full rights (Reason and Morality, 1 4 1 ) . A n d Murphy denies that young children (and the se­ verely retarded) have "autonomy rights," because they "certainly are not fully ra­ tional and autonomous" ("Rights and Borderline Cases," 237). It is also common because of children's lack of these traits or capacities, to refer to (at least some of) their rights with such terms as "rights-in-trust" (Feinberg, "Child's Right," 1 2 5 26), "rights by analogy" (McClosky, "Rights"), "preparatory rights" (Gewirth, Rea­ son and Morality, 141), or rights in "future interests" (Morris, "Persons and Punish­ ment," 316-17), or to say that children have genuine rights, but with some of the "conceptual linkages" missing (Melden, Rights and Persons, 7 2 - 7 3 ) . ** Which is stated (and rejected, precisely because of the case of infants, etc.) in Benn a n d Peters, Social Principles, 89, as follows: "the enjoyment of rights . . . is conditional on the performance of duties." 201

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for its plight can explain a parental duty of care. If the infant comes into the world rightless, parents seem to h a v e n o more duties to it than they would to a frog they created from leftover frog parts in a laboratory. It is by virtue of being God's that children enter the world as morally considerable beings in Locke's account of the matter. A n d it is because they are God's that they can be "morally considerable" even without having rights. Locke could, then, co­ herently d e n y rights to y o u n g children (although h e should also acknowledge a gradual accumulation of rights and duties for the growing child, rather than the "moral avalanche" at maturity that h e s e e m s to favor). Natural parental rights a n d duties w o u l d still be easy to g r o u n d , either (directly) in God's entrusting the child to parents or (less directly) in simple rule-consequentialist arguments (concerning the best m e a n s for preserving humankind). What, though, can Locke in his secular m o m e n t s (or the secular Lockean line, which needs children's rights) do in these matters? The natural account of children's rights to attempt is o n e that is "forward-looking"—that is, one that somehow anticipates the child's future status as an autonomous, rational agent, capable of planning, self-control, a n d moral action. Kant argues that w e m u s t understand rights not just as rights to be autonomous, b u t to be­ come rational, autonomous b e i n g s . Locke similarly argues that for the child, "the privilege of his nature, to b e free" is best under­ stood as a right to be helped in reaching the condition w h e r e rea­ son guides actions (II, 63). While such arguments are sometimes cast in terms of the child's status as a potential p e r s o n , they are more plausibly developed by a Lockean as claims about the child's present capacities or identity. Children have the capacity for ratio­ nality and autonomy, although they will not be able to exercise it until later, which makes them persons now. They are the same persons they will be as adults (in most cases). It is precisely be­ cause we adults are continuous with our child-selves that it mat­ ters now to each of u s h o w w e were treated w h e n w e w e r e chil­ d r e n . Respect for persons entails respect for them even w h e n 95

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Kant, Metaphysics of Morals, part 1, section 28. * O n the use of this notion of potentiality, see Wilkes, Real People, chapter 2. Locke, however, seems to ridicule the idea of deriving current rights from future status in his attack on Filmer's distinction between "habit" and "act" (1,18-20). He accepts derivations of rights from present identity. See Lomasky, Persons, Rights, 157-62; and Blustein, Parents and Children, 1 3 4 35. On the capacity for autonomy, see Feinberg, Harm to Self, chapter 18. Melden also argues that rights must be assigned according to what one is, not according only to the characteristics one exhibits at all times ("Do Infants Have Moral w

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i-

they are children, as yet unable to exercise the capacities that dis­ tinguish t h e m from n o n p e r s o n s . Treatment appropriate to t h e na­ ture of children m u s t b e responsive to their capacities; children, like t h e adults t h e y become, are entitled t o such treatment. I will n o t try here to develop this (or a n y other) account of t h e rights of c h i l d r e n . 1 will only point to a difficulty faced within a Lockean perspective by the alternative "potentiality" account of children's rights. The curHcuIty is that the purest form of this ac­ count (i.e., the form in which it is not simply equivalent to the "present capacity" account sketched above) has a very h a r d time explaining the child's right n o t to b e killed. Insofar a s w e explain children's rights in t e r m s of the status of the adults they will be­ come or in terms of the effects of our current treatment of t h e m o n those adults, w e seem to lack an explanation of their rights in those cases w h e r e t h e adults i n question will never exist. T h e nat­ ural next m o v e is to try to explain the child's right not to b e killed in terms of that child's current interest in becoming a n adult rational agent. But this is a m o v e that involves shifting in midstream away from the previous emphasis on choice, reason, will, self-con­ sciousness, a n d t h e like, as the bases for rightholding. Interests are possessed b y a much wider class of beings than persons (or agents or beings w i t h wills); and focusing o n interests in a theory of rights indicates a quite different set of concerns than focusing on reason or freedom. While we have seen (in 2.3) that Locke em­ braces unqualifiedly neither a choice (or will) theory of rights nor a benefit (or interest) theory, he would surely be uncomfortable with at least some of the consequences of the shift to a focus o n interests at this point in-the a r g u m e n t . 98

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Rights?" 215-18); y o u n g children count as persons now, in virtue of their continuity with their future serves (Rights and Persons, 221-23). If rule~consequentiaiist arguments can establish rights, of course, there is an alternative Lockean argument for children's rights: since mankind is best preserved if children are preserved, there is a duty to preserve children and a corresponding right of children to b e preserved (both positively and negatively) by all others (and not merely by their parents).See WDkes, Real People, 53. This problem is quite well illustrated in Lomasky's argument for children's rights. Some of the child's rights (and all of the rights of normal adults) are defended in terms of the rightholder's special status as "project pursuer" or "future project pursuer." But the child's right not to b e killed is de­ fended in terms of the child's interests (Persons, Rights, 162-63). Consider, for instance, .Feinberg's argument that because rightholders must be capable of being harmed or benefited and being represented, "the sorts of be­ ings w h o can have rights are precisely those w h o have (or can have) interests" ("Rights of Animals," 167). This class of beings clearly includes not only very young children, but at least many lower animals as well (ibid., 161-67; see also M

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I do not pretend that the "present capacity" account of chil­ dren's rights is easy to defend. But the only other obvious alter­ native compatible with a secular a n d genuinely Lockean theory is to try to explain the duties at issue—the general duties not to harm children a n d the special duties of parents—in a way that does not depend on children being persons or rightholders (and which ap­ peals neither to God's will nor to His entrusting children to par­ ents). This is obviously a n even harder task t h a n t h e first. 4.4. The Family and Property Locke's theory of property (the subject of chapter 5) comes into contact with his account of familial morality chiefly on issues con­ cerning inheritance a n d bequest. The time Locke s p e n d s discuss­ ing inheritance (primarily in the First Treatise) is, of course, impor­ tant to his critique of Filmer, since it is by inheritance that A d a m ' s power is alleged by Filmer to descend to kings. But in the process of answering Filmer, Locke creates a puzzle of his o w n . His re­ marks o n inheritance a n d bequest leave h i s reader n o t at all clear on the status of property within the Lockean family. At times Locke seems to say that the father's property is his o w n , to dispose of as h e will. At other times, however, the rights of children (and wives) to (all or a share of) this "paternal property" seem to be emphasized. The following question emerges: "Which is to pre­ vail—the testator's liberty to bequeath his property as he wills or his d e p e n d e n t s ' natural right to the inheritance?" This question, of course, is just a more specific form of two m o r e general puzzles: Is property in the family essentially individual or familial? Does the property holder's right of free alienation or the d e p e n d e n t s ' right to s u p p o r t have priority in Locke? 101

There is ample textual evidence to support the first interpretive option—that in Locke property is individual with free alienation and bequest having priority. Of the father's property, Locke 102

Feinberg's "Child's Right," 127; and Blustein, Parents and Children, 163). N o w inter­ est theories of rights (or of the possible subjects of rights) are not without problems of their o w n (some of which are discussed in White, Rights, 79 - 85). But the point to note here is that an appeal to interests at this stage of the argument will make rightholders of very different classes of beings than Locke wanted; indeed, it will make rightholders of all of the beings said by Locke not to be under the law of nature. Waldron, "Locke's Account," 40. Strauss reads Locke in this way (Natural Right, 247n), as do many others: for example, Tyler, Family Provision, 1; Pangle, Republicanism, 233; Wood, Capitalism, 7 9 - 8 0 . Both Waldron ("Locke's Account," 41, 47) and Grant (Liberalism, 6 0 - 6 1 ) , a i

m

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writes: " t h a t possession, if he disposed not otherwise of it by his pos­ itive grant, descended naturally to his children, and they had a right to succeed to i t / a n d possess it" (I, 87; my emphasis). Fathers have the power to ''bestow their estates on those w h o please t h e m most" (TJ, 72): The natural reading of such passages is that the father may dispose of.his property as he pleases. His d e p e n d e n t s have a right over unrelated persons to inherit w h a t remains at his death. But their rights in n o w a y Urrut the father's right of free alienation (and b e q u e s t ) - A n d this may seem as it ought to b e in a theory that appears t o many to emphasize the right of free alien­ ation as an i m p o r t a n t component of property. 103

It is not, however, at all obvious that free alienation is central in this way to Locke's theory of property. There are many things one clearly m a y not d o with one's property in Locke—harm oneself or others, d e n y t h e n e e d y , and so o n (see 5.1 a n d 6.3). Such limits should make u s w o n d e r about free bequest. Even if we accept the claim t h a t free alienation is essential to property in Locke, h o w ­ ever, nothing w o u l d follow from that about the priority of paternal bequest. Locke could defend free alienation a n d still defend the priority of inheritance (dependents' rights) in several ways. First, provided that the property that m a y be freely alienated is con­ ceived as joint property, held by all of the family members to­ gether, paternal alienation or bequest will have no priority (in­ deed, it will have.no moral force at all). Second, even if property is individual, free alienation is compatible with having committed or partially alienated one's property to those w i t h w h o m o n e en­ ters into a special relationship—such as those relationships created by marriage or procreation. The rights of dependents might t h u s have priority over (or at least be in conflict with) the later right of paternal alienation. It is appropriate, then, to explore the other possibility—-that property is essentially familial or that inheritance a n d the rights of dependents have priority (in family settings) over paternal prerog­ ative. This latter view of Locke has been (too) vigorously defended by Tully, w h o a r g u e s that for Locke "any family m a n ' s property is not his property at all; it is the common property of the whole family. . . . The standard form of a right of property is n o t an in­ dividual right for Locke. . . . The reason for this unique familialisation of property is to preserve mankind by preserving its basic have claimed that while this is indeed Locke's view, he gives no adequate justifi­ cation for it. This is Garic's reading ot Locke ("Women and John Locke"). 103

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unit: the family (I, 88, 89). Locke destroys the very foundation of individual rights." Inheritance, then, cannot h e "justified in terms of a father's right to dispose of his property as h e pleases, since it is not wholly his p r o p e r t y . " N o w there is clearly textual evidence o n this side as well. "Men are n o t proprietors of w h a t they have merely for themselves, their children have a title to a part of it, and have their kind of right joined with their p a r e n t s " (I, 88). A n d the wife participates in a "community of goods, a n d the power over t h e m " (II, 83) with her h u s b a n d . Her tide to her share may b e gotten by either " h e r own labor or compact" (II, 183). But there is n o doubt that both wife a n d children have "a title to the goods [the father] enjoyed, and their shares in the estate [the father] possessed" (D", 183). The source of the wife's title is n o mystery, as we have seen. She has a general right, of course, to the products of her labor. But h e r basic conjugal rights (including her rights in the "community of g o o d s " ) are "contractual" (4.1). It is t h u s not possible to say pre­ cisely w h a t she is entitled to without a knowledge of the contract (or understanding) that underlies her marriage (although w e can assume that she is entitled to at least "maintenance" [II, 83]). The source of the child's right to inherit is slightly more mysterious, since Locke seems to suggest at least four distinguishable accounts of it in t h e key passages o n inheritance (I, 88-98) a n d yet another in the Second Treatise. 104

105

(1) In I, 88, Locke argues that h u m a n beings have "a strong de­ sire . . . of propagating their k i n d " a n d that "this gives children a title, to share in the property of their parents, a n d a right to inherit their possessions" (my emphasis). Read by itself, this argument is incoherent. At most, even accepting the style of reasoning used in I, 86 - 8 8 , the "strong desire" to propagate could ground only a right to propagate (and a duty to respect this right in others), not a right of children to inherit. We should thus read the argument as elliptical a n d take it to " p o i n t " to (2). (2) Later in I, 88, Locke suggests (more reasonably) that from the 106

"* Tully, Discourse, 133. Ibid., 134. See also Waldron: Locke's 'primary economic unit is the family. Al­ though it is individual labor that gives rise to property entitlements, the entitle­ ments to which it gives rise are familial, not individual" ("Locke's Account," 43). For a classic defense of a similar view of familial property (and of the resulting limitation o n the right of paternal bequest), see Hegel, Philosophy of Right, sections 170-80. "* Contrary to, for example, Pangle, w h o takes this first argument to be Locke's only argument for the child's right to inherit (Republicanism, 232-33). 206

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obligation of parents " t o preserve w h a t they have begotten," w e can infer that children have a right to their parents' goods (these being necessary to their maintenance). H e also (although later, in 1, 97) maintains that the child's right to inherit is "founded o n " this right to g o o d s needed for subsistence and comfort. This seems, o n t h e face of^ it, a reasonable derivation. If the parental duty of care can require (as it clearly does) parents to exercise p r u ­ dence with regard to future contingencies during the p a r e n t s ' lives—for example, by requiring t h e m to take care that food a n d shelter will be available to the child tomorrow, as well as providing it today—then that same duty of care can be plausibly interpreted as requiring that'they provide resources for the child's well-being in the event of their deaths. If the parents have a duty to make this provision, their children have the correlative right to it (which is simply equivalent to the right to inherit). (3) Locke awkwardly (and unnecessarily) attempts (in I, 89) to complete a r g u m e n t (2) by dairning that the parents should be " u n ­ derstood" to h a v e wished to leave their property to their children, even " t h o u g h t h e dying parents, by express words, declare noth­ ing about t h e m . " Argument (2), however, as elaborated above, is quite adequate without these "understandings" of parental inten­ tions. Indeed, (3) undercuts the a r g u m e n t in (2), making the child's right to inherit the correlate not of the parents' duty of care, owed to the child, b u t of the obligation grounded in the p a r e n t s ' (understood) decision to leave their property to the child. Presum­ ably, an express statement that they did not wish their child to inherit would eliminate the child's right to inherit. (3) t h u s pro­ vides better s u p p o r t for, parental free alienation and bequest than it does for the child's natural right of support. (4) Several paragraphs later (I, 93), Locke states that it is " b y the dependence they have o n their parents for subsistence, [that chil­ dren] h a v e a right of inheritance to their father's property" (my emphasis). This looks like the suggestion of an argument of the following form: children need and are entitled to support; children happen to be d e p e n d e n t on their parents, w h o are specially placed to provide support; therefore, children are entitled to support (and to an inheritance, as in[2]) from their parents. Thus, children have a general right to s u p p o r t (and others a general duty), which is "fo­ cused" o n the parents.by virtue of their being in the best position 107

Note that here "dependency" seems to ground "rights"; our dependency on God, by contrast, grounds obligations (and rights for the God on whom w e are de­ pendent). 207

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to provide the support (as one with a general right to n e e d e d aid might h a v e a specific claim o n the people w h o are nearby w h e n aid is needed). If this is indeed Locke's intended line of argument, it cannot be rendered consistent with other aspects of his position on farrdlial morality. For it makes parental duties a n d children's rights into general duties and rights, not special ones based in the special n a t u r e of their relationship. The moral relationship be­ tween parent and child (as w e saw in 4.3) cannot be captured by the observation that parents are simply in the best position to help their children (if for n o other reason than that parents are not al­ ways in the best position). Parents owe more to their child than does a well-positioned stranger. I propose, therefore, to reject (4). (5) Finally, there are hints in the Second Treatise that inheritance is "taken care for" in any compact of marriage (e.g., II, 81). An a g r e e m e n t (understood or explicit) between spouses to provide an inheritance for their children would seem, at first blush, only to explain parental duties owed to each other to leave property to their children, not any duty owed to the children. But insofar as the children are the direct, intended beneficiaries of these parental duties, some theories of rights will allow that the children have, as a result, a right to inherit. Since I take argument (2) to be Locke's primary line on the right to inherit, however, I will not p u r s u e this rather different approach any further. We have n o w considered Locke's primary claims about paternal freedom of bequest (and free alienation of property), on the one hand, and the rights of wives and children to a share of property o n the o t h e r . There seems to be textual evidence to support both the priority of paternal bequest and the priority of d e p e n d e n t s ' rights. A n d there seem to be good Lockean arguments available o n both sides. Reasoning as a rule-consequentialist, h u m a n k i n d 108

)OT

I have commented not at all o n Locke's rejection of attempts to derive the right to inherit from consent (1. 88) his arguments against the doctrine of primogeni­ ture. With respect to the latter, Locke seems dearly to reject arguments that order of birth should determine possession or nonpossession of the right to inherit (I, 9 l 101, 111-19), and (less clearly) to reject gender as a detenriining factor (Grant, Lifreralism, 60; Waldron, "Locke's Account," 43; Ashcraft, Locke's Two Treatises, 9 3 - 96). From the rule-consequentialist perspective, of course, primogeniture is a silly doc­ trine; for it is precisely the youngest child whose needs are likely to be greatest (although perhaps the oldest w h o is best able to manage the estate) (see Waldron, Private Property, 244). But w e should remember that Locke's rejection of primogen­ iture may not be complete (see Wood, Capitalism, 7 9 - 8 0 ) . For he allows that the eldest brother "has the greatest part of his father's estate" (II, 202) and elsewhere s e e m s not to object to the eldest son's having a larger portion than his brothers (I, 114-15). On the relation of Locke to the Levellers o n this issue, see Ashcraft, Revolutiorwry Politics, 283. o r

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seems likely to b e beist preserved if those w h o have natural affec­ tion for the needy (their parents) are made responsible for caring for them (since parents will work harder at it, resent it less, etc.). Of course, it also seems true that people will work harder to make property (which benefits all humankind) if they will b e free to u s e that property (and alienate it) as they please. There are similar de­ ontological a r g u m e n t s for both the special responsibilities of par­ ents a n d h u s b a n d s (based in their voluntary performances) and the right to control that property which is a natural extension of one­ self a n d a part.of o n e ' s projects and plans. In the face of such con­ flicting arguments, t h e natural resolution for the Lockean is some position that accepts the strength of the arguments on both sides. 1

A likely compromise is a position that acknowledges the free­ dom of t h e father t o d i s p o s e of his property as h e pleases, s o long as he also (a) provides for the needs of his dependents (to w h o m he owes special: duties), and (b) honors his contractual duties to his wife. This position gives a limited priority to the rights of other family members, b u t it does not (a la Tully) make property essen­ tially familial a n d t h u s does not do away altogether with individ­ ual property within the family. It simply acknowledges all of the claims o n the .individual property produced by the father. A n d I believe that something tike this is precisely the position Locke wished to defend: " a father m a y dispose of his o w n possessions as he pleases, w h e n his children are out of danger of perishing for want" (II, 65). While a certain level of inheritance is required or expected, " y e t it is commonly in the father's power to bestow it with a more sparing o r liberal h a n d " (II, 72). Notice also that the claims of children are always said to be claims to a " p a r t " or a "share" of t h e father's property, not claims to joint ownership of it. The father, then, may freely dispose of his share a s he pleases, his share being that which is not owed to other family members as their shares. O n e might object to this reading of Locke, pointing (as we did initially) to the passage in which Locke says that property " d e ­ scended naturally to his children" if the father h a d "disposed n o t otherwise of it b y his positive grant" (1,87). N o w w e can explain 1W

io* Waldron, "Locke's Account," 4 5 - 4 6 (these arguments are repeated in Private Property, 241-51). Waldron also argues that a proper Lockean position would (a) limit rights of inheritance to what is needed by dependents, and (b) deny that there is any natural right of bequest at aU (bequest being only, if anything, a civil right) (48-50). I discuss the possibility of (a) below. But (b) seems both indefensible as a reading of Locke and quite unappealing (and unnecessary) within a Lockean per­ spective. 209

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this passage in a variety of ways, without rejecting the proposed interpretation. Perhaps Locke was just careless or genuinely am­ bivalent. Better, p e r h a p s Locke is trying to say here simply that whatever the father has not disposed of (from within the father's o w n share) descends naturally to the child, along with the child's share. But the likeliest and most literal reading of the passage makes it an acknowledgment that there can b e conm'cting claims to the father's property. Where the father does not leave or prom­ ise his property to another, it descends naturally to t h e child. But if the father does m a k e other arrangements, property descends not naturally, b u t in conflict. We have seen already (in the discussion of 11, 183 in 1.4) t h a t Locke allows other rights to conflict with rights of inheritance—in particular, the just conqueror's right to reparation for injuries d o n e him by the father. There is n o reason to be suspicious, then, of the claim that the father's positive grants might also yield rights to his property that conflict with the rights of h i s wife a n d children (and, of course, such conflicts w e r e not, a n d are not, u n c o m m o n in the law). We know, of course, that the father should not promise away property to which h i s wife and children have a claim. But w h a t if h e does do this? What is the moral result of such a promise? The answer d e p e n d s o n our answer to the more general question: w h e n a person makes two conflicting promises or cornmitments (i.e., promises that, as things turn out, cannot both be performed), can these result in conmcting rights, or m u s t the first promise al­ ways take priority? The answer is far from obvious. Are second promises always " n e g a t e d " in conflict situations? In at least one place Locke seems to answer " y e s , " for h e denies that "oaths to any foreign p o w e r " could bind citizens w h o have already given their consent to their o w n society's authority (II, 134). O n the other h a n d , there is reason to believe that Locke would have been troubled by this position h a d h e thought much about it. For o n the line suggested in II, 134, one would expect Locke to argue that in the case of warmaking fathers a n d just conquerors, the father could not give the conqueror a right to reparation by his wrong­ doing that w o u l d conflict with t h e claims of h i s wife a n d children. For they h a d the prior claim. Locke, however, allows in such cases a genuine conflict of rights. A n d h e may well also believe that the father's grant can generate rights that conflict with the rights of wife a n d children. Such conflicts (I argued in 1.4) are to be re­ solved by direct appeal to the fundamental law of preservation. Thus, the resolution will almost always favor the wife a n d chil210

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dren, since m a n k i n d is best preserved w h e n those w h o are need­ iest are supported. This again, then, affirms the (limited) priority of the rights of t h e family members over the father's right of be­ quest. But it does nothing to suggest that this latter right is illusory or insignificant. The limits are not all on the right of bequest, however. It is nat­ ural to s u p p o s e , within a Lockean framework, that the right to inherit should b e limited as well (although Locke nowhere sug­ gests t h i s ) . T h e m o s t obvious limitation can b e derived from t h e very structure of the right itself. Insofar as the right to inherit is founded o n the child's right to support from parents, it can be no more extensive fhari that foundational right. The child's right to support is a right t o basic necessities p l u s reasonable comforts (where the parents can afford them). The child cannot, then, have a right to inherit a n y more of the parents' property than will make reasonable comfort possible. The s u r p l u s of wealthy parents' holdings s h o u l d n o t descend to t h e children, b u t t o t h e common, to be shared by all (as in the case of parents w h o have n o living children or parents [I, 90J). Such limits o n inheritance, of course, seem appropriate for other reasons as well. Because inheritance is one of t h e m o s t pernicious causes of e n d u r i n g (and unmerited) material i n e q u a l i t i e s ^ society, a n d because genuine (not merely hrmal) equality of opportunity seems to d e p e n d in important ways on material equality, the goal of equal opportunity (and such 110

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1 do not here discuss limits o n the wife's right to inherit, since these are pre­ sumably determined contractually. Locke s e e m s in the First Treatise to set other, quite general limits o n the right to inherit. In I, 74 '(also I, 98, and elsewhere), Locke appears to argue that n o one can acquire (from another) a right to anything "without d o i n g that u p o n w h i c h that right is solely founded." Locke states this as a principle about inheritance (in order to block claims to the inheritance of paternal power), but it looks like a more gen­ eral limit o n alienation, or on any means by which rights change hands. This prin­ ciple, if taken seriously, would appear to make both alienation and inheritance oi property impossible, since property is "solely founded" in laboring, which only the laborer does (see Grant's similar remarks in Liberalism, 61-62). We would expect Locke to say, as a result^not only that a man's property dies with him (Waldion, "Locke's Account," 3 9 - 4 0 ) ; but that he can also never give it away or sell it during his lifetime. ' This same surplus (the amount beyond what is needed for comfortable pres­ ervation) is, I believe, what the needy have a right to when they cannot support themselves. See m y discussion in 6.3. Waldron argues that a n y property beyond what is strictly needed by wives and children cannot be inherited by them, but reverts to common ("Locke's Account," 47). It is hard to see w h y the father is entitled to enjoy the comforts of life at all, on Waldron's line of reasoning, although Locke clearly allows this. And if parents can enjoy these comforts, w h y can't children inherit them (since their right to support includes rights to comforts {I, 89])? 1,1

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goals as social solidarity a n d fraternity, unalienated labor, efficient utilization of s o d a l resources, etc.) m a y be advanced b y reasonable limits o n the right to inherit (as m a n y contemporary authors, often inspired by Rawls, h a v e insisted). 114

4.5. The Family and Political Society I will briefly discuss h e r e only two (or three) of t h e w a y s in which Locke's account of familial morality touches his views o n the proper structure of political life: the political implications of his theory of inheritance, a n d his rejections of patriarchalism a n d pa­ ternalism. Locke's theory of inheritance has political implications primarily because governments m u s t have t h e right to "regulate" property within their b o u n d a r i e s . " Insofar as governments are entrusted with the task of securing the property of their citizens, they m u s t have jurisdiction over the land within the territories of t h e com­ monwealth in order to discharge this task. But it follows from this, Locke believes, that "whoever . . . by inheritance . . . or otherw a y s enjoys any part of the land, so annexed t o a n d u n d e r t h e government of that commonwealth, m u s t take it with the condi­ tion it is under: that is, of submitting to the government of the commonwealth, u n d e r w h o s e jurisdiction it i s " (II, 120; see also II, 73, 116-17). Governments have the power to require submission as a condition on the inheritance of land within their domains. H o w d i d they acquire this power? Apparently they acquired it by transfer from the original owners of the land, w h o , o n incorporat­ ing themselves into the commonwealth, also joined their property to that society. This joining of property is viewed b y Locke as a 5

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See, for instance, Hasletf s argument that inheritance is inconsistent with cap­ italist ideals (like distribution according to productivity, equal opportunity, and freedom) in "Is Inheritance Justified?" Nozick now acknowledges that the inequal­ ities reproduced by free bequest seem unfair, and so he favors the "simple subtrac­ tion rule" for bequests, on which only additions one makes to one's inherited wealth can be passed on to one's children (Examined Life, 30-31). 1 u s e the term "property" here as neutral between "land" a n d "possessions." Whether Locke intends to claim that governments acquire rights over all posses­ sions (of external goods), or over land only, is not entirely clear from the text. I opt here for the latter reading. While Locke frequently speaks of joining possessions to the commonwealth (II, 116, 117,120), he seems to have in mind only possessions in land (Mabbott, John Locke, 161). See 6.1 below for m y defense of this reading. Locke also argues that commonwealths do not permit "any part of their do­ mains to be dismembered, nor to be enjoyed by any but those of their community" (II, 117). But since the rationale for this power is presumably just that allowing dismemberment (or discontinuous, "swiss-cheese" boundaries) would make secur, l i

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necessary a n d understood part of a n y act of joining a civil society, since it is necessary for securing property (which is the e n d of join­ ing society) (H, 120). Would-be citizens give society a kind of par­ tial right over their land (which is in turn entrusted to that soci­ ety's government)—a right to regulate that property a n d to limit alienation of it to others w h o are citizens. This partial (but perma­ nent) right in each citizen's property is w h a t Locke calls jurisdiction (which should not, of course, be confused with public ownership of citizens' land"')* A n d this partial right over the land gives society the power to limit t h e natural right of inheritance (by placing con­ ditions o n it—namely, submission to society a n d its laws a n d gov­ ernment). ; It seems possible, however, to argue that this position conflicts in at least two ways w i t h other aspects of Locke's theory. First, if children need the estate .they (otherwise) stand to inherit, a n d the government forces t h e m to submit as a condition on inheritance, is not the g o v e r n m e n t guilty of using their n e e d in order t o get sub­ mission? Yet Locke claims that "a m a n can no more justly make use of another's necessity to, force him to become his vassal [or "sub­ ject" (I, 43)] . . . than h e that has more strength can seize upon a weaker, master him to, his obedience, and with a dagger at his throat offer h i m death or slavery" (I, 42). At least two lines of re­ sponse to this worry seem available to Locke. First, he could claim that while children cannot inherit without submitting to society, children are still entitled, to sell their parents' estate or to receive from the state a fair price for it (thus satisfying their needs) should the children decide n o t to become subjects (and hence abandon the land to the society's commons). Second, Locke could argue that the case in question! represents a conflict between the rights of the n e e d y children arid the (contractual) rights of society (re­ ceived from t h e original owner of the land), and that the conflict 1

ing a d o z e n ' s property very difficult, the argument is not independent of the one considered in the text. We should remember that Locke is not appealing to what original owners of land actually agreed to, but rather to what w e must understand their agreement to commit them to. His appeal thus depends o n a factual assump­ tion that a state that permitted ''dismemberment'' or "internal boundaries" ("inter­ nal emigration") could not secure its citizens' property (so that original owners can be understood to have agreed to eliminate this possibility). But this factual assump­ tion is by n o means obviously true, as 1 argue in "Voluntarism," 28-30. Again, see 6.1 below. 1 , 7

As, say, in Rousseau, where property owners are really only "trustees for the commonwealth" (Social Contract, 1.9, paragraph 6). See Gauthier's discussion of Locke's argument a n d o f the distinction between jurisdiction a n d ownership in "Role of Inheritance," 3 8 - 4 1 . 1 return to these issues in 6.1. 213

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should be resolved (as w e saw earlier) by direct appeal to the fun­ damental law of preservation. Since allowing "dismemberment" of society's territories endangers all citizens, a n d since t h e needy children can be supported in other ways than by allowing them (unregulated) possession of the land, the proper resolution of the conflict of rights will favor society's right to limit inheritances. A second concern about society's right to limit inheritances is the possible consequences of this right for Locke's theory of con­ q u e s t . " It is the rights of d e p e n d e n t s to inherit the property of the vanquished warmakers that seem to stop a just conqueror from acquiring political power by conquest. The just conqueror ac­ quires n o rights over t h e dependents of the conquered, nor can he acquire rights over the land of the conquered (II, 179, 182-84); the rights of d e p e n d e n t s take priority over the conqueror's right to reparation. But if the warmakers' society (government) h a d a right to d e m a n d submission as a condition on their d e p e n d e n t s ' inher­ itance, a n d if the government h a d this right by virtue of its juris­ diction over the land, w h y couldn't the just conqueror acquire this jurisdiction over the land from the defeated government, a n d then acquire political power over the warmakers' d e p e n d e n t s b y requir­ ing submission as a condition o n their inheritance? Locke emphat­ ically denies that even a just conqueror can in this w a y acquire jurisdiction or political power (II, 192). But, w e might argue, he should not have d o n e so. Locke should have said that an aggressor commonwealth forfeits its right of jurisdiction to the just con­ queror, so that the conqueror has the same standing (and can sim­ ilarly require submission as a condition o n inheritance) as the con­ quered government formerly did. To deny this, Locke m u s t say that the conquered government's right of jurisdiction merely r e verts back to its original holders—the people of the common­ wealth—or, in the case of the warmakers themselves, descends to their heirs. 8

But is not this latter position precisely the one Locke must adopt? For it is essential to the idea of civil society for Locke not only that political power be limited a n d of a particular kind, but also that it remain in the same hands that the people p u t it in (II, 216-17). Only a new consent of the people can place it in n e w h a n d s . In this respect at least, political power is personal (although it is not, of course "personal" in Filmer's sense (II, 151J). Since all political Gauthier, "The Role of Inheritance." The arguments in this paragraph are all Gauthier's. 214

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rights are given in trusty they cannot be forfeited by the trustee, but r e t u r n o n t h e t r u s t e e ' s demise or enslavement to the settlor of that trust—that is, the,people. This is as true of jurisdiction as of any other political right..Those a m o n g the people w h o themselves participated in or aidedi^he unjust war, forfeit all rights a n d are n o longer incorporated in t h e society—-for only free individuals (rightholders) can be, m e m b e r s of civil society. Jurisdiction (with all other entrusted political rights) t h u s reverts to the remainder of the people w h o did not participate in the war. The conqueror can no more acquire jurisdiction by forfeiture than you can accniire a right t o m y daughter's'JhTist fund w h e n the trustee of that fund negligently injures youJj I n the (bizarre) instance that all members of a society participate in. a n unjust war, t h e conqueror can acquire ownership of all that society's territories (there being no innocent person with prior d a i m s ) . But this is not jurisdiction over territory; it is simply property. Over the vanquished, the conqueror can ac­ quire only despotic, n o t political, power. There may, then, b e n o serious or irresolvable conflicts b e t w e e n Locke's theory of inheritance a n d other aspects of his moral a n d political philosophy, although w e have seen that the part of Locke's position p n familial morality that deals with inheritance dearly does h a v e important political implications. The more direct and obvious political implications of his views on familial morality, however, lie in Locke's rejection of patriarchalism a n d paternalism in government. Indeed, this rejection is dearly o n e of the most important contributions to political thought made by the Treatises. It establishes the character of Locke's w o r k as distinctively liberal and a m o u n t s to a convincing refutation of a very influential way of thinking about authority. Locke's arguments o n this subject, however, h a v e also b e e n commented o n at length b y generations of Locke scholars. I will, accordingly, be brief in m y remarks on this aspect of Locke's thought, without, I hope, creating t h e im­ pression that m y brevity is a measure of m y estimation of its im­ portance. The form of paternalism rejected by Locke is governmental in­ terference (by standing laws or arbitrary decrees) aimed at pro­ moting or protecting the good of the governed without their con­ sent. The form of patriarchalism Locke rejects is w h a t Schochet 119

"* Gerald Dworidn's more general definition of paternalism is: "interference with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced" ("Pater­ nalism," 108). I shall not comment here on any of the important recent work on 215

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has called "moral patriarchalism"—that is, the view that political authority is a kind of (or identical to) paternal authority, so that the obedience owed magistrates is of the same kind as the obedi­ ence owed fathers. This latter doctrine w a s taught in Locke's day by the C h u r c h of England, which based it o n a n interpretation of the Fifth C o m m a n d m e n t . A n d it was, of course, the view of Locke's Tory o p p o n e n t s , and in particular, of Filmer. Paternal­ ism and patriarchalism are obviously related positions, although (just as obviously) they are far from identical. While patriarchalism makes political power "paternalistic" in one sense, it is compatible with quite "unpatemalistic" views of the nature of paternal power (e.g., Filmer's absolutist view, o n which paternal p o w e r n e e d not be exercised for the good of the one ruled). A n d paternalism (as defined above) does n o t need to derive the right of a government to act paternalistically in the same way that it derives parental rights to govern children. Locke's attack on patriarchalism (which I will discuss first) is quite central a n d obvious in the Treatises. His rejection of paternalism (to which I return shortly) is m o r e entailed by than specifically formulated in the argument of the text. 120

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The heart of Locke's attack on patriarchalism can be captured by noting the conclusions of three arguments. (1) Paternal and polit­ ical power, although "confounded" b y m a n y (II, 169) are com­ pletely different in both origin and extent (e.g., I, 48; II, 65, 71, 74, 77, 86, 173-74). There is t h u s no Fifth C o m m a n d m e n t ground for political authority or obligation (e.g., I, 6 4 - 65; n, 52, 65-66, 69). (2) Even if political power were paternal, political power would not be absolute (e.g., II, 53, 64, 69, 74). (3) Parents cannot bind their children to any commonwealth. "For every m a n ' s children being by nature as free as himself," children are free to decide for them­ selves which society to join (II, 73). This establishes the necessity of consent as the basis of all political authority a n d obligation. In defending these three conclusions, Locke decisively undercuts the main contentions of Filmer's patriarchalist theory. paternalism, but only direct the reader to Feinberg, Harm to Self; Van DeVeer, Pater­ nalistic Intervention; Kleinig, Paternalism; Sartorius, Paternalism. Many of the helpful articles on the subject (which are too numerous to list here) are referred to in these longer works, Schochet, Patriarchalism, 10-14; Tarcov, Locke's Education, chapter 1. Ibid., 6, 14-16, 73-81. Locke's predecessors and opponents in the debate are discussed by Schochet in chapters 6-12. See also Ashcraft, Revolutionary Politics, 232-33; and Leites, "Locke's Liberal Theory of Parenthood." For Filmer, all political rights are simply identical to the natural rights of fa­ thers (Patriarcha, I, 8-9; m, 11). which is to say that they are rights of absolute dominion (rights of life and death) over children (ibid., I, 4). 1 2 0

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Locke also, of course, concedes several of the patriarchalisf s claims. H e allows that monarchy is the simplest a n d most natural form of government, b e i n g appropriate for simple people w i t h lit­ tle property (who will t h u s be worried more about foreign inva­ sion than about their own ruler's excesses). Monarchy is the form of rule to which they have been accustomed in the family (II, 107). A n d Locke allows' as well that it is natural for fathers to be­ come princes (n, 164). There is t h u s a natural change from family to political life. N o n e of. this shows, however, that the patriarchalist is correct. For it is "only by the consent of his children," n o t b y any paternal right, that the father comes to b e prince. His grown children s t a n d aside a n d let t h e father exercise his natural execu­ tive right uriimpeded (II, 74), as they w e r e used to seeing h i m d o when they were y o u n g . It is t h u s only "by an insensible c h a n g e " that fathers become "politic m o n a r c h s " (II, 76), a n d their grown children give only a "tacit a n d scarce avoidable consent" t o this change in status (II, 75,110). But while the observable condition of parents a n d children changes very little in moving from family to patriarchal monarchy, their moral condition changes dramati­ cally. '* The child's obligation of filial obedience is n o w the freely undertaken, consensual obligation of free person a n d citizen. A n d the paternal authority, once based in the father's duty of care (which e n d e d with his children's maturity) a n d paternal benefac­ tion, is n o w political power, held in trust from a society of equals consisting of father a n d grown children (along with adult relatives, servants, etc.). 123

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It is essential to k e e p this consensual dimension in m i n d as well in thinking about Locke's attack o n paternalism. Otherwise, it may seem that Locke has n o real objection to paternalism, in light of (for instance) his acceptance of executive prerogative—a right to 125

Filmer, of course, takes the "naturalness" of monarchy to s h o w that God in­ tends us to be governed in this way (e.g., Patriarcha, U, 9-14). Schochet, Patriarchalism; 55-36, 2 5 6 - 6 1 . Which continues, o n Locke's view, as a source of quite independent (and nonpolitical) filial obligation. See Grant's discussion of whether such patriarchal monarchies can really count as legitimate governments (given their absence of standing rules, any sepa­ ration of legislative and executive powers, etc.) (Liberalism, 8 6 - 8 7 ) . There are also questions to be raised about just how distinct the grounds of paternal and political power really are. Tacit consent i s tied closely to the enjoyment of benefits in Locke. Given that it is also the receipt of benefits that is supposed to ground (some) pa­ rental rights, the border between consensual and paternal authority is considerably blurred. m

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act "arbitrarily" for the public good (U, 1 5 9 - 6 8 ) . Locke even compares prerogative to the power of a father, "watching over [the people] for their g o o d " (II, 162). When w e remember, however, that even executive prerogative is really only a trust from the peo­ ple, a result of their consenting to w h a t is necessary for effective advancement of the e n d of government (securing their persons and property) (H, 163-64), w e see that the use of prerogative is not paternalistic. Prerogative is a consensual, limited right, far in­ deed from a right to interfere paternalistically in all areas of citi­ zens' lives (e.g., their personal or religious lives). Paternalism is appropriate for (young) children, idiots, a n d the insane (II, 60). He w h o " h a s not understanding of his o w n to di­ rect his will, h e is n o t t o have a n y will to follow: h e t h a t u n d e r ­ stands for him, must will for him too; h e m u s t prescribe to his will and regulate his actions" (II, 58). But w h e n persons acquire the understanding and control to k n o w the law of nature a n d keep their actions within its b o u n d s , they are n o longer subject t o pa­ ternal authority. They are then free and equal rightholders, subject to no authorities but God, those appointed by God, a n d those they make by their own consent (precisely which classes of beings have by these s t a n d a r d s a right to b e free of paternalistic intervention is, of course, more of a problem than Locke's remarks s u g g e s t ) . 128

m

It may also seem that because each person has a natural duty to preserve self, and the government has the right to enforce natural law, governments may inter­ vene patemalistJcauy t o require persons to care for themselves. Locke d o e s not address this line of argument, I believe, because of a confusion about correlative rights. Consider the following, equally Lockean argument: My duty to preserve myself seems to correlate with no other person's rights; government's job is to se­ cure our rights (preserve our property); therefore, m y government should not re­ quire me to preserve myself. Is the job of government in Locke to enforce natural law or to secure our rights? Locke answers in both ways because h e thinks of nat­ ural duties as correlating with natural rights. But at the same time he accepts duties of self-preservation that seem not to correlate with rights (perhaps a further reason to be suspicious of such duties—see 1.5). This is simply more evidence of the fence Locke straddles in his moral theory (see 2.4 above). And, of course, it introduces a similar problem about the punishment of those w h o try to harm themselves (see note 123 below; and chapter 3, note 62 above). Older children (or even exceptional young children) may well possess these capacities (see Schrag, "Child in the Moral Order"). A s far as I can see, Locke is committed to n o criterion of (biological) age in distinguishing children from free individuals. It is even less clear what w e are to say about t w o other classes of be­ ings. Warmakers, w h o are also not under the laws or controlled by their reason, might seem to qualify for paternalistic care rather than punishment. Locke, of course, nowhere expresses any sympathy for this view—perhaps because warmak­ ers have knowingly (when they did have control) quit reason, and forfeited any title to consideration. O n m y view, warmakers are under the law (4.3). A final worry concerns the possibility of paternalism for those w h o harm or attempt to harm , z l

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U is n o t appropriate for goV^erranent t o "take care of" free persons, interfering with their choices solely for their own good. Politics is unlike medicine; except in this: that the patient m u s t consent to the surgery before the cutting begins, even if the surgery is in the patienf s best i n t e r e s t s . , •, We have already seen (in 2.2) one important Lockean argument with a p p a r e n t antipatemaljistic implication: the presumptive ar­ gument for natural moraj equality among persons. There are, ac­ cording to this argument, n o reasons w h y any person should be taken to begin with a^speaal right to interfere in the life of another person (whether for good! or harm). But the moral equality of all persons is in fact quite compatible with everyone's having the right to interfere paternalistically (even if it rules out some having a spe­ cial right in this regard). Sluice each has a duty (and hence a right) to preserve others, might n o t a c h have a right to interfere pater­ nalistically in the lives of dther adults? Locke needs more than the presumptive a r g u m e n t to.attack paternalism. 129

e

We can, in fact, find suggestions of two (by n o w familiar) fines of antipatemalist a r g u m e n t s in Locke—one Kantian (deontologi­ cal) a n d o n e rule-corisequentialist (although neither is concisely stated, as far as I know). T h e first (Kantian) argument is suggested throughout Locke's discussion of the limits of paternal power, a n d is simply this: paternalism for normal adults is degrading a n d in­ appropriate. It treats t h e m as if they were children, showing n o respect for their freedom, equality, a n d dignity. This argument is just an instance of the more general Kantian line (sketched in 1.3) that wrongdoing involves failing to respect others a n d failing to treat others as w h a t they manifestly are (and are conceded to 130

themselves. It is common e n o u g h in our societies for those w h o attempt suicide or pursue other obviously self-destructive courses to be confined and treated (hopefolly patemalisticaDy). Yet o n Locke's view, such individuals have (perhaps know­ ingly) breached the law of nature, which requires that w e preserve ourselves (1.5). Presumably, this calls for punishment, not paternalistic care, but Locke never menlions any cases of sW/-hanners forfeiting rights. Self-harmers, of course, d o not breach the rights of others, nor d o e s punishment seem necessary for either repa­ ration or restraint (i.e., to protect others). It seems likely that Locke would class attempted suicide cases as lunatics, w h o qualify for paternalism. But h e needs an account of h o w their forfeiture of rights, or the justifiable temporary abridgement of their rights, is brought about without justifying punishment. Interestingly, Kant also opposes suicide because w e are God's property, God's creations. But he allows that those w h o violate the suicide prohibition do deserve punishment (Lectures on Ethics, 153-54). ™ See Windstrup, " f r e e d o m and Authority," 259. ,M

Education, 4 0 - 4 1 . See Parry, John Locke, 7 9 - 80; Tarcov, Locke's Education, 9, 114-36.

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be). Just as the father w r o n g s the grown child by treating "him still as a b o y " (II, 69), the paternalistic prince w r o n g s his subjects. The second (rule-consequentialist) a r g u m e n t against paternalism is more familiar from Mill's antipaternalist stance in On Liberty: " m a n k i n d are greater gainers b y suffering each other t o live as seems good to themselves, than b y compelling each to live as seems good to the r e s t . " Since all persons, according to Locke, are equal a n d adequately e n d o w e d by nature for their " b u s i n e s s " (each being " n o better than other m e n " [I, 41]) a n d people are likely to k n o w best their o w n concerns and welfare, humankind will be best off (as a rule) leaving people a significant realm of per­ sonal liberty to p u r s u e their o w n good in their o w n w a y . Pater­ nalistic interference b y government is likely not only to be done wrongly (since government is unlikely to k n o w t h e particulars of an individual's case), but is likely as well to encourage m o r e of the same by setting a d a n g e r o u s precedent. In the case of y o u n g chil­ dren a n d t h e insane, of course, w e can be confident in the supe­ riority of our j u d g m e n t about w h a t is best for them; b u t as the threshold of maturity (or rationality) is approached, our justifica­ tion for confidence in the superiority of our practical wisdom to theirs currunishes sharply. Both of Locke's arguments against pa­ ternalism m a k e points that I believe are essentially correct. 133

1 3 2

While the Two Treatises is a great antipaternalist document, Locke's explicit rejection of paternalism is probably even clearer in others of his works. In A Letter Concerning Toleration, for instance, h e writes: In private domestic affairs, in the m a n a g e m e n t of estates, in t h e conservation of bodily health, every m a n may consider w h a t suits h i s o w n convenience, a n d follow w h a t course h e likes best. N o m a n complains of 01-management of his neigh­ b o r ' s affairs. . . . The care, therefore, of everyman's soul be­ l o n g s to himself, a n d is to b e left u n t o himself. But w h a t if h e neglect the care of his soul? I answer: w h a t if h e neglect the care of his health or of his estate, which things are nearlier related to the g o v e r n m e n t of the magistrate than the other? . . . Laws provide, as m u c h as is possible, that the good a n d health of subjects be not injured by the fraud a n d violence of n i

On Liberty, chapter 1, paragraph 13. Other aspects of the argument outlined b e l o w are at chapter 4, paragraphs 4, 12; a n d chapter 5, paragraph 20. Parry, "Individuality," 166, 170. 1 3 2

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others; they do not guard t h e m from the negligence or ill-hus­ bandry of the possessors themselves. (L, 136-37) 133

Similarly, Locke's r^ard fine on charity (discussed below in 6.3) is motivated largely b y the recognition m a t charity is an inappropri­ ate response to the status of a free person, capable of rationality and i n d u s t r y . The rejection of paternalism has obvious conse­ quences for Locke's^ views on toleration a n d charity; but we will see that it also affects his more general theory of property, the sub­ ject of chapter 5. 134

m

The magistrate should only protect citizens "from being invaded and injured by others," not "force them to a prosecution of their o w n private interests" (ECT 176). Parry, 'Individuality," 175.

221

F

I

V

E

PROPERTY RIGHTS

5.1. Natural Property Rights Most of what has been written about Locke's theory of rights con­ cerns the theory of property defended by Locke in chapter 5 of the Second Treatise. There is a sense in which this concentration is per­ fectly appropriate, for Locke characterizes all of a person's rights as "pror^rty" (as w e have seen). But the "property" that is Locke's chief concern in chapter 5 is property in a sense more fa­ miliar to contemporary readers: rights in external goods (such as consumables or land). Our rights in external goods, of course, play an absolutely central role iSjjackfils. ar^urrjerilaJn^the Treatises, 'and, as a result, so much has been written about this feature of tocke's position that it is hard to imagine being able to say anything really new about it. My ambitions in this chapter wiJJ, acc6i^im'^Y7-be-everrmme modest than those pursued elsewhere in ,this„yoju_rneJl will try to locate Locke's position and arguments iinore clearly, finding (as before) that he relies exclusively o n nei­ ther purely theological nor purely secular arguments (but a liberal mix of the two), and that the position to which he argues amounts to neither a defense of unlimited capitalist appropriation and a conservative acceptance of all existing property relations nor a de­ fense of purely conditional property and radical redistributionism. The Locke that emerges from his theory of property is again piti* ralistic and moderate. I will also argue that plausible bases for 1

2

1

One work (among many) that stresses this centrality is Wood, Capitalism, es­ pecially 49. But as Tully nicely demonstrates (in the most important work yet pro­ duced on Locke's theory of property), exactly how w e understand the point of Locke's central use of the concept of property depends on a host of broader inter­ pretive issues bearing on the reading of the Treatises as a whole (Discourse, espe­ cially 146-51). A recent and very important addition to the literature o n Locke's theory of property is chapter 6 of Waldron, Private Property. 3

My reading of Locke thus falls between traditional readings and the newer "re­ visionist" readings, largely because I find working in Locke at once both older and more modern conceptions of property. Others w h o find in Locke a similarly mod222

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many of Locke's claims about property rights can in fact be artic­ ulated, that t h e labor theory of property acquisition Locke defends is much m o r e mterestihg a n d promising than is usually allowed. These are large topics, more suitable for a book than for a chapter. I must aim m o r e , then,iat care and clarity in w h a t I do discuss here than at the t h o r o u g h treatment m y topic deserves. There h a s been n o rripre widespread or enduring intuition about property rights t h a n that labor in creating or improving a thing gives o n e special claim:to it. We feel that those w h o innocently WOrk tO diSCOVeit-rnaiSej Or Usefully P m p l n y «;nmP i i n o w T i g r l j r n n d ought to be allowed to keep it (if in so doing they harm n o others), fharit would pe w r o n g for others to take it away. It is the strength of this m t u i t i o n t h a t keeps alive trie interest in Locke's labor theory of property acquisition, despite generations of criticism of Locke's arguments. H o w e v e r badly h e defends his views, w e might say, surely Locke is o n to something. It is n o t just law or convention or agreement that, gives laborers_sgecial claim to the fruits of their labors. There ^ s o m e t h m g / a a t u r a l j a b o u t this claim, something it would b e s o m e h o w w r o n g for law to contradict. 3

4

Locke's theory of property exploits fully this intuition of " n a t u ­ ralness" in t h e relation between labor a n d property. The " p r o p erty" of which Locke writes in chapter 5 of the Second Treatise is a moral, not a legal or civil, ownership; a n d this moral relation is conceived of b y Locke as a natural relation in the strongest possi­ ble sense—it is sanctioned by natural law a n d presupposes n o agreements or c o n v e n t i o n s . Remember (from 2,3) that for Locke 5

6

erate stance include Schwarzenbach, "Locke's T w o Conceptions," 142, 146; and Wood, Capitalism, 16. > . •>' 1 will say nothing here afcout the considerable influence of Locke's theory of property o n more recent philosophers (e.g., the early socialists or contemporary libertarians); and m y discussion of the historical setting for Locke's theory and the intellectual background against which he wrote will be as minimal as care and clar­ ity permit. The best source for a thorough treatment of these latter concerns is again Tully, Discourse, especially chapters 1-4. 3

' See Becker, "Moral Basis," 204-5, As an indication of just h o w widespread such intuitions are, remember that even Marx and Engels wrote (in The Communist Manifesto, 232) " w e by n o means intend to abolish this personal appropriation of the products of labour, an appropriation that is made for the maintenance and re­ production of h u m a n life." !

Day, "Locke o n Property," 208; Medina, Social Contract Theories, 36; EHerman, "On the Labor Theory/' 294. * Rapaczynski, Nature and Politics, 3 0 6 - 7 ; Waldron, Private Property, 19-20, 138. Stealer's contrary view ("Natural Right," 4 3 - 4 4 ) is a simple function of his (on m y view and Locke's, mistaken) belief that n o right that arises from someone's act can count as a natural right. Locke's appeal lo natural law, in addition to reflecting his view of the obviousness of the connection between labor and property, fits well his 223

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a right is a natural right if its binding force is nonconventional and it could b e possessed in the state of nature. Locke's p r o p e r t y is not ;Onjyjjjatoai right in this sense, b u t ^nonconsensual natural nghfjj theory can t h u s be usefully contrasted not only with natural right theories in which property is a ^ n s g n s u a i n g h j f e . g . , the compact theories), b u t also with all conventionalist accounts (like Tlume's) a n d all accounts on which properry_can only b e a civil, legal, or political right (such as t h e theories ofHobbes/and the later ^pbsitivists). Property is for Locke neither just a useful arrange­ ment for the division of goods on which h u m a n k i n d informally settled n o r a right created solely b y civil law. For if property is a consensual, conventional, or legal notion, the rules of property can change as consent, conventions, a n d laws change, making our rights in effect subject to whatever constraints society deems /proper. O u r property is then not secure (defeating part of the point of having civil society). Locke's need for a natural, noncon­ sensual g r o u n d of private property rights, then, w a s clear; a n d la­ bor seemed, then as now, an obvious choice. 7

8

Labor is not, of course, the only ground of private property al­ l o w e d b y Locke. It is t h e sole ground of original exclusive property theoretical and practical needs. He can at once answer Filmer's critique of natural law theories of property and avoid the absolutist pitfalls of previous natural law theories (such as the "compact theories" of Grotius and Pufendorf). See Tully, Dis­ course, 5 4 - 5 5 - It is nonetheless excessive to say that for Locke 'Tabor is the only title to property which is in accordance with natural right" (Strauss, Natural Right, 236). Aside from the other titles to property noted by Locke (see below), even prepolitical compact (as in Pufendorf) would ground property in a way consistent with natural right. Locke's view is not that a compact among the original commoners would not be sufficient to ground property rights. Locke claims only that such a compact is not necessary for private property (for if it were necessary, people would starve, contrary to God's plan). Compact would have been a ground for origina] exclusive rights only if very unusual circumstances had held (i.e., if the consent of all the commoners had been practically obtainable). Note that Locke himself does elsewhere offer hints of a contractual theory of property (in the manuscript on "Morality"): "man at his birth can have no right to anything in the world more than another. Men therefore must either enjoy all things in common or by compact determine their rights. If all things be left in common, want, rapine, and force will unavoidably follow. . . . To avoid this estate, compact must determine people's rights" (MS c28, fol. 140). In Hobbes' state of nature there is "no propriety, n o dominion, no mine and thine distinct; but only that to be every man's that h e can get, and for so long as he can keep it" (Leviathan, chapter 13, paragraph 13). If property is what is bestowed by the king, for instance, then it can be with­ drawn by the king as well, giving him absolute power over the lives of his subjects (this concern, of course, was central in the minds of Locke's audience, w h o worried that James planned to repossess former monastic lands). See Seliger, liberal Politics, 199; Parry, John Locke, 52; Minogue, "Concept of Property," 19; Waldron, Private Property, 152-53,162; Vaughn, John Locke, 81. 7

H

224

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rights, the way in which something previously u n o w n e d can be­ come o w n e d . Chapter 5 of the Second Treatise is concerned primar­ ily with the defense of a theory of original appropriation, so natu­ rally labor is the central concept at work there. But once a property has b e e n established b y labor, subsequent title t o that property can be acquired in a yarieiyio.f w a y s (not prominently discussed in chapter 5): (Y)(inheritance\as we saw in 4.4) can give s u b s e q u e n t title, either consensually (as in inheritance based on spousal con­ tract) or "naturally" (as in filial inheritance); (2) need can give titlei to the surplus of another's property, as w e will see in 6.3; (3) o n e may acquire title to another's property as reparation for injuries^ done to o n e b y t h a t person. The right to take reparation is (as w e saw in 3.2) part of each person's natural executive right, based on the forfeiture of rights suffered by wrongdoers; (4) alienation of| property rights (by gift, sale, or trade, for example) can also give subsequent title to w h a t w a s first acquired by labor. Thus, com­ mon libertarian summaries of Locke's, position are misleading when they suggest that while original property rights rest o n n o n ­ consensual g r o u n d s (i.e., labor), subsequent rights are based on consent. For Locke accepts at least three nonconsensual bases for subsequent rights: filial status, need, and forfeiture. 9

10

In addition to these ways of creating property in external goods, each p e r s o n for Locke is born to a right with regard to external goods. What I have called " t h e right of self-government" includes for Locke t h e rights to preserve a n d control o n e ' s o w n life; a n d these rights entail a moral power (and consequent liberty) to make property in u n o w n e d (common) nature by one's labor, as well as a claim right not to b e excluded by the efforts of others from taking by labor one's fair share of the resources given in common to man­ kind by God (see 2.1 a n d 2.3 above). Thus, each person "begins" 11

* Tully mentions only inheritance and charity (need) as grounds for subsequent Sue to property in Locke, neglecting (3) and (4) below (Discourse, 131-32). All rights acquired in the w a y s specified below can be held either as natural rights or as civil rights in political society. I thus disagree with Ashoaft's claim that the right to subsistence is the only natural right to property in Locke (Locke's Two Treatises, 126), probably because w e disagree about what should be counted as a natural right in Locke (see 2.3 above). Mabbott oddly accuses Locke of inconsistency for saying that gift or legacy (which involve n o labor o n the part of the recipient) can ground property (John Locke, 148). This charge involves a fairly basic confusion of the grounds for original rights and the grounds for subsequent rights. Although TuDy d o e s characterize this "inclusive right" as a "power" (Dis­ course, 7 6 - 7 7 ) , h e also insists that it is chiefly to be thought of as a right to use the common property of rrankinci (ibid., 61). Since the kind of "use" Locke has in mind counts as labor, and labor grounds exclusive property, it seems more accurate 10

11

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with a "right to property" (the morally protected p o w e r to create property in up-to-a-fair-share of common nature), b u t not with a right i n a n y particular external goods. Particular exclusive rights (to this apple or that piece of land) arise only from labor (on u n o w n e d nature) or from one of the four g r o u n d s of subsequent title mentioned above, not directly from any "grant from G o d . " Given that a central theme of most contemporary writings on property or ownership has been the variety of possible forms of property, it seems important to ask at this point just w h a t Locke m e a n s when he speaks of "property." The primary sense Locke gives to the word " p r o p e r t y " is that of "a (moral) right." M y prop­ erty is simply w h a t e v e r I h a v e a right t o . Locke defines property in the Essay as "a right to anything" (E, 4.3.18), a n d those justly m a d e slaves (those w h o are rightless) are described in the Treatises as "having n o p r o p e r t y " (II, 174) or "stripped of all p r o p e r t y " (II, 173). O n e ' s property (propriety, swum) is t h u s w h a t e v e r is one's o w n , w h a t is proper to (belongs to or is part of) oneself," w h a t is 12

13

to describe the inclusive right as a right to make or take property (up to one's share), and not to be prevented by others from doing so. This is not the right of a commoner to use the commons and consume the product -without making exclusive property in it (as Tully misIeadingJy suggests). For Locke, use of the original com­ mons can create exclusive property, even if this property can only be used in ways consistent with God's law. Further useful discussion of the distinction between ex­ clusive property rights and inclusive (commons) rights can be found in Maepherson, "Human Rights," 9 5 - 97. Others w h o are careful to distinguish the general power to make property from particular property rights include Tully, R a p a a y n s k i ("Locke's Conception of Property," 306), and Lemos (Hobbes and Locke, 1 4 0 - 4 1 ; "Locke's Theory of Prop­ erty," 228). Ashcraft argues (with Tully) that labor is not what makes rights to prop­ erty. It is rather fulfilling our natural law obligations that gives us a right to subsis­ tence (Locke's Txvo Treatises, 130). On m y reading of Locke, w e are born to a general right to subsistence (although failure to perform our obligations can forfeit it); it is labor, however, which grounds specific property rights in particular things. " Tully, Discourse, 7, 113-16; Parry, John Locke, 49; Laslett, "Introduction," 1 1 5 16; Seliger, Liberal Politics, 165-66; Rapaczynski, Nature and Politics, 180. A s Olivecrona notes, Locke in fact uses "property" to refer both to the right itself and to that to which I have the right (the object that is my property) ("Appropriation in the State of Nature," 219). See also C h e m o , "Locke on Property," 51; Tully, Discourse, 61; Honored "Ownership," 128. I follow Locke in this usage, since I find it n o t s o much an inconsistency in Locke (as Olivecrona does) as a reflection of ordinary us­ age (according to which "X is my exclusive property" and "I have an exclusive property in X" are equivalent expressions, despite the fact that "property" refers first to the object and then to the right to the object. Compare "X is my right" and "I have a right to X-")- A s Tully notes, Locke is "clearly aware" of this "equivocity" (ibid.). 1J

'* Tully, Discourse, 7, 112; Olivecrona, "Appropriation in the State of Nature," 218-19, and "Locke's Theory of Appropriation," 222-25; Schwarzenbach, "Locke's Two Conceptions," 145. 226

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private. O t h e r frequently noted features of property are intended by Locke n o t as definitions of property (as is often claimed), but as statements of characteristics or components of property (rights that are part of property). For instance, Locke often writes of one's property as that which cannot be rightfully taken without one's consent: "1 have truly n o property in that which another can by right take from m e , w h e n h e pleases, against m y consent" (H, 138); "the n a t u r e " of ; p r o p e r t y i s " t h a t without a man's consent it cannot b e taken from him'' (II, 193; see also, e.g., 11, T407T94). Here, h o w e v e r / L o c k e m e a n s not to define property, but to point to one of its constituent rights: the right of security or nonexpropriation. All property (moral right) is secure from "prescription" in the form of laws or acts of expropriation (I, 6, 63,116). Similarly, Locke sometimes characterizes people's property as that which is "at their o w n dispose . . . or else it is n o p r o p e r t y " (D, 194), sug­ gesting to s o m e an intention to define property as that over which one has a right to decide h o w it will b e u s e d . But again, Locke only points Jiere to one important constituent of property: the right to u s e a n d m a n a g e . The only definition of property offered by Locke a n d t h e only one that is consistent with all of his claims about property is "that which one has a right to." Property t h u s conceived is, capable of further analysis into the constituent or component rights that make u p the moral relation of property. 16

17

It is correct, then, to insist that " p r o p e r t y " has only one meaning in Locke; b u t it is far from confused to claim that Locke uses " b r o a d " a n d " n a r r o w " senses of the term in his work, as so many have claimed. For Locke does use the word "property" to refer to larger a n d smaller classes of rights over things, as his argumen18

19

u

Yolton, Locke, 68. There is this further reason to be suspicious of Tutly's claim that standard cases of property are familial, in addition to those reasons adduced in 4.4. Ryan, "Locke and the Dictatorship," 246; Dunn, Political Thought, 176n; Tully, Discourse, 114-16. Parry, John Locke, 4 9 - 5 0 . Mabbott takes this idea to extremes, claiming that for Locke "to say anything is a man's property is to say that he can do what he likes with it" (John Locke, 147). In light of the many restrictions Locke places on how we may use our property (discussed below, primarily in 5.4 and 6.2), the problems with this view are obvious. A s do Tully (Discourse, 116) and Richards, Mulligan, and Graham (" 'Property' and 'People,' " 37-39). " For example, Macpherson, Possessn* Individualism, 198, 230, 247-50; Gough, Political Philosophy, 85; Olivecrona, "Appropriation in the State of Nature," 219; Goldwin, "John Locke," 496; Parry, John Locke, 49; Plamenatz, Man and Society, 1:215; Laslett, "Introduction," 115-17; Lemos, "Locke's Theory of Property," 227; Medina, Social Contract Theories, 32. 16

1 7

18

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tative n e e d s require. A n d while this does not exactly constitute a confusion o n Locke's p a r t , it is certainly a habit that is confusing for his readers a n d obscures some important points h e wants to make. Often, of course, Locke uses the w o r d " p r o p e r t y " to refer simply to all of our rights—our rights over our selves, our actions, o u r land, our external goods, a n d so o n . Locke famously s u m m a ­ rizes the things over which w e have rights as our "lives, liberties a n d estates, which I call by the general n a m e , p r o p e r t y " (II, 123; see also, e.g., II, 87, 173, 222). It is this largest class of rights that Locke has in mind w h e n he claims that "the great and chief end . . . of m e n ' s uniting into commonwealths a n d putting themselves u n d e r government is the preservation of their p r o p e r t y " (II, 124; see also, e.g., II, 87, 134, 222). Governments are instituted to se­ cure a n d enforce our rights to life a n d liberty, not simply our rights to land or m o n e y . At other times, however, Locke uses " p r o p e r t y " to refer to smaller subclasses of our rights. In chapter 5 of the Second Treatise, for instance, property refers almost exclusively to our rights in ex­ ternal things (or in " t h e several parts of that which G o d gave to m a n k i n d in c o m m o n " [II, 25])—our " g o o d s " (II, 173), " e s t a t e s " (II, 123), " p o s s e s s i o n s " (II, 36), "the fruits of the earth . - . , the earth itself" (EC, 32), a n d the products of "invention a n d a r t s " (II, 44). I say "almost exclusively," of course, because Locke also speaks briefly in chapter 5 of the property each h a s "in his o w n person . . . the labour of his body and the w o r k of his h a n d s " (II, 27). But the primary use of " p r o p e r t y " is clearly to refer to our rightful pos­ sessions i n land a n d moveable external g o o d s . Elsewhere t h e class of rights to which " p r o p e r t y " refers narrows even further. The prominent discussion of property a n d allegiance at the end of chapter 8 (§§116-22), for instance, clearly intends b y " p r o p e r t y " a n d " p o s s e s s i o n s " to refer to o u r rights in land only (see 6.1 below a n d 4.5 above). So Locke at different times uses " p r o p e r t y " to re­ fer to all of our rights, our rights in all external goods, a n d our rights in land. There is n o logical difficulty here (since all classes of our rights, h o w e v e r large or small, are equally property), b u t 20

21

3 0

A s Macpherson claims it does (Possessive Individualism, 220, 247-48). See also C h e m o , 'Xocke on Property," 51. C h e m o , "Locke o n Property," 51. A s Day rightly observes, Locke often sug­ gests that the rules (e.g., for taking, use, limits) of property are the same for all external g o o d s (e.g., n, 26, 32, 38), making n o real distinctions among land, prod­ ucts of the earth, and human artifacts ("Locke on Property," 207). 11

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these shifts in usage have caused serious confusions a m o n g Locke's interpreters. Assuming (as I shall henceforth) that Locke m e a n s by p r o p e r t y (all or some of) our rights over things (internal or external), w e have still n o t b e e n sufficiently precise i n specifying the content of Locke's concept or. property. For to s a y j h a t I have a right over something is n o t to say precisely whaQjmicjf moral, control over the thing I possess. My rights over different things (or different kinds of things) may consist of quite different ranges of constitu­ ent or c o m p o n e n t rights (claims, powers, or liberties). It has n o w become a commonplace, for instance, to observe that property is best t h o u g h t of as a b u n d l e or cluster of constituent rights, rights that are logically separable a n d are often separated in fact in exist­ ing systems of property. The result is the possibility (and actuality) of a w i d e range of forms of property or ownership, depending on which constituent rights make u p the bundle that comprises the "property right" in s o m e particular instance, system, or society. We can, for instance, contrast t h e rights that make u p the classical paradigm of m o d e m (capitalist) private property, with t h e rights at issue in " t h e n e w p r o p e r t y , " feudal dominion, or (more com­ munal) property in m a n y tribal societies. A well-known article o n ownership cUstinguishes eleven leading "incidents" of the liberal concept of "full o w n e r s h i p . " A m o n g these are the constituent rights to possess, use, a n d manage the thing, rights to the income, to capital, t o security, transmissibility, and absence of term in one's possession of it. It is probably fair to say that the central constituents of standard instances of property are the rights to use 22

23

24

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n

I will discuss o n e such confusion (about what kind of property is "joined" to the commonwealth) in'6-1. Another is Macpherson's overemphasis o n material property (especially land) in his analysis of Locke's arguments, leading to his as­ sertion that Locke favored greater political rights for landowners. Macpherson be­ lieves that Locke refers to the narrowest class of rights as "property" w h e n dis­ cussing the limits on governmental authority and the right of resistance. A s a consequence, "the people" is taken to be the propertied class only. For an effective refutation of Macpherson's reading of Locke o n property, see Ryan, "Locke and the Dictatorship," especially 247. 2 3

The m o s t effective presentation of this position is in several papers by A. M. Honored See his "Ownership" and "Property, Title." For elaboration, see, for ex­ ample. Snare, "Concept of Property," 204; Marvodes, "Property," 261; Becker, Property Rights, 18-22, and "Moral Basis," 2 0 5 - 7 ; Waldron, Private Property, chapter 2. 1 4

Reich, " N e w Property." See Waldron's remarks on the difference between property systems generally and private property in particular (Private Property, 31-46). Hoaore, "Ownership." s

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the thing, to alienate it, to exclude others from using it, a n d to nonexpropriation of it. But it seems reasonable to ask at this point to w h a t extent Locke's concept of property conforms to such "stan­ d a r d " cases—that is, w h a t are the constituent rights that m a k e up Lockean property? Jt is clear that property rights In Locke cannot a m o u n t to abso­ lute rights over a t h i n g , for Locke accepts (as w e will see in 5.4) many limits o n our use of property. Nor, I think, can Locke's prop­ erty even be the "full o w n e r s h i p " H o n o r s describes (which, of course, includes prohibitions on harmful uses of property), for Locke allows (among other things) that property in external goods must continue to b e used by the owner, else it returns to c o m m o n and m a y b e taken b y another (II, 38) (contrary to the "full owner­ s h i p " rights to the capital a n d to absence of t e r m ) . Indeed, it may be difficult to specify any one set of constituent rights in which property consists for Locke at all. For while it seems likely that Locke w o u l d accept the m o d e r n view of property a s a b u n d l e of r i g h t s , h e might well insist that property consists in different component rights d e p e n d i n g on the kind of property in question. The law of nature that defines our rights, remember, c o m m a n d s the best preservation of mankind, a n d it s e e m s natural to argue that which kind of property (e.g., in our selves, our land, our ar­ tefacts, etc.) is at issue will bear importantly on the question of what extent of control over the thing will best facilitate m a n k i n d ' s preservation. Nonetheless, Locke clearly s e e m s t o h a v e in m i n d at least certain rights as necessary components of all kinds of p r o p ­ erty. The rights to possess, use, and manage the thing, to exclude 26

27

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29

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Shapiro, Evolution of Rights, 146-47. O n absolute ownership of or dominion Over a thing (i.e., unlimited, perfect title), see Reeve, Property, 18-19. That Locke does not aspire to a defense of "full ownership" provides him with some measure of defense against those w h o have convincingly argued that the labor theory (which Locke embraces) cannot yield full ownership rights. See, for example, Becker, Property Rights, 3 9 - 4 4 ; Gould, "Contemporary Legal Concep­ tions," 227-29; Christman, "Can Ownership Be Justified?" 1 6 0 - 6 2 , and "Self-Own­ ership," 39. » Sartorius, "Persons and Property," 203. This constitutes the beginning of a response to Lomasky's claim that a Lockean will have a problem with the idea of property as a bundle of rights (Persons, Rights, 119). How, h e asks, could one get less than complete ownership of an acorn? Prop­ erty rights can vary in extent only if they are socially determined, Lomasky argues. But the Lockean response must be that natural, nonconventional property rights can vary in extent if their justification (e.g., in terms of the best preservation of humankind) requires variation (as it seems plausible that it should, since m y right to, e.g., alienate acorns will affect humankind quite differently than m y right to alienate my self or m y labor). B

M

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others (at least w h e r e they have n o prior or m o r e weighty h u e — as the n e e d y d o to our surplus goods), and to security or nonexpropriation (similarly qualified) seem to be essential constituents of all p r o p e r t y for Locke. Similarly, some rights that make sense only with respect to external goods (such as transmissibility) seem uncontroversial a s features of Lockean property. Beyond this, however, t h e question of the precise content of property for Locke becomes m o r e cluriCUlt to determine. Does property in Locke include, for instance, the "standard case" rights t o alienate or destroy the o w n e d thing? Tully appears to argue that it d o e s h o t , and is especially forceful concerning the right of alienation: alienation rights are no part of the common property given MS by, God, no part of any natural rights to land, and no part of our property in our lives and liberty; "alienation is not a n analytic feature of the concept of property for Locke." But there are good g r o u n d s for questioning Tully's view. Early in Locke's writings o n ^society and morality he argues that "both ownership a n d t h e rights of property (are), in general entirely free, it being o p e n to everyone individually either to harvest his wealth or to give away his riches to anyone else and, as it were, to transfer them" (Second Tract, 229). Later h e claims that "propriety and possession" involve for owners " t h e right... to dispose of them, as they please" {Education, 305), and h e speaks frequently in the Treatises of the property holder's right to "dispose of it by his pos­ itive g r a n t " o r to "transfer" it (e.g., I, 87-88). N o w one might, of course, s u p p o s e that' Locke intends to defend only the alienability of our rights in external moveable goods, while still maintaining (a la Tully) that property in land, in our lives a n d liberty, and our common use rights do not include the right of alienation. But this view is h a r d t o defend as well. For, t o begin w i t h land, it is hard to u n d e r s t a n d h o w parents could leave land to their children or join land to the commonwealth (both activities being described by Locke as occurring in the state of nature), if our natural property in land is n o t alienable. Indeed, Locke says of the father's land: "that estate, b e i n g [the] father's property, h e may dispose or settle it as h e p l e a s e s " (II; 116). Second, I have argued at length else­ where that those rights that we possess over our lives and liberties are consistently treated by Locke as in principle alienable; while Locke is in certain ways confused about the implications of his 30

31

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3 1

See Schwarzenbach, "Locke's Two Conceptions," 168n. Tully, Discourse, 1X3-14, 99, 114, 88. 231

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own moral theory, t h e position he actually seems to defend is that all rights (property) are alienable, whether these are rights in our­ selves, o u r moveable goods, or our l a n d . Finally, o u r "inclusive" common rights are either distinguished by Locke from " p r o p e r t y " or are taken by h i m to b e alienable as w e l l . 1 take Locke's view to be that property does include a constituent right of free (harmless) alienation. I What about the right to destroyj3ur„pXQP,erjty_?Jt m a y seem that Locke could hardly have in mind a right to destroy o u r selves, our liberty, or t h e land, opposing, as h e does, suicide, voluntary en­ slavement, a n d waste. A n d this analysis is, of course, partly cor­ rect. We cannot have rights over ourselves, others, or nature to d o that which jeopardizes t h e effective preservation of m a n k i n d (our­ selves or others). But this is not to say that t h e rights (property) w e do h a v e d o n o t include a constituent right to destroy t h e t h i n g . Locke does not, I think, help u s much with his very few 32

33

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"Inalienable Rights." The key to this reading of Locke's texts is that according to Locke w e simply d o not have rights to kill or severely endanger ourselves. Those rights w e do have over ourselves (our property in ourselves and our liberty) are all alienable. Others w h o take alienation to be a component right of property in Locke (although often for quite different reasons than m y own) include Strauss and Macpherson (and their respective followers); Parry, John Locke, 52; Laslett, "Introduc­ tion," 116n; Snyder, "Locke on Natural Law," 733; Schwarzenbach, "Locke's Two Conceptions," 149, 168n; Andrew, Shylock's Rights, 94-95; Den Hartogh. "TuUys Locke," 659 - 64. The alienation of property is, of course, a bit of a puzzle o n one understanding of Locke's arguments. For if labor literally joina part of the agent (the a g e n f s labor) to the object, h o w do the agent and the object ever become sufficiently "unjoined" tor another to acquire dear title to the object by alienation (Rapacrynski, "Locke's Conception of Property," 306-8)7 A s w e will s e e below (in 5.3), however, Locke n e e d n o t take labor to be our property in t h e s e n s e that it (and what it is joined to) remains ours forever. Rather, it is ours in the sense of being rightfully under our control (to keep or alienate). Labor must b e understood as purposive activity, so that our plans for it (and what it is joined to) will partly determine the extent and duration of our rights. It is worth noting that in the central passages in which Locke discusses what God has given to mankind in common, he seems to contrast, not equate, the gift w e were given with "property" (see Rapaczynski, Nature and Politics, 183-85). In I, 87, for instance, the "right in common" is contrasted with "property," as it is in n, 25.1 return to this point below in 5.2. Most of Tully's case against property's essen­ tial alienability rests on his observation that "men cannot alienate the world which is their property in c o m m o n " (Discourse, 88). But this ts because people d o not have a right in (or to) the world that they might alienate. They have, rather, the right to use and thereby make property in their fair share of the world (and the right not to d o this, unless failure endangers themselves or others w h o have a claim to sup­ port). There is no textual evidence in Locke that suggests that he takes that right (the common right to make property) not to be alienable, whether or not h e wishes to call the common right "property." 33

M

Day, for instance, takes the right to destroy to be a constituent right of prop­ erty in Locke ("Locke on Property," 211). 232

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pronouncements about the right to destroy one's property. At one point h e suggests that "nothing w a s m a d e by God for m a n to spoil or destroy" (II, 31);. b u t at another h e says that "a right to destroy any thing by using i f ' i s "the utmost property m a n is capable of" (I, 39), suggesting p e r h a p s that there are different forms of prop­ erty some of w h i c h dcf. and some of which d o not include a right to destroy t h e thing. Later, however, Locke d a i m s that "property . . . is for the benefit a n d sole advantage of the proprietor, so that he may even destroy th:e thing that h e has property in by his use of it, w h e r e n e e d requires" (I, 92). From these passages w e are entitled to conclude n o more than this: the right to destroy what one has property'in is a t least often a constituent part of property, but this is not a right to destroy the thing frivolously. We have a right to destroy things w e own only in our use of t h e m for "the comfortable preservation of (our) beings" (I, ST). The right to freely destroy o u r property for whatever reason w e choose may b e part of the liberal concept of "full o w n e r s h i p , " but it is n o t a com­ ponent of Lockean property. 35

36

We will gain a fuller understanding of the content of Locke's "property" along t h e way, as w e proceed to discuss the ground of a n d limits o n property that Locke acknowledges. First, however, we should try to b e clear about h o w w e are to understand Locke's arguments in chapter 5 of the Second Treatise. Given that the "prop­ erty" Locke t h e r e discusses is the right (or b u n d l e of rights) de­ scribed above, w h a t is Locke trying to tell u s about it? O n e view is that Locke is simply offering us a justification of private p r o p e r t y . At t h e opposite extreme is the view that Locke is not trying to 37

3 5

1 , 53 seems to suggest mat one w h o truly creates a thing "might indeed have some pretence to destroy his o w n workmanship." But I doubt that even here Locke has in mind a right of pointless or frivolous destruction. ** Ashcraft attributes to Locke "a prohibitive injunction against any humanly ad­ vanced claims to exercise a right o( destruction over God's 'property' " as part of an effort o n Locke's part to respond to Filmer's absolutism (Revolutionary Politics, 260-61). There are, however, enough other limits set in Locke's theory, both on what w e can have property in and o n how we can use our property, that he can refute Filmer's conception of "absolute property" without needing to deny outright that property sometimes includes a constituent right to destroy what God has made. Indeed, Macpherson contends that Locke is not only justifying property, but unlimited appropriation and the unrestrained acquisitiveness of capitalism. Locke's strategy, on this view, is b> defend property in traditional natural law terms and then s h o w h o w the natural law limits on acquisition can be overcome (Possessive Individualism, 221-31). Others w h o see Locke's project as a justification of property include Day ("Locke o n Property," 207), Rapaczynski (Nature and Politics, 182-85), and C h e m o ("Locke o n Property," 51). 37

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justify (or explain the origin of) property at all. O n e could argue, for instance, that Locke is only defending t h e particularization of the c o m m o n s , trying to s h o w h o w w h a t God gave in c o m m o n to mankind can b e lawfully divided to give exclusive rights. But the rights in question, far from being rights that permit unlimited ac­ cumulation, would only b e exclusive rights " t o u s e a n d enjoy God's property for God's p u r p o s e s " (as part of a conditional trust from G o d ) . 1 will maintain that neither view accurately captures Locke's intentions a n d that the opposition between t h e m suggests an opposition that is no part of Locke's understanding of the prob­ lem of property. There is for Locke no conflict between thinking of labor as grounding exclusive rights to k e e p a n d accumulate goods a n d thmking of persons as trustees or stewards ot God's property. Locke is justifying private property, explaining h o w the corrunpn c a n b e _ ^ ^ o n property, 38

alfaT the s a m e time. H e aims to present a full theory oforiginal naturaT~prOperty rights (and a position on the relation of natural property to property in civil society). This includes: (a) a n expla( nation of the origin of property a n d a justification of the rights in question, (b) an account of the extent of the property created by any appropriative act, (c) a n account of t h e limits o n our u s e of our property, a n d (d) an account of the limits o n total accumulation of" property. Before I can proceed to Locke's theory, however, I must answer one last question: w h y bother? This is n o t just the question p u t by the natural rights skeptic (2.5), b u t a deeper a n d more troubling one. Apart from its historical interest, w h y should w e care about the content of a theory of original natural property (i.e., about h o w u n o w n e d things can become owned, a n d to w h a t extent)? It may seem that such a theory has no contemporary relevance, for we never seem to mix our labor with u n o w n e d nature anymore. Force and fraud have long since upset any lawful distribution of goods, and o u r knowledge of the history of that process is so inadequate that theories of original appropriation are not even useful for deal» Tully, Discourse, 3, 99-105, 122. See also Yolton's less dramatic (and more ac­ curate) claim that Locke's "main concern" is explaining "how parbcularisation of the common is possible" (Compass, 187-95). I will reject Tully's suggestion that Locke's conception of this problem of particularization results in Locke's maintain­ ing that labor grounds n o rights over one's goods (ibid., 131) and that individual property in land is not possible (ibid., 122-25, 153-54). See 5.2 below; and the convincing responses to Tully in Ashcraft, Revolutionary Politics, 271n; Mackie, "Re­ view of Tully," 92; Waldron, Private Property, 156 - 5 7 , 208n, 220; D e n Hartogh, 'Tully's Locke," 6 5 6 - 6 4 ; Cohen, "Marx and Locke," 381-86. 234

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irtg with problems of contemporary rectification of past injustices. So a theory like Locke's m a y seem of n o interest at all, except as a scholarly m o v e in r e s p o n s e to other theories like Locke's. While these complaints have some justification, they badly ex­ aggerate the extent to which our current concerns about property are distant from concerns about the natural roots of property (if any). For w e still have a serious interest in possible moral justifi­ cations (or condemnations) of current property systems; a n d t o the extent that such systems can be thought of as a series of moves (legitimate or illegitimate) from a state of affairs in which u n o w n e d goods w e r e taken (roughly) in proportion to labor, w e can gain moral insight ir^to these systems. When w e see the ways in which current forms of p r o p e r t y fail to distribute according to labor (and fail to respect other natural limitations o n property), for instance, we can see more cleanly the nature of the n e e d for different a n d further justifications bjf current holdings. We need not have full information about t h e history of all holdings from Adam to Donald T r u m p to see. that some arrangements reliably yield distributions of rights t h a t cqntradict principles of natural property, a n d w h i c h are for that reason morally suspect. N o r is it possible to deny that even within a complex property system in a time w h e n few goods are u n o w n e d , our uatuitions about property rights may still con­ form fairly closely t o t h e principles of natural property espoused by Locke—for instance, in cases of noninstitutional discoveries or inventions, simple handcrafts, and small holdings of a variety of sorts. A d d to this the fact that w e often forget that there are vast tracts of u n o w n e d land a n d unused resources still available to h u ­ mankind, n o t only within the territories of organized political communities, b u t external to them (as in Antarctica a n d o n other bodies in our solar system). While takings in these areas are gov­ erned by domestic law; a n d international treaty, it is far from u n ­ interesting to ask w h a t the rights a n d duties of individuals a n d nations w o u l d b e independent of such conventional arrangements. Any assumption that.such questions are irrelevant m u s t rest u p o n the (unwarranted) assumption that all domestic laws a n d interna­ tional treaties are legitimate and binding not only on all nations 39

M

This is a charge often brought against Nozick's entitlement theory. For accu­ sations of contemporary irrelevance leveled specifically at Locke, see Mautner, "Locke on Original Appropriation," 267-68; Held, "Introduction," 5 - 6 ; Lodge, "New Property," 235-37; Waldron, Private Property, 258 - 5 9 ; Minogue, "Concept of Property," 20; Wheian, "Property 3 5 Artifice," 103-4; Lomasky, Persons, Rights, 115-16. For opposing v i e w s (closer to my own), see Schmidtz, Limits of Government, 28; and Lemos, "Locke's Theory of Property," 226. 235

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b u t o n all individuals (terrestrial or alien). Once the question of illegitimacy is raised, the success or failure of a theory of natural property rights has quite direct contemporary interest. For all of these reasons, then, I enter my discussion of Locke's (and the Lockean) theory of property without u n d u e concern that the en­ terprise may b e of only academic interest. 5.2. Labor: The Arguments We should begin where Locke begins: with "the original commu­ nity of all things amongst the s o n s of m e n " (I, 40), w h i c h is the result of God's gift to mankind. God, as creator of the earth, en­ joys t h e "right of creation" over it. H e is "sole Lord and proprietor of the whole world" (I, 39). Although God retains His rights over t h e world in the last analysis, H e h a s "given the w o r l d " (along with "all the fruits it naturally produces a n d beasts it feeds") "to m e n in c o m m o n . . . for the support a n d comfort of their being" (II, 26). As a result of this "gift" (which, as w e will see, is really more in the nature of a trust), m a n k i n d shares a "dorrunion in c o m m o n " (I, 29), a "right a n d power over the earth a n d inferior creatures in c o m m o n " (I, 67). This c o m m o n right initially excludes any private dominion, either for A d a m (I, 24) or any other person (H, 26)." 40

]

The problem Locke sets for Mmself in chapter 5 of the Second Treatise is this: h o w is it possible from this "original community of all t h i n g s " for any person to come to possess "a private dorrunion" (II, 26) in any thing (a "private possession" [II, 35])? H o w can per­ sons " m a k e . . . distinct titles to several parcels of [the world] for their private u s e s " (U, 39)? Further, Locke agrees with Filmer that h e m u s t d e n y himself o n e popular answer (used by Grotius a n d Pufendorf, for instance)—that private property derives from the 4 0

"The goods of fortune are never so much ours that they cease to be God's" (ELN, 203). See Ashcraft, Locke's Two Treatises, 85. I discuss the "right of creation" further below, in connection with Tully's "workmanship model" (and above in 1.2). *' Adam's original private dominion, of course, is urged by Filmer and o p p o s e d not only by Locke, but by Grotius and Pufendorf as well. McNally argues that in denying Adam's private dominion, Locke faced the disagreeable alternative Filmer described: that (a la the Levellers) all modern property must be illegitimate, m o d e m inequalities constituting an obvious theft of God's common gift (given equally to all). So Locke must avoid both Rimer's absolutist position a n d the Levellers' rejec­ tion of inequality {"Locke, Levellers and Liberty," 27). I will suggest below (in 5.4) that Locke is more attracted to egalitarian, leveling conclusions than McNally al­ lows. 236

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consent of t h e other commoners. Locke will "endeavour to s h o w how m e n might come t o h a v e a property i n several parts of t h a t which G o d gave to mankind in common, a n d that without a n y express compact ofall the c o m m o n e r s " (II, 25). It is important here to distinguish between the " c o m m o n s " outside of the territory of a legitimate civil society (such as the original community of things or the wilderness in America in Locke's day—"in the beginning all the world w a s America" [II, 49]), a n d the " c o m m o n s " within some polity (such as " t h e land that is common in England," which is "the joint property of this country or this parish" [0, 35]). In the former case only, Locke tries to show that persons may appropri­ ate parts of t h e commons for their private property without the consent of t h e other commoners. In the latter case, w h e r e things are left c o m m o n " b y the law of the land," " n o o n e can enclose or appropriate a n y part without the consent of all h i s fellow com­ moners." W h a t is "left c o m m o n by compact" can only be m a d e private by a n e w compact (II, 3S). Locke's problem, then, is h o w "the private" can lawfully emerge from t h a t which is naturally common. Indeed, Locke makes it d e a r that his problem would remain the same even if h e chose to disregard the revelation of God's gift to mankind. Both "natural r e a s o n " a n d "revelation" suggest our common right to use the earth, its fruits, a n d the "inferior creatures" for our pres­ ervation (If, 25). So even a secular project on property rights m u s t begin with the community of all things (thus allowing Locke to think of his project as the heart of either a theological or a secular approach to property). Locke is aware, however, that the idea of a natural community of things is not an unambiguous notion. A common right suggests that persons must be equals (against Filmer's derivation of rightful absolute government from unequal property in the earth). But persons may be equals in a variety of ways. Pufendorf, for instance, distinguishes b e t w e e n a "positive community'' of possession (where all are equals by jointly holding property) a n d a "negative cornmiinity'' of possession (where all are equals by having no property, but only an equal liberty to u s e ) . We can distinguish at least four ideas that might be in­ tended by " t h e original community of all things": 42

43

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Locke has in mind here primarily the land as remaining common. The com­ moner in Locke's England could without wrongdoing harvest certain goods from the commons {without the necessity of obtaining the consent of the other common­ ers), while the land remained common. Pufendorf, De Jure Naturae et Gentium Ubri Octo, 4.4. t-9. 4 3

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Negative community: all persons are at liberty (morally) to use the world a n d its products, but n o n e has a protected liberty or exclusive right to anything (hence, there is n o property, which requires at least a n inclusive right). Pu­ fendorf accepts a version of this, as does Hobbes (whose "right to every thing" is simply an unprotected moral lib­ erty). This has been as well the standard interpretation of Locke's "original community." 44

( j 2 ^ Joint positive community: all persons jointly o w n the world, each holding an undivided proportional share (as in in­ stances of contemporary "concurrent estate," such as "joint tenancy"). Grotius may have this idea in mind, a n d Locke is occasionally read as intending this form of "original c o m m u n i t y . " 45

U3j} Inclusive positive community: each person holds a n inclu­ sive use right to the common; the common belongs to all only in the sense that each has a protected right (a claim right) to free use of the c o m m o n for s u p p o r t a n d com^ fort.« ((&)

Divisible positive community: each person has a (claim) right to a share of the earth and its products equal to that of every other person. Each m a y take an equal s h a r e in­ d e p e n d e n t of the decisions of the other commoners; each has property in the sense of a claim on a n equal share (but not possession of or a claim on any particular share). 47

4 4

See, for example, Seliger, Liberal Politics, 1 8 8 - 90; Rapaczynski, Nature and Pol­ itics, 181-85, and "Locke's Conception of Property," 309-10; Parry, John Locke, 5 1 52, 78; Goldwin, "John Locke," 4S6; Kelly, " 'All Things Richly to Enjoy,' " 284n; Schwarzenbach, "Locke's Two Conceptions," 143; Waldron, Private Proverb/, 155; Ryan, Property and Political Theory, 29-30; Winfrey, "Charity versus Justice," 430. * See, for example, Thomson, "Property Acquisition," 6 6 4 - 65. Others take se­ riously the idea of joint positive community as the proper view of original com­ munity, quite independent of any interpretation of Locke. See, for example, Roemer, "Challenge," where what I call joint community is called "public ownership" and contrasted with mere "common ownership" (which, for Roemer, involves mere rights of access or u s e , conditional o n noninterference with others, as i n my option (3] below) (697- 99, 700, 705). Cohen also distinguishes in the same way joint and common ownership ("Self-Ownership," 129). This is how Tully believes Locke intended to "redefine" positive community (Discourse, 126-29), Steiner seems to understand our original common rights in this w a y and to read Locke as agreeing with him ("Natural Right," 4 8 - 4 9 ) : the "spirit" of Locke's claims "is captured in the requirement that each individual has a right to an equal share of the basic non-human means of production" (49). Steiner begins with di4 7

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Which of these forms of "original community" d i d Locke believe was created b y God's gift of t h e earth to mankind? T h e textual evidence s e e m s inconclusive. O n the one hand, as w e have seen, there is sigrdficant s u p p o r t for the "negative conuTiurdty" Teading in Locke's a p p a r e n t unwillingness to characterize mankind's com­ mon rights as " p r o p e r t y / ' Indeed, in the k e y passages (e.g., I, 87; a n d II, 25) o u r c o m m o n rights seem to b e contrasted w i t h "prop­ erty" (suggesting that there is no property prior to individual ap­ propriation). A n d in I, 86 o u r property (in t h e creatures) is said to be " f o u n d e d u p o n " (not "identical to") t h e common right of use (I, 92 suggests, similarly, that property is derived from, n o t iden­ tical to, t h e right of use—-property's "original is from t h e right a man h a s to u s e " ) . Locke's efforts seem more designed to establish h u m a n precedence or favored status i n t h e world (e.g., I, 40) t h a n our " p r o p e r t y . " O n the other hand, there are reasons to b e u n ­ h a p p y with reading Locke as a simple "negative community" the­ orist. First, of course, Locke indisputably accepts some individual property a s a h original consequence of God's creation a n d dona­ tion—namely, our property in our persons, our bodies, a n d our labor (11, 27). Second, a negative community alone would seem to establish n o limits o n t h e kind or extent of appropriation that is permissible. A n d (Locke clearly intends to impose limits on a p 48

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visible c o m m o n property because he believes that one must have rights in shares of the c o m m o n if o n e is fever to derive private property in particular things. Prop­ erty cannot c o m e from rlbthing. A s Mack correctly observes, however, o n e can be­ gin with negative community (only moral liberties with respect to the world) rather than positive shares, provided one allows (as Locke seems to) that w e each have property in our o w n b o d y a n d labor ("Distributive Justice," 140-43). See Shapiro, Evolution of Rights, 92; and Rapaczynski, Nature and Politics, 1 8 3 84. Rapaczynski takes our shared right to be just a liberty of using the fruits of the earth. Property, however, involves more than this; in particular, h e claims, it in­ volves rights of control (185). Tulh/s efforts to discount these facts are unsuccessful. I, 28 d o e s not character­ ize property as 'the dominion of the whole species," as Tully claims it does (Dis­ course, 60). "Property" is hot used in I, 28. Nor does Locke call the "right" in I, 41 "property," let alone give it as his "definitive formulation" of mankind's property (as Tully claims, ibid.). A n d Tully misreads I, 23 as repotting Locke's agreement with Selden (ibid.); w h e n the point is clearly made by Locke only arguendo. Contrary to (e.g.) Hobbes' acceptance of the "right to every thing" extending "even to o n e another's body" (Leviathan, chapter 14, paragraph 4). For a vigorous defense of natural property rights in our bodies, see Wheeler, "Natural Property Rights," especially 2 7 3 - 7 4 . Fressola, "Liberty arid Property," 319-20. Fred Miller seems to suggest that Locke must have h a d a positive community in mind, since his acceptance of the Lockean proviso is necessary only if others have a right that appropriation might violate ("Natural Right to Private Property," 283-85). I will suggest below, h o w w

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propriation (as w e will see in 5.4). Finally, it is simply indisputable that the common right to use the earth a n d the inferior creatures (I, 24, 67, 86, 87) is still a right, a n d Locke characterizes all rights as " p r o p e r t y " (suggesting that there m u s t be original c o m m o n property)This problem of interpretation suggests another problem: the imprecision (or nonexhaustiveness) of the distinction between positive and negative community. O u r common right to use the world a n d n o t b e excluded from it is property; b u t it is n o t p r o p ­ erty in any particular thing. It is (I have claimed) a moral power (correlating with the duties of others to allow its exercise) to make property in u p to a fair share of w h a t God has given u s . O u r orig­ inal condition for Locke can thus reasonably be described as either one of "negative community" (there being no property, either joint or individual, in any particular external thing), or o n e of "positive community" (each person having the right to be allowed to create property). In any event, I suspect that "divisible positive community," as described above, probably comes closest to Locke's intentions, providing w e remember that m a n k i n d ' s com­ m o n right is only a -power to take property. We may w o n d e r w h y Locke is not clearer about his intentions. O n e possibility is that he simply did not k n o w w h a t kind of "com­ munity of things" h e w a s working with in his arguments. But a more charitable answer is possible. It may be that it seemed to Locke not to matter which conception of community h e employed in his arguments, that h e believed his central claims could be sus­ tained regardless of whether the original community was negative or positive (and so regardless of w h e t h e r o n e was arguing in the­ ological terms, which generally favor positive community, or sec­ ular ones, which usually favor negative community). Locke's problem, remember, w a s to show h o w private property could be rightfully derived from original community, without appeal to a compact a m o n g the commoners. A n d to deal with this problem, Locke employs two main claims. Thejirst jp t h e , r e l i g i o n s p m p n R i tion that G o d m u s t have intended p r i v a t e property, tp, arise from onginal community without consent, since private property is needed for our preservation and a g e n e r a i c q n s e n t o f the common­ ers woulct have been impossible to obtain (II, 26, 28; see Below). O n this reasoning, it does not matter w h a t kind of community w e begin with; it m u s t be possible to derive property from it, since 52

ever, that division of e v e n a negative community may n e e d to b e constrained by considerations of equality and fairness. Tully, Discourse, 112-13. 5 1

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this is God's will. The second d a i m is the neutral (i.e., neither es­ sentially theological i nor essentially secular) proposition that ap­ propriation w i t h o u t prior consent is lawful (rightful) if no other person is h a r m e d b y the appropriation (II, 33; see 5.4 below). The acceptance of this claim can also be taken to render moot the issue of w h a t kind of original community w e accept. If the community is negative, appropriation'requires no consent of the commoners, because n o person;can d a i m to b e harmed w h e n another takes what that p e r s o n h a d no property in (right to, claim on) . A n d even if the community is positive, Locke believes (I will contend), it is at least sometimes true that taking n o more than one's fair share harms n o o n e , a n d so requires n o prior consent from the common­ ers. Sometimes taking one's fair share of even undivided joint property is perrnissible, if doing so does not make the common worse for t h e other commoners. This is the point of Locke's con­ trasting the English common with the original common. Endosure of the English common (which is, remember, "joint property" [II, 35; m y emphasis!) is impermissible without the consent of the commoners, a n d one of the reasons Locke gives for that fact is this: "the remainder, after such e n d o s u r e , w o u l d not b e as good to t h e rest of the commoners as the whole w a s , w h e n they could all make use of the whole: whereas in the beginning a n d first peopling of the great c o m m o n of the world, it was quite otherwise" (II, 35). The implication of t h e passage s e e m s dear. Even a positive com­ munity of p r o p e r t y m a y be divided without consent if it harms n o others, as would be the case in the early ages of humankind (I return to this claim below a n d in 5.4). So again whether the orig­ inal community of things w a s positive or negative seems not to matter to Locke's derivation of the private from the common in­ d e p e n d e n t of compact. 53

1

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See Parry, John Locke, 5 0 - 5 1 . Gibbard argues that from a state of initial equal use rights (negative commuruty), n o consent is necessary to reduce the opportuni­ ties of the other commoners; but consent is necessary to reduce their rights, as happens w h e n one claims an exclusive right to part of the common ("Natural Prop­ erty Rights," 237-38). Locke's view (which seems to me substantially correct) ap­ pears to be that this kind of reduction of right (the loss of the right to use the ap­ propriated object) constitutes no harm to any person, provided that person is left a fair share for appropriation. Locke's obvious willingness to accept enclosure and appropriation without consent on the original common counts strongly against Tully's reading of Locke as defender of the common and opponent of permanent, alienable property in land (Discourse, e.g., 99, 122-25, 169; see also Ryan, Property and Political Theory, 35-36). See 5-4 below. M

w

Becker suggests that in cases of genuine joint ownership "the decision to allo­ cate specific shares at all must b e a joint decision" (Property Rights, 25); this is Co­ hen's view as well ("Self-Ownership," 129). If correct, this view implies either that 241

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T h e private emerges from the common, according to Locke, as a result of labor. It is labor that " p u t a distinction between [the ap­ p r o p r i a t e d objects] a n d common. . . . The labour that w a s mine, r e m o v i n g t h e m out of that common state they were in, hath fixed m y p r o p e r t y i n t h e m " (II, 28). This is, as w e h a v e seen, a compel­ ling s u g g e s t i o n , although by no means o n e that w a s original with Locke. W h a t is original is the justification (or rather, justifications) t h a t Locke offers for h i s belief that labor is t h e sole g r o u n d of orig­ inal p r i v a t e p r o p e r t y . O n e traditional reading of the Second Trea­ tise, w h i c h s e e m s to m e substantially correct, is that the text con­ tains t w o m a i n lines of argument purporting to justify private p r o p e r t y t h r o u g h labor. The first line of argument simply applies Locke's divine will theory of morality (sketched above in chapter 1) to t h e issue of rights in the earth a n d its products. This is the a r g u m e n t from h u m a n n e e d s a n d God's intentions. The second line of a r g u m e n t i s m o r e purely conceptual in n a t u r e a n d proceeds from p r i o r rights that each possesses in person a n d labor to p r o p 56

Locke i s mistaken i n h i s v i e w s about nonconsensual division of positive c o m m u ­ nity or that Locke is thinking of a negative original community. But I think that Locke is correct in thinking that sometimes joint property is best thought of o n the model of "divisible positive community" (see 5.4). And it is worth remembering that e v e n in cases of legal joint property (concurrent estate, say), w h e n the owners disagree about u s e of the property, courts may institute a compulsory (i.e., non­ consensual) partition process. These points constitute the beginning of a response to claims that joint ownership of the world is inconsistent with the Lockean thesis of self-ownership (see, e.g., Cohen, "Self-Ownership," 113). 5 6

M a c p h e r s o n finds these two lines of argument in the text, characterizing them as a r g u m e n t s from (1) the right of self-preservation and (2) the right to one's body and labor (Possessive Individualism, 200-201). Chemo'3 and Plamenatz's readings are similar ("Locke o n Property," 51-52; Man and Society, li244-45), as is the more recent interpretation offered by Drury, w h o sees both arguments as proceeding from the "right to life" (divided into our rights over our life, limb, and actions and our rights to preserve our lives) ("Locke and Nozick," 32). There are, of course, hints of m a n y other arguments in chapter 5 (all of which I discuss in the text be­ low); but t h e s e t w o are the only ones that are plainly intended by Locke. Waldron finds five arguments (or hints of arguments} in Locke's text: arguments from (I) need, (2) efficiency, (3) the labor theory of value, (4) desert, and (5) mixing ("Two Worries about Mixing One's Labour," 37-39). (1) and (5) are the arguments o n which I concentrate here, while I find (2), (3), and (4) to be simply parts of (1) or (S). Becker finds t w o arguments for the significance of labor in Locke: from prior rights in self a n d labor (the mixing argument) and from "return for pains" (Property Rights, 3 3 - 3 6 , 41; "Labour Theory," 656). Mautner also finds two: from "fusion and accession" (mixing) a n d from "incorporation" ("Locke on Appropriation," 261-62). Snyder calls the argument from incorporation the "slippery slope" argument ("Locke o n Natural Law," 736). I treat both the fusion and the incorporation argu­ ments as parts of the mixing argument. Schwansenbach distinguishes three argu­ m e n t s i n Locke: the arguments from (1) taking (need, common right, incorpora­ tion), (2) making (workmanship model, desert, mixing), and (3) initiative (return for pains) ("Locke's T w o Conceptions," 1 5 0 - 5 1 , 1 5 4 - 5 5 ) . 242

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erty in the g o o d s altered b y labor. This is the inixing argument. It is easy e n o u g h to consider the second argument as simply part of the first. But it is not presented as such, by Locke. It is presented as having force entirely i n d e p e n d e n t of the first argument; and, indeed, it neither makes a natural conclusion to the first argument nor relies o n t h a t argument's premises. T h e mixing argument is both logically detachable from the first a r g u m e n t and the most prominent jtistificatory a r g u m e n t offered by Locke in chapter 5. These facts constitute Strong reasons for treating it as an indepen­ dent justification i n Locke's theory, a justification that is notable for its ability to b e incorporated into either a theological or a secu­ lar theory of natural property rights. Once again, it seems plausi­ ble to read Locke as embracing the "moral overdetermination" of parallel routes' t o t h e same conclusions. This should become clearer as w e examine m o r e closely the two lines of argument. 57

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l' ,

1. The A r g u m e n t fronk^Human N e e d s a n d God's Intentions We can, Locke argues, infer God's intentions for humarUcind with respect to property from several facts. God wills the preservation of mankind (this is the fundamental principle of natural law, itself a conclusion in Locke's "demonstration" of morality), and God has given the earth to mankind in common. From the original community of aU things, of course, there might, for all we know, be no way to rightfully acquire exclusive property (it has seemed "to some a very great difficulty'' [H, 25j). But w e know that God wills our preservation. A n d w e k n o w that w e m u s t be able to take things as our exclusive property "before they can b e of any use, or at all beneficial to a n y particular m a n . " So "there must of neces58

57

Or as simply a n aberration o n Locke's part. Those w h o treat the mixing argu­ ment as just a part of the first argument include Tully {Discourse, 133) and Snyder ("Locke o n Natural Law," 7 3 4 - 7 5 , 736-37). Schwarzenbach treats the waxing ar­ gument as part of the argument from making (a la Tully) ("Locke's Two Concep­ tions." 150-51). Waldron sees the mixing argument as "an independent line of argument," but finds the argument more of a "distraction" than a substantial con­ tribution to Locke's case (''Two Worries," 38-39). Plamenatz takes the mixing ar­ gument to be a simple non sequitur (Man and Society, 1:245). ™ O n its face, this d a i m s e e m s false. Why access or use rights would not serve just as well as exclusive property rights in allowing beneficial use of nature is not at all clear (see Waktron, Prrcwte Property, 168-71). Would Locke be willing to allow that where things can be berieficiaDy used in common (as he seems to think is true of air and water), that they must be left common? These problems suggest an ave­ nue for developing Locke's arguments (see 5.3 below): while beneficial use may not require private property, pursuit of our projects and purposive activities does require it. It is our right of self-government generally, not merely our right of self243

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sity be a m e a n s to appropriate t h e m " (II, 26), since w e n e e d the goods of t h e world to preserve ourselves. Consideration of h u m a n needs a n d God's intentions, then, seems to s h o w that there must be a w a y to make private what w a s c o m m o n . It is important to see that this is n o t yet a complete a r g u m e n t for property rights. The argument as stated s h o w s only that G o d wills that w e have private property, that property is necessary for our preservation. It follows from this that w e m u s t have a right (in­ deed, a duty) to make property in ways consistent with t h e pres­ ervation of mankind—that is, that each has a moral p o w e r (and liberty) to make property in u p to a fair share of the common, cor­ relating with the duties of others n o t to prevent exercise of the power (this is the inclusive "right to p r o p e r t y " to which each is b o m , a part of the "right of self-government," which includes the right of self-preservation). The argument from need t h u s yields a right to m a k e property (and, as w e will see in 6.3, a right to the surplus of t h e property of others, u n d e r certain conditions). But the a r g u m e n t still d o e s n ' t s h o w how w e can m a k e property, why any particular method yields rights (why laboring on a field gives rights to it, b u t pointing to the field a n d saying "this is m i n e " does not). While t h e ultimate justification of property t h u s lies in hu­ m a n n e e d s a n d God's will, there m u s t be a specific justification for labor's claim to g r o u n d property rights. W h y is labor t h e answer to Locke's puzzle a n d n o t something else? It is easy to see w h y some alternative m e t h o d s must fail, although Locke himself ex­ plains only t h e failure of consent or compact a s the ground of ex­ clusive property: if the consent of the other commoners w e r e the source of property, " m a n h a d starved, notwithstanding t h e plenty God h a d given h i m " (II, 28), such consent being impossible to ob­ tain. Since G o d wills that mankind not starve, " c o m m o n consent" is a n a n s w e r to Locke's puzzle (how to get the private from the common) that contradicts God's will (and hence cannot b e ade­ quate). But w h y is "labor" the answer that Locke accepts? 59

There a r e several reasons Locke might give that seem consistent with t h e overall line of argument. The most obvious is that we preservation, which requires natural property rights. See the related argument in O'Neill, "Nozick's Entitlements," 318. The best statements of this "argument from need" are in I, 86-87 and n, 2526, although it i s implied in many other passages. For discussions of various as­ pects of this argument, s e e Tully, Discourse, 3-4; Colman, Moral Philosophy, 190; Olivecrona, "Appropriation in the State of Nature," 221-22, and "Locke's Theory of Appropriation," 221-22; Waldron, "Enough and as Good," 324-26, "Locke, Tully," 100, and "Two Worries," 37. 5 9

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have been commanded t o labor, that this is the positive revealed will of God. " G o d , : w n e r i h e gave the world in common to all man­ kind, c o m m a n d e d m a n also to labour, a n d t h e p e n u r y of his con­ dition required it of h i m " (II, 32); " G o d commanded a n d [man's] wants forced him to labour" (II, 35). It may seem at first that God's command establishes only a duty to labor, not a right to t h e prod­ ucts of the labor (which is w h a t Locke is trying to justify). But if private property rights'are necessary for our preservation (as w e have seen Locke believies), a n d God wills our preservation, then the right to t h e p r o d u c t s is necessary to doing our duty a n d hence is also willed b y G o d . So the moral power to make property is i n part, at least, a m a n d a t o r y p o w e r (i.e., a power that w e have a duty to exercise). But there are t w o obvious problems with the a r g u m e n t as de­ veloped above. First, only s o m e of the products of our labor ("products" here being used to mean w h a t is labored on as well as what is a d d e d to it) are actually necessary to our preservation (or the preservation of o u r d e p e n d e n t s , the poor, etc.). Yet Locke dearly allows that o u r labor g r o u n d s property even in those goods thatare only for our convenience or comfort, not just in those nec­ essary for survival! W h y should labor give title to things that are not necessary to our preservation? (Even if we have a d u t y to labor and " s u b d u e the e a r t h " [II, 32] b e y o n d what our personal n e e d s require, w h y d o w e h a v e rights in those products of our labor that are beyond our needs?) Second, a n d more telling, is the following difficulty: w h y does labor establish property in the fruits of our la­ bor? True, w e have b o t h a d u t y to labor a n d a need for goods from the earth to preserve ourselves. But w h y should it be the particular goods w e have labored to p r o d u c e to which w e gain title (so they can be used b y .us for our preservation)? Why not some other goods, unrelated to o u r labor, b u t equally good for preserving u s (such as the goods p r o d u c e d by some other person)? The argu­ ment as specified t h u s far cannot explain the significance of labor in grounding rights to the particular products of one's labor. Even 60

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*° See D u n n , Politico/ Thought, 2 1 9 - 2 0 , 2 2 2 - 2 4 , 250-51; Tully, Discourse, 109-10; Ashcraft, Revolutionary Politics, 2 6 1 - 6 2 , and Locke's Two Treatises, 134-35; Wood, Capitalism, 58; Kendall, Majority-Rule, 7 0 - 7 2 . Obviously, this same conclusion can be reached independent of the above rev­ elation, since o n e can infer a duty to labor directly from the duty of self-preserva­ tion and the facts of the h u m a n condition. Ashcraft suggests that Locke wants to argue as well that since land is valueless without labor, w e can presume that God wouldn't have given it except with the intention that we labor o n it (as II, 34 might suggest) (Locke's Two Treatises, 134). 61

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allowing that God favors "the industrious a n d the rational" (BE, 34) a n d w a n t s t h e m to profit from their labor, t h e reason for Qod's wanting them to profit by ownership of the particular products of their labor remains obscure. P e r h a p s the idea is that those w h o labor deserve a reward for this, a n d the product of their labor is the best measure of what they deserve. So each deserves to have a right to the product of one's o w n labor (this right being t h e fitting return for the labor).* Locke d o e s say that o n e w h o " m e d d l e d " with w h a t a n o t h e r had labored o n plainly desired "the benefit of another's pains, which h e h a d n o right t o " (II, 34), suggesting, p e r h a p s , that w e have a right to w h a t we have taken pains over because w e deserve it. The laborer, after all, creates value by labor (as we will see), a n d it is c o m m o n to suggest that value-creating activities merit reward. A n d no other is harmed (i.e., deprived of w h a t might otherwise b e enjoyed) b y giving laborers the product of their labor, since the value t h e y create would not exist at all for others h a d t h e laborers not p r o d u c e d it. 62

3

There are, however, serious obstacles to completing Locke's jus­ tification of property with this argument from desert. In the first place, this argument is not only not obviously in Locke's text, it is entirely independent of the argument from h u m a n needs a n d God's intentions. T h e a r g u m e n t from desert is completely unrelated to concerns about the preservation of mankind or our need for the goods of the earth (and so, if it were indeed in the text, it might count as another argument equally useful within a purely secular theory of property). In the second place, the desert a r g u m e n t in fact fails to solve the problem w e introduced it to deal with. Even if the product of our labor were the best measure of the rights we deserve to acquire (which it is not), our desert claim could b e per­ fectly well satisfied by providing us with an equivalent m e a s u r e of w

There is, of course some controversy over whether Locke wanted to identify "the industrious and the rational" in h i s o w n time with all of the landowners (Macpherson), the gentry rather than the idle, wasteful large landowners (Ashcraft), or neither. I suggest below and in chapter 6 that Ashcraff s reading is the most plau­ sible. w

Miller calls this argument "the most obvious way of reconstructing Locke's argument [and] one for which there is some support in the text itself" ("Justice and Property," 6). Ryan also s e e m s to take this reading of Locke seriously (Property and Political Theory, 28, 33, 37, 44). Becker characterizes it as the best reformulation of the labor theory, but not the argument Locke intended to make (Property Rights, 47, 49). For fuller presentations of the desert argument, s e e Becker, Property Rights, 4 7 56, and "Labor Theory," 655-56; and Christman's critique in "Can Ownership Be Justified?" 1 6 6 - 6 7 . 246

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goods (and rights to them), rather than the particular products of our labor. Those w h o deserve a fitting return generally deserve not specific goods, b u t a particular kind or level of well-being. Finally, the desert a r g u m e n t "actually conflicts with many features of Locke's theory of property. Those w h o labor most (or hardest, or most thoughtfully, etc.) deserve the most return; but the products of one's labor seldom correspond to the best measure of one's de­ sert. H o w prodtictive^one's labor is frequently depends o n luck (on the w e a t h e r for farrning, the richness of the vein for mining, the abundance of fruits a n d game for gathering and hunting, etc.); what o n e deserves d e p e n d s (on this account) on effort. Locke's theory (of a right to t h e product) accepts fortune as a determinant of property in a w a y n o desert theorist could allow. Similarly, for Locke only the first laborer has a claim on what is improved b y his labor (provided h e continues to u s e it, etc.). But a desert theory will have a h a r d time not counting (as equally productive of rights) later labor o n What h a s been previously improved, since later labor seems just as deserving of reward. A n d Locke would b e able to accept neither a theory of property transfer based on desert (rather than his o w n theory, Which allows consent, inheritance, need, and forfeiture as bases fOr transfer) nor the very severe limits o n pos­ sible holdings t h a t a properly framed desert theory would im­ p o s e . All of these problems point to a more basic gap between rights a n d desert, a n d to more fundamental problems with desert theories of property r i g h t s . 1

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The best w a y to u n d e r s t a n d h o w Locke wished to complete the argument from h u m a n n e e d s a n d God's intentions, I believe, is to follow the interpretive strategy outlined above in 2.4: we can de­ rive the specific content of natural law (which includes the rights and duties of natural property) by rule-consequentialist reasoning from the fundamental law of nature. We can ask "by general con­ formity to w h a t noles'will m a n k i n d be best preserved?" a n d our answer will give u s the content of natural law for Locke. So if " See Miller, J u s t i c e and Property," 6 - 7 ; and Becker, Property Rights, 5 4 - 5 5 . See Waldron's surdlar rejection of the "desert interpretation" of Locke's argu­ ments (Private Property, 201~7). Regardless of how w e read Locke's theory of prop­ erty, a desert theory of property rights must be able to respond to at least these two fundamental concerns: (1) Isn't there a significant difference between deserv­ ing to have a right and actually having one? That there is a difference seems dearest precisely in the case of rights that involve practices (such as property or promising); (2) Aren't desert claims based o n what w e d o using assets in which we have prop­ erty (to which w e are "entitled"), making property a more fundamentaf notion than desert (and s o not capable of being explained or justified in terms of desert)? See Nozick, Anarchy, 2 2 4 - 2 6 . w

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Locke can s h o w that a system in which laborers receive title to the p r o d u c t s of their labor (within the limits mentioned below in 5.4) is t h e best system for preserving m a n k i n d , h e will h a v e justified w h a t n e e d s justifying. H e will have s h o w n w h y labor (rather than something else) grounds property, a n d w h y the particular prod­ ucts of our labor (rather than something else) are w h a t our labor g r o u n d s property in. N o w Locke famously argues that labor increases the stock of goods for all (e.g., H, 37, 41-42). It seems, then, that the system that most effectively encourages labor will b e likely to b e the o n e that most effectively preserves h u m a n k i n d (and hence does God's will). H e r e w e have the start of a rule-consequentialist argument to the conclusion that laborers should have title to the specific products of their labor. For one good way of encouraging (induc­ ing) labor is to reward the laborer with title to the product, thereby (indirectly) encouraging the laborer to do w h a t is best for all (as, for instance, H u m e , Paley, and Bentham later a r g u e d ) . A n d , of course, laborers w h o receive more for greater labors will be able to better preserve themselves and their d e p e n d e n t s . Rewarding la­ borers with title, then, will enable them to better perform their d u t i e s . But w h y reward laborers with the particular products of their labor, rather than with some proportionate good unrelated to their labor? The simplest answer is that there are no goods lying about to be distributed. It is our labor that makes the earth a n d its p r o d u c t s useful for our preservation; n a t u r e provides only things that are " r o u g h a n d unfitted to our u s e , " our labor transforming t h e m into useful goods. So the only goods available for rewarding laborers are those produced by the labor. A system of immediate transfers (e.g., w h e r e I earn title to the products of your labor, and vice versa) is obviously not only hopelessly impracticable, but ig­ nores factors like the emotional investment of laborers in the prod­ uct of their labor. Rule-consequentialist reasoning from the basic principle that humankind is to b e preserved, then, seems to lead naturally t o t h e conclusion that laborers have property in t h e par66

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See Reeve, Property, 116-22; and Gibbard, "Natural Property Rights," 238. No­ tice also that while Gauthier justifies our rights to use our bodies and powers, and our rights to the effects of our labor (or compensation for them) by appeal to his Lockean proviso, he founds rights of possession in the fact that exclusive rights provide more benefits for all (Morals by Agreement, 209-10, 211, 216-17). Parry, John Locke, 49; Ashcraft, Revolutionary Politics, 2 6 4 - 6 6 , 270, and Lock's Tuv Treatises, 135-36, 141-42. King, Life, 1:162. a

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ticular products! of their labor (I return to this argument in 5.3 be­ low). This reading of Locke gives a special point to all of the passages in chapter 5 of the Second Treatise that emphasize h o w important labor is to t h e weU-being of h u m a n k i n d (and h o w large a percent­ age of w h a t is valuable for t h e s u p p o r t of life is the result of labor) (especially II, 4 0 - 4 3 ; but also, e.g., II, 3 6 ) . O n this reading, the point of these, passages is to support Locke's rule-consequentialist reasoning b y s h o w i n g that whatever encourages labor encourages the best preservatiori of h u m a n k i n d (as a rule—in particular in­ stances, of course, rewarding labor with the product may not have this effect). That reading seems preferable to interpreting these passages as an independent effort to justify property in the prod­ ucts of labor. Nozick, for instance, considers the possibility "that laboring o n something improves it and makes it more valuable; and a n y o n e is entitled to o w n a ruing whose value h e has cre­ a t e d . " O n this line, .adding value will create property in the im­ proved thing arid 'over-baJance the community of l a n d " (H, 40). But there is n o very good reason to attribute such an argument to Locke. It is not, in the first place, even a complete argument; for when w e ask w h y adding value should give property, the natural answer is: w e h a v e a right to w h a t w e have created. This, how­ ever, merely asserts a "right of creation," which is itself the core of another style of argument purporting to justify property (see below). Second, Locke never comes even close to explicitly m e n ­ tioning or defending this argument, a n d m a n y of Locke's exam­ ples of labor establishing property (particularly, the examples of picking a n d gathering) seem very difficult to describe as instances of labor a d d i n g value to a t h i n g . Finally, the value-adding arguw

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The sections'I, 4 0 - 4 3 are what Olivecrona calls "the second part" (or "section 8") of the chapter, and h e suggests that they were probably added to the text after Locke completed the rest of the chapter ("Locke's Theory of Appropriation." 2 3 3 34). My reading of the sections as supplying support for Locke's argument {without being themselves a critical justificatory argument) would make sense of a decision on Locke's part to add m e m to a previously composed chapter. I will not discuss here Cohen's convincing arguments that Locke is mistaken in his claims that labor is responsible for virtually all of the use value of the world ("Marx and Locke," 3 7 4 - 78). w

Anarchy, 175.

7 1

Remember that Locke's daim is that the moment I pick u p the acorn, my labor has made it mine (II, 28). Is the "acom o n the ground" really interestingly less valuable lhan the "acom in my hand" that m y labor creates at the moment 1 grasp the acorn? See Olivecrona, "Locke's Theory of Appropriation," 226, 232; Waldron, Private Property, 193; Drury, "Locke and Nozick on Property," 32; and Mautner, "Locke o n Original Appropriation," 263. 249

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merit is n o t a very convincing argument, even if w e accept a right of creation. For laboring o n something may n o t add value to it (in­ deed, it may make it less valuable); a n d it is hard to see, in any event, w h y a d d i n g value to something should give the laborer title to the entire improved thing, rather than just to the value created by the labor. Only a rather uncharitable reading of Locke, then, w o u l d take h i m to be u s i n g t h e value-adding a r g u m e n t t o directly justify property in the products of labor (taking " p r o d u c t s " here, as elsewhere, to include the things labored upon). So w e should read the "labor-value passages" (i.e., chiefly II, 40-43) not to be advancing a n e w justification for property, but as supporting one step in the argument from h u m a n n e e d s a n d God's intentions. But these passages obviously have other impor­ tant roles in Locke's a r g u m e n t as well. The most important of these is their role in Locke's defense of enclosure of u n o w n e d (i.e., naturally common) land. Locke identifies laboring on the land (tilling, planting, improving, cultiyating^subduing, s o w m ^ _ £ l o u g h irig, a n d reaping are exampIesof_such labor used by Locke) with enclosing, it ("He by his.labour does, as it were, enclose it from the c o m m o n " [U, 32]); a n d he takes enclosure to be the m e a n s of ap­ propriating land ("he cannot appropriate, h e cannot enclose" [II, 32]). Locke makes it clear that enclosure is the best use of unowned land, for it transforms w h a t is " w a s t e " into w h a t is use­ ful and'productive. "Land that is left wholly to n a t u r e " is worth "little more than nothing'' (II, 42; "it would scarcely be w o r t h any­ thing" [II, 43]). Enclosure (private appropriation of land that is naturally common) is t h u s to be encouraged, since it " d o e s not lessen but increase the common stock of m a n k i n d " (II, 37) . Pri­ vate property in land (acquired by one " w h o appropriates land to himself by his labour" [II, 37]) is clearly regarded by Locke as a natural (and beneficial) feature of prepolitical life. O n the other 72

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Nozick, Anarchy, 175. Olivecrona, "Appropriation in the State of Nature," 226-27. * An apparent reversal of Locke's earlier view that "it is impossible for anyone to grow rich except at the expense of someone else" (ELN, 211). Tully's argument that Locke is opposing enclosure a n d defending the common (Discourse, 99, 1 2 2 25, 168-69) is, in the face of this textual evidence, impossible to sustain; and it has been convincingly criticised in, for example, Ashcraft, Revolutionary Politics, 2 7 1 72, and Lock's Two Treatises, 136; Shapiro, Evolution of Rights, 9 4 - 9 6 ; Wood, Capitalism, 57-58, 6 2 - 66, 8 2 - 83; McNally, "Locke, Levellers," 2 8 - 3 1 . Tally's claim that for Locke "fixed property in land does not have a natural foundation" (Discourse, 122) seems to be based largely on Locke's maintaining (a) that improved land that is n o longer used reverts to common (ibid., 123-24), and (b) that (a) is just one example of h o w Locke makes property "conditional u p o n its 7 3

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hand, Locke seems to oppose enclosure of land left common by compact (i.e., within political societies), both because of the obli­ gation to respect t h e compact, a n d because (as w e have seen) en­ closure w o u l d m a k e the other commoners in this case worse off than they w e r e before! the enclosure (II, 35) (the "common stock" is lessened, not increased by enclosure of land left common b y law). The "labor-value p a s s a g e s " are used not only in this defense of enclosure, b u t also a s s u p p o r t for Locke's related contention that dividing the original c o m m o n is fair to all a n d requires n o consent. Appropriation by labor is not "to the prejudice of others," w h o are, if anything, better, off as a result (II, 37). And none can com­ plain of h a r m or w r o n g d o i n g w h e n I take w h a t I create 99/100 of the value of (II, 40) (or 999/1000 [II, 431); since land in common is worthless a n d t h e value I take in appropriating would not exist b u t for m y labor, n o other is harmed by m y appropriation (I return to this argument in 5.4). So here w e have further s u p p o r t for Locke's view that,taking one's share of the "original community of all things" does not require the consent of the other c o m m o n e r s . 76

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use to perform our positive duties to God" (ibid., 124; see also 99). It is true, of course, that property in land is limited in various ways (see 5.4 below) and that property is forfeitable b y wrongdoing (failure to perform our duties). But all of our natural rights (not just property rights in land) are limited by the value of preserv­ ing mankind and forfeitable by wrongdoing. So if being limited and forfeitable is what deprives property in land of its "natural foundation," Tully might as well have claimed that natural rights d o not have a natural foundation for Locke, a claim that is transparently false. Rights that are merely (united and forfeitable are not thereby non-natural Or conditional (in Tolly's sense). Add to this the fact that Locke allows many innocent u s e s of land (and property generally) that are n o t specifically required by duty (e.g., uses for our "comfort" and "convenience"). It is important to distinguish here, as McNally argues, between w h a t is left common by law and w h a t is simply open to enclosure with "no legally enshrined common rights" at issue. It is only enclosure in the former case that Locke explicitly opposes. See "Locke, Levellers," 31. Olivecrona, "Locke's Theory of Appropriation," 232-33; Ashcraft, Locke's Two Treatises, 141-42. N o t e that even in the case of what is left common by law (within civil society), the second point still holds (by enclosure I create 99/100 of the value); but the first point (that none is made worse off by enclosure) apparently does not hold (Tl. 35). Locke is often, however, taken to be doing more still in the labor-value pas­ sages. Since labor creates value and increases "the common stock of mankind," and since enclosure makes all better off (II, 37), it would seem that none can complain even if nearly all of the available land has been enclosed (appropriated) by others (as Locke supposes will happen after the invention of money in populous regions or nations [II, 45]). Even those w h o have to work o n land owned by others (there being n o n e available for their o w n appropriation) seem to be compensated for this disadvantage by the benefits enclosure produces for all. Macpherson takes this to be Locke's w a y of s h o w i n g that the requirement of leaving "enough and as good 76

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We have been primarily concerned in this section with Locke's arguments for the claim that labor g r o u n d s property, exploring t h u s far various aspects of the a r g u m e n t from h u m a n n e e d s and God's intentions. But there are two other arguments frequently attributed to Locke that w e have not yet examined: the argument from the right of creation and the mixing argument. Both argu­ m e n t s have been seen as parts of the a r g u m e n t from h u m a n needs a n d God's intention; b u t it is important to see that both are concep­ tually independent of that argument. Neither o u r right over our cre­ ations nor o u r ability to mix our property in ourselves with nature h a s a n y special connection with considerations of w h a t w e need for our survival. Both arguments retain their o w n force w h e t h e r or not w e have a n y need for what we have created/mixed our labor with. I will t h u s treat both arguments as i n d e p e n d e n t justifica­ tions, discussing t h e m both separately a n d in their connection to o n e another.

2. T h e Mixing A r g u m e n t Where the argument from h u m a n n e e d s a n d God's intentions jus­ tifies property in our labor's products by appeal to the right (and duty) of preserving oneself (and others), the mixing a r g u m e n t ap­ peals to our right of self-direction (another aspect of our right of self-government). While it is possible to read the mixing argument as merely completing the argument from h u m a n n e e d s a n d God's intentions, this is not h o w Locke presents the mixing a r g u m e n t (in If, 27-28). It is presented as a free-standing justification for prop­ erty; a n d nothing in either argument requires the other for its com­ pletion. If anything, the mixing argument is given a m u c h more p r o m i n e n t a n d explicit presentation than the other, a n d t h u s looks 79

in c o m m o n for others" when w e appropriate (II, 27) has been overcome in contem­ porary societies, thus portraying capitalist accumulation as rational, productive, and favored-by God (Possessive Individualism, 211-13). My reasons for doubting that these are Locke's intentions I reserve for 5.4. Tully takes the mixing of labor not to justify anything, but only to be "a means of identifying something as naturally one's o w n " (Discourse, 131). This reading seems to me to make utterly superfluous Locke's quite elaborate (and purely con­ ceptual, nontheological) explanation in II, 27-28 of w h y labor makes property. N o n e of this is necessary to Locke's argument, o n Tully's reading, making Locke's central presentation of it appear foolish or deliberately deceptive. Another reading that similarly simply disregards Locke's elaborate efforts to explain "mixing our labor" is offered by Schwarzenbach ("Locke's T w o Conceptions," 151). Waldron sees that the mixing argument appears to be "meant to stand u p on its o w n " ('Two Worries," 38; Private Property, 139-40). 7 7

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to be taken b y Locke to be his central argument (as m a n y philos­ ophers writing after Locke, not to mention generations of Locke scholars, s u p p o s e d ^ Indeed, once all of the main justificatory ar­ gument of chapter 5 h a s been presented by Locke (and prior to his shifting to a discussion of m o n e y a n d civil property), h e summa­ rizes his case by direct reference to the mixing argument (with n o mention of t h e argument 'from h u m a n n e e d s a n d G o d ' s inten­ tions): " M a n (by being master of himself, a n d proprietor of his own person, a n d the actions or labor of it) had still in himself t h e great foundation of iproperty" (II, 44). Locke's use of the phrase "the great foundation of p r o p e r t y " should w a r n u s t o take seri­ ously the argument that explains it (the mixing argument), and to consider the possibility that h e intends the argument to indepen­ dently justify property, not merely to complete some much more basic a n d important line of a r g u m e n t (how m u c h more basic can one get than a "grea^foundation"?). 80

1

If this is n o t reason enough to take the mixing argument seri­ ously (as a n important part of Locke's project), mere are others. First, the mixing argument constitutes an indispensable step in the realization of Locke's, theoretical ambitions. It provides him with an answer t o Pufendorf's question of h o w a mere "corporal act" could limit the rights of others (as the creation of a property does). A n d it explains better than any of Locke's other arguments how permanent, alienable property in land is possible. It is h a r d to see h o w any other parts of Locke's argumentative apparatus could justify permanent property in land; but the rruxing argu81

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William Paley, for instance, takes the mixing argument to be "Mr. Locke's s o ­ lution" to the problem of property (Principles of Moral and Political Philosophy, book 3, part 1, chapter 4), This reading has become extremely unfashionable since the work of D u n n , Tully, Ashcraft, and others of the most recent generation of Locke scholars. " Pufendorf, De Jure Naturae et Gentium Libri Octo, 4.4.5. The answer is that labor is not a mere corporal act; it involves extending our prior property to include parts of nature, by mixing them together. It is not, then, the corporal act that limits the rights of others, but the extension of our o w n rights. See Seliger's discussion of Pufendorf's query in Libera/ Politics, 1 9 3 - 9 5 . This fact may explain Tally's belief that Locke is really only defending the com­ mon, given Tully's rejection of the mixing argument. Similarly, Schwarzenbach is forced to invent for Locke an "argument from initiative" (she grants "that this ar­ gument remains rather sketchy in Locke's thought" ["Locke's Two Conceptions," 154]) in order to justify fixed property in land, because she has already irustakenly subsumed the mixing argument (the obvious tool for the job) under the arguments from taking and making (ibid., 150-51). Further support for the view of Locke as defending fixed property i n land (in addition to that noted above) can be found in Mackie, "Review of TuEy," 9 2 - 9 3 ; Schwarzenbach, "Locke's Two Conceptions," 153-54; and Miller, "Justice and Property," 6. K

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merit a p p e a r s to easily explain this (since land on which we labor cannot b e taken without taking w h a t is indisputably ours—i.e., our labor). Finally, I explore throughout this work Locke's plural­ ism, p o m t i n g to his frequent use of quite different argumentative styles to reach the same conclusions. If there is any force at all to m y claims of Lockean pluralism, there is good reason to look care­ fully at t h e mixing argument as a n argument intended by Locke to provide a n alternate route to the same conclusion reached by the a r g u m e n t from h u m a n needs and God's intentions. Indeed, the first w o r d s of chapter 5 of the Second Treatise can b e viewed as an­ n o u n c i n g Locke's plan to argue along more than one route. V i e w e d i n this w a y , the mixing argument is especially interesting in being compatible with either a theological or a secular perspec­ tive o n p r o p e r t y . All aspects of the mixing argument are capable of being stated in purely secular, but still recognizably Lockean, terms: t h e starting point of original community is derivable by " n a t u r a l r e a s o n " (II, 25); our property in ourselves can be derived from o u r natural equality of jurisdiction (which can itself be de­ rived, o n Locke's view, by a purely conceptual, nontheological ar­ g u m e n t , as w e saw at the start of 2.7); the idea of "mixing" is straightforwardly secular; and the limits on appropriation are de­ rivable (as we will see in 5A) from considerations of natural fair­ n e s s . I d o n o t m e a n to argue here that Locke intends the mixing a r g u m e n t to be purely secular. But the dual conception of our p r o p e r t y in ourselves that Locke does intend (or so I argue below) clearly p o i n t s to the potential of the mixing argument for secular n a t u r a l rights theory. Let u s begin, then, with a more careful statement of the mixing a r g u m e n t as Locke presents it in chapter 5. II, 27 a n d 28 actually p r e s e n t t w o rather different arguments (the difference between t h e m n o t b e i n g mentioned by Locke), but both involve the idea of m a k i n g s o m e t h i n g external a part of one's protected personal (pri­ vate) s p h e r e . In H, 27, labor (which is private) is mixed with w h a t is external; in II, 28, w h a t is external is mixed with w h a t is private ( o n e ' s b o d y ) . In b o t h cases what was common is m a d e private by laboring o n it. In II, 27 Locke tells us that "every m a n has a property in his o w n p e r s o n , " a n d by extension in "the labour of his body a n d the work of h i s h a n d s . " W h e n a person "removes" a thing from its natural state, h e h a s " m i x e d his labour with and joined to it something t h a t is h i s o w n , a n d thereby makes it his property. . . . For this l a b o u r b e i n g the unquestionable property of the labourer, no m a n 254

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but h e can have a right to what that is once joined t o . " The idea, then, s e e m s t o b e that b y mixing w h a t is y o u i s (your labor) with what is available for;appropriation, you make any other's taking of that thing without y o u r consent unlawful; for by taking the im­ proved thing, that person also takes your labor "which another had n o title t o , n o r could without injury take from [you]" (D, 32). By laboring you extend your natural property in yourself (by mix­ ing, joining, or annexing it) to things external to y o u . Where H, 27 uses the ideas of fusion a n d accession, II, 28 relies in part o n s o m e idea of "incorporation."" In H, 28 Locke begins by claiming that " n o b o d y can d e n y " that acorns or apples that you picked in the woods are yours once you have eaten t h e m (they are now literally part of your body, which is private to y o u ) . But, moving backwards in time, it seems obvious that if they are yours once eaten, they w e r e yours while being prepared for eating; a n d if the latter is true, they were certainly yours while being carried home for preparation, a n d so on back to the actual picking. So it is plain " t h a t if, the first gathering m a d e them not his, nothing else could." There is a continuum between the gathering and the point at which nobody could deny a property, a n d there is no interme­ diate point o n .the continuum w h e r e it seems to make sense to deny that there;is property. 1 think that the second mixing argument (of II, 28) m u s t in fact be taken at least in part to rely on the first (of B*, 27). For while it may be true that physical incorporation of a thing (mixing w h a t is external with your body) serves as a n independent source of un­ deniable property (although only in a rather odd sense, since the new " p r o p e r t y " loses, its identity as it is incorporated), it is cer83

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For other summaries of this argument, see, for example, Olivecrona, "Appro­ priation in the State of Nature," 223-24, and "Locke's Theory of Appropriation," 225-26; Mautner, "Locke o n Original Appropriation," 261; Waldron, "Two Wor­ ries," 3 9 - 4 0 ; Becker, Property Rights, 33-34. ** Mautner, "Locke on Original Appropriation," 261-62. On Hume's account of "accession," both of Locke's arguments employ this idea, since for Hume things are acquired by accession "when they are connected in an intimate manner with objects that are already our property, and at the same time are inferior to them" (Treatise of Human Nature, 3.2.3). "The fruit or venison which nourishes the wild Indian . . . must be his . . . i.e., a part of him" (TL 26; m y emphasis). Wheeler essentially makes the two argu­ ments of H, 27 and 2B into one argument, by arguing that (a) you have rights over your body, (b) you have the same rights over what becomes part of your body, and (c) you have the same rights over anything that can be used (ike a body part (such as a house). So "your property is your body" ("Natural Property Rights," 273-82). The price Wheeler pays for this strategy is making nonsense of the idea of a "body." See Christman, ''Can Ownership Be Justified?" 170. K

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tainly not true that o n e could not intelligently deny property in the a c o m s or apples at some earlier point on the continuum. While the acorns m a y b e yours once you are eating them, I see nothing odd about denying that they are yours while you are cooking or carry­ ing t h e m . What makes the acorns yours at these earlier stages can only be that to take them would be to rob you of your labor (which you mixed with them). But now w e are back to the first mixing argument (involving mixing what is private with w h a t is external). While there are, of course, very real difficulties in understanding just h o w labor can be "mixed" with a n acorn (say), I w a n t to re­ serve comment on those matters until 5.3. There is another (prior) problem of interpretation w e face in analyzing the rnixing argu­ ment: h o w are w e to understand Locke's claim that each has prop­ erty "in his o w n p e r s o n " (labor, etc.)? There are a n u m b e r of quite distinct possibilities (of which I will discuss only two), b u t any reading of Locke's claim m u s t deal centrally with the fact that only twenty-one paragraphs earlier in the Second Treatise, Locke plainly states that all people are God's property (II, 6). It seems unlikely that Locke forgot about that statement, but it seems at first blush not a little confused to claim both that each of us is God's property and that w e all have property in our o w n p e r s o n . H o w w e resolve this apparent conflict for Locke will dictate m u c h of our under­ standing of the mixing argument. 86

O n e resolution involves appealing to the "workmanship m o d e l " of property. O n this model, all property—God's in us, ours in our­ selves, a n d ours in external goods—is explained b y reference to the "right of creation" or "maker's rights." We saw in 1.2 how God's "right of creation" seems to be taken for granted (or re­ garded as self-evident) by Locke as the final explanation of our obligation to obey God. The workmanship m o d e l draws a n anal­ ogy between God's creative power (and subsequent rights) and ours (we having been m a d e in God's image): as God created the world a n d m a d e property in it, so we create our o w n world 87

«* Day not only finds these two claims "incompatible" but also thinks that it makes no clear sense to say of a person that he "owns himself'' ("Locke on Prop­ erty," 215-19). Parry follows Day in this (John Locke, 5 0 - 5 1 ) . Mansfield (not very plausibly) suggests that Locke is deliberately laying a false trail and really means that people should regard themselves as their o w n property ("On the Political Character," 29^33). " As described by Tully, Discourse, 4, 8 - 9, 105, 108-10, 116-21. Others w h o see the "right of creation" at the center of Locke's theory of property (rights) include 5hapiro (Evolution of Rights, 96; "Resources," 4 9 - 5 1 ) , Ashcraft (Revolutionary Poli­ tics, 258-59), and Colman (Moral Philosophy, 186-90). 256

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through our laboring activities a n d in the process make property in our creations. We should act as m u c h as possible like God. Fur­ ther (and m o r e directly to the present point) both G o d a n d w e can claim "rights of creation" with respect to various aspects of our selves. God m a d e u s ; but w e make our own persons a n d actions (or labor). We are t h u s b o t h o u r o w n a n d God's, with n o incon­ sistency. O u r property in ourselves "is the right to use a n d pre­ serve w h a t is essentially God's property, similar to a tenant's property." Using our property in ourselves, w e transform the world w i t h our labor, making new things out of the material w i t h which God provided u s . This creative/transformative activity con­ sists of gathering (for natural products), catching, domesticating, or killing (for animals), a n d cultivating (for l a n d ) . Both the workmanship model and the interpretation of Locke's theory of property in terms of it face serious objections. As w e saw in 1.2, appealing, to the right of creation does not really explain the rights of creators at all nor is this right easy to justify within an exclusively theological moral theory. If all duties a n d rights derive from God's will, did God will the right of creation? A n d where did God get the authority; to do this, if His right to command derives from His right a s creator? If the "right of creation" is simply selfevident, o n t h e other hand, then morality does not all d e p e n d on God's will, a n d t h e theory of property that relies on the right of creation (as Locke's allegedly does) can be presented intact with no mention of G o d (if w e are really creators of our actions a n d makers of new things in the world). But we d o not, of course, create as God creates. Analogies between God's makings and ours are very extended, since the most interesting feature of God's makings are t h e acts of creation ex nihilo. We merely modify existing things (see below), w h e t h e r w e work o n ourselves, our actions, or exter­ nal things. Victor Frankenstein did not create life as God does (in­ deed, the point of Stielley's tale is precisely h o w wrong it is to believe oneself capable of a n d to aspire to God-like creation* ); nei­ ther do h u m a n parents or h u m a n gardeners. 66

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1

M

Tully, Discourse, 105, 1 0 8 - 9 . Similar readings are advanced by Colman (Moral Philosophy, 1 8 9 - 9 0 ) , Yolton (Locke, 69 - 70), Herzog (Without Foundations, 7 0 - 7 2 ) , and Waldron (Private Property, 178 - 80). " Tully, Discourse, 114. ' * Ibid., 116-21. " See also Reeve, Property, 126. "Frightful would be the effect of any human endeavour to mock the stupen­ dous mechanism of the Creator of the world" (Frankenstein ( N e w York: Bantam, 1981], xxv). n

257

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More important for our purposes here, however, are the prob­ lems involved in trying to portray Locke's theory of property as essentially an application of the workmanship model. Locke says nothing explicit (or even highly suggestive) in the Treatises, as far as I can see, which suggests that h e believes h u m a n beings create their persons or labor, or that w h e n they labor they gain property because they are creating " n e w things." He only says that they have property in their persons and labor (actions), a n d that they make property in other things b y labor. A n d even in the Essay, w h e r e Locke talks of " o w n i n g " actions as " o u r o w n " (i.e., " a p p r o ­ priating" t h e m or accepting responsibility for them, seeing them as our actions, rather than someone else's—as h e does primarily in E, 2.27), Locke's language is not explicitly "creationist." While these are the passsages always cited by those w h o advocate ex­ tending Locke's theological creationism to his theory of h u m a n property, there is really nothing in the passages that dictates this reading (which should make u s a bit reluctant to then extend that very constructive interpretation to cover the Treatises, w h e r e no such things are said). While it is easy enough to see h o w we might b e said to "create" our actions (although this involves an extended sense of "create"), Locke does n o t elaborate on it; and it is extremely difficult to see h o w w e could be said to create our persons. Do w e really labor (with "maker's knowledge") to produce our persons? As Locke s e e m s to describe things in the Treatises, it is o u r parents w h o are primarily responsible for guiding u s through the change from mere h u m a n beings to persons (i.e., " m e n " in Locke's moral sense of the word) (e.g., II, 6 3 - 64). He would probably say similar things about some teachers. Of the m a n y traits, capacities, or other properties that constitute one's person, some are innate, m a n y are unintentionally acquired or learned, and some are the product of thoughtful (intentional) "labor." This does not make us the creators of our persons (unless every change w e accomplish counts as a n e w creation), a n d Locke nowhere says that w e are. Efforts to s h o w that Locke really means that we create our persons (and not just that w e own them) invariably appear strained. 93

94

95

" Ryan, Property and Political Theory, 28-29; Waldron, Private Property, 198 -200. Notice that while Yolton claims in one place that we make our o w n persons (Locke, 69 - 70), he rightly notes in another that it is the task of education to "pro­ duce persons"; education is the source of developed reason, hence personhood (Yolton and Yolton, "Introduction," 1 5 , 1 8 - 1 9 , 25-26). In the one paragraph Tully devotes to "defending" this claim (Discourse, 109), nothing is said that establishes anything except that our persons are our property. 0 4

9 3

258

PROPERTY

RIGHTS

The problems are^if anytfiing, even more severe in trying to portray the "right oi'creation" as the heart of Locke's theory of property in external things. Again, Locke speaks not at all about creating or making n e w external things as the source of our p r o p ­ erty in the Treatises.' , Locke's examples of appropriation are almost all of h u n t i n g , gathering, a n d agriculture, with very few examples of handicraft or m a n u f a c t u r e . H u n t i n g and gathering neither cre­ ate nor transform the objects of labor. Agriculture n o m o r e in­ volves creation t h a n :does parental procreation. God creates chil­ dren a n d entrusts t h e m to their parents' care, but this trust is specifically distinguished b y Locke from property (indeed, this is a central t h e m e of the First Treatise). We do have alienable property in the crops w e grow; but not in the children w e grow. The reason for this is not that w e create the former, but not the latter, for w e have n o knowledge of the real essence of either to employ in cre­ ation. The reason, I will contend, is that the trusts w e exercise in the t w o cases are very different (the former involving significant discretion that the latter excludes). 16

97

98

H u m a n property m Locke, I think, is not essentially a matter of creation or making. Even w h e n w e design things, w e seldom cre­ ate them; even if y o u k n o w the real essence of the thing you de­ sign (a chair, say), ybii do not k n o w the real essence of the thing But that point is not i n question. It is our creation of our persons a s the source of our property in our persons that Tully is asserting; and none of his arguments or citations supports that. Similarly, Colin an can only show that Locke believes w e make our thoughts, not that w e make our persons or the consciousness that con­ stitutes them (Morat Philosophy, 189). ** Tully acknowledges that Locke d o e s not u s e the word "create" (creation being God's province), but says Locke "consistently and repeatedly" speaks of "rrtaking" {Discourse, 120). A s far as l e a n see, however, almost all of Locke's uses of "making'' in chapter 5 concern "making" use of a thing, "making" it one's o w n , or "making" a property in it. The Only thing w e are said to make by laboring (other than our rights over what w e labor on) is the "greatest part of the value of things" (II, 42; see also II, 40); and these remarks occur long after the central passages in which Locke is discussing the Justification of property. See Waldron's similar observations (Pri­ vate Property, 199-200). • ** A m o n g those w h o have s e e n this (and, for the most part, been led to question the creationist analysis of Locke) are Obvecrona ("Locke's Theory of Appropria­ tion," 225-26, 232), Mautner ("Locke on Original Appropriation," 263), Pressola ("Liberty and Property," 315-16), and Snyder ("Locke o n Natural Law," 737). Tully claims that these activities transform "earthly provisions" into "manmade objects of u s e " (Discourse, 117). But it is awfully hard to believe that Locke thought picking up an acorn to be sufficiently like God's acts of creation to generate rights under the same creationist principle. Making something useful is not like making the thing itself. I can make a tree useful to me (as shade) by moving under it; but I d o n o t thereby create a n e w thing (in any sense interesting e n o u g h for Locke to have thought of it as similar to God's creation). 9 6

259

CHAPTER

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you build (a xoooden chair, say). (If w e could design children, by manipulating s p e r m a n d ovum, would w e have a maker's rights over them?). H u m a n property is not so m u c h a matter of creation as a matter of extending the person (which is indisputably ours) into the world. By our labor w e alter the world a n d make it useful to us. But even w h e n this involves n o physical transformation (let alone creation) of a thing (as in picking u p acorns), it brings about a fundamental moral change in the thing u p o n which w e labor. For our property, w h a t is private to u s , is extended by our labor to include labor's object. Consider a n alternative, noncreatiortist account of h u m a n prop­ erty in Locke, one that also explains h o w God a n d I can both have property in myself. God, as our true creator, has original property in us a n d all that " g r o w s " from us (including our persons, labor, etc.). But God entrusts us (rational, corporeal beings) with exten­ sive control over ourselves and the uses of ourselves. We have property in our persons and labor, not as creators of them, b u t as trustholders with respect to them. We can, however, view our property in ourselves from two perspectives. First, with respect to God, our property in our persons a n d labor is not "unquestionably o u r s " except in the sense that we are the clear holders of a strong discretionary trust from G o d . " The trust (and its limit) is to care for ourselves in w a y s consistent with the best preservation of man­ kind. We have seen (in 1.4 and 2.1), however, that the rules for the best preservation of mankind include allowing each significant liberty to p u r s u e personal nondestructive goals (i.e., those which do not involve imperiling self or others). A n d caring for oneself involves taking seriously one's own plans a n d projects, since fail­ ing to do so will cause frustration, boredom, or other n o n p r o d u c ­ tive c o n d i t i o n s . The trust we enjoy from God, then, imposes 100

** Viewed in this way, our property is a form of "ownership in trust" or "stew­ ardship." On the importance of the "stewardship" model in Locke, see Ashcraft, Revolutionary Politics, 263n; Schwarzenbach, "Locke's T w o Conceptions," especially 145-46; Stell, "Dueling," 16; Ryan, Property and Political Theory, 29, 31-32, 45. Schwarzenbach describes Locke's view of our property in life, limb, and freedom as "gift property," which involves a "loose" obligation to abide by the will of the donor ("Locke's T w o Conceptions," 146-47). The obligations limiting property are sufficiendy strict, however, that the idea of a trust (rather than a gift) seems to make better s e n s e of Locke's intentions. The idea of trust is also, of course, o n e that Locke uses centrally in his theories of government and revolution, so it might rea­ sonably be called one of the central concepts at work in the Treatises. m

Tully's characterization of "Locke's 'property in' " as "the right to use and enjoy God's property for God's purposes" (Discourse, 122) is thus slightly mislead­ ing. We may use God's property for our o w n purposes, since d o i n g s o is consistent with God's purposes. 260

PROPERTY

RIGHTS

limits o n our freedom (it is not "license" (H, 6]), b u t also gives u s a "robust z o n e of indifference" within which w e may p u r s u e our own harmless goals (again see 1.4 a n d 2.1). As trustees w e enjoy a wide range, of discretion to use ourselves a n d our powers as w e please. Breach of this trust (exceeding its limits), however, entails loss of control over ourselves. Breach entails forfeiture of rights, justifying either paternalistic intervention (where harm is d o n e to oneself) or p u n i s h m e n t (where harm is d o n e to others) (although Locke mentions only t h e latter case). We can also, however, describe our property in ourselves with respect to other persons. From this perspective, w e are masters of ourselves (II, 44). O u r property includes a clear right to be free of the control of others;'no other can rightfully use our body, riund, or labor without our consent. Our freedom a n d "unquestion­ able" property in o u r p e r s o n a n d labor (II, 27) are often character­ ized negatively in this way b y Locke (as t h e right not to b e used b y others). M a n h a s "a right of freedom to his person, which n o other man has a p o w e r over, but the free disposal of it lies in him­ self" (II, 190). O n e ' s property in one's labor m e a n s " n o man b u t he can have a right to what that is once joined t o " (II, 27); it is something " a n o t h e r h a d no title to, nor could without injury take from h i m " (U, 32). The trustee has clear rights of noninterference held against others. Viewed m o r e positively, our property in our­ selves is the right to pursue our plans, to invest our actions a n d labors, to extend our sphere of rightful control (that which is pri­ vate) into the world, a n d to alienate our rights in the pursuit of innocent projects. . With respect to other persons, our property in ourselves is simply-obvious or "unquestionable." 101

102

103

i-17, 131, 134-35; neg­ ative vs. positive, 41-42, 49, 6 0 - 6 1 , 3 3 8 - 4 0 , 338n, 342-43, 345-52, 352n; and obligation, 95n; stringency of, 6 1 - 6 3 , 62n, 338-52. See also imper­ fect duty; obligation; perfect duty duty-based theory, 69, 69n, 79, 9 8 - 9 9 , 182n Dworkin, Gerald, 215n Dworkin, Ronald, 94n economic rights, 87-88. See also ser­ vants ectype, 20 egoism. See ethical egoism and Locke enclosure, 241n, 250-51, 250n, 265, 269n, 301, 305n. See also property, in land Engels, Friedrich, 223n English, Jane, 188n, 189n, 190n entitlement theory of justice, 102, 3 2 1 26, 322-23n, 323n. See also justice equality of rights, 59n, 73, 79 - 86, 84n, 130, 272-73, 196, 218-19, 237-38, 275-76, 2 7 9 - 8 0 , 288, 331-32. See also natural freedom

INDEX essence, 19-20, 20n, 23n, 24n, 45n, 259 - 60 "Ethica B," 35n ethical egoism and Locke, 37-39, 38n, 4 6 - 4 8 , 4 7 - 4 8 n , 48n, 58n Epstein, Richard, 267n;,352n

fundamental law of nature, 38, 4 6 - 5 0 , 47n, 48n, 60, 64, 78, 135-^36,161n, 210-11, 213-14, 230, 243, 247, 331, 336. See also God's will, principle of

!

Gauthier, David, 35, 45n, 68, 84n, 213n, 214n, 248n, 293n Gay, John, 57n general rights and duties, 12-13, 8590, 86n, 88n, 95n, 1 4 8 - 4 9 , 1 6 8 - 6 9 , 1 9 8 - 9 9 , 1 9 8 n , 207-8, 3 4 0 - 4 1 . See also special rights and duties Gerson, Jean, 96 Gewirth, Alan, 69n, 169n, 201n, 332n Gibbard, Allan, 241n, 248n, 278n, 292n Glenn, Gary, 62n, 195n God's authority. Sec right of creation God's power, 2 6 - 3 0 , 37n God's property. See property God's will, principle of, 23, 4 6 - 4 9 , 80. See also fundamental law of nature God's wisdom, 26, 2 9 - 3 0 Golding, Martin, 73n, I15n Goldman, Alan, 153-54n, 323n good: Locke's distributive conception of, 57, 57n; Locke's hedonistic theory of, 47n Gough, J. W., 18n, 57-58n Grant, Ruth, 19n, 24n, 25n, 43n, 56n, 181n, 2 0 4 - 5 n , 211n, 217n, 269n gratitude, 8 7 - 8 8 . 88n, 95n, 169n, 171n, 177, 179,187-92, 187n, 187-88n, 189n, 190n, 191n, 192n Green, T. H „ 109-10, HOn, 1 4 0 - 4 1 , 142n Grenville, Denis, 52n, 53, 8 5 - 8 6 n , 271n, 339n Grotius, Hugo, 9n, 16n, 33, 96, 123, 123-24n, 124n, 125n, 128,131, 132, 132n, I34n, 137,159n, 161n, 224n, 236, 236n, 238, 304 Gutmann, A m y , 112n

fairness, 6, 4 3 n / 1 2 3 n , 1 5 3 - 5 4 , 1 5 3 54n, 154n, 1 7 5 - 7 6 , 2 3 9 - 4 0 n , 254, 269n, 2 7 9 - 8 4 , 2 8 8 - 9 8 , 3 1 8 - 1 9 , 3 4 9 50n, 354. See also fainajiare fair share, 225^-26, 240J 241, 244, 263, 271-72, 276-37, 2 7 9 - 8 4 , 2 8 8 - 9 8 , 290n, 292n, 294n, 295n, 306, 318, 326-27, 3 3 6 , 3 5 4 . See also fairness; property, limits o n < Farrell, Daniel, il28n, 132n, 137n, 143n, 164n \li federative power, 129, \S9 Feinberg, Joel, 73n, 74, 75n, 81n, 83n, 92n, 93n, 96,'98n, 104n, 118n, 201n, 202n, 2 0 3 - 4 n ; 349n, 352n fidelity, duty of, 65, 65tt Fifth Commandment, 179, 217 filial duties, 95rt„168.177-92, 185n, 201,

217n,

353V'.:

filial rights, 87^ 182n, 192-204,197n, 201n, 202-^3n, 203n, 2 0 3 - 4 n , 225, 353 Filmer, Robert, 79, 79ni 85n, 130n, 167, 176, 177n, 178n, lS0;;197n, 202n, 204, 214, 216, 2 1 6 n , £ l 7 n , 223-24n, 233n, 236-37, 236n ; Finnis, John, 25n, 73n, 89n, 96n, 120n first-come-first-served, 7 4 - 7 5 n , 156, 183, 272 first try, right of, 1 7 8 , 1 8 1 - 8 4 , 1 8 4 85n, 192 Fishktn, James, 53n Fletcher, George, 158n forfeiture of rights, 51, 59n, 62n, 76n, 87, 88n, 122, 1 4 8 - 6 1 , 1 7 8 - 7 9 , 179n, 181, 1 8 3 - 84; 183n, 1 8 5 - 8 6 , 1 9 5 - % , 214-15, 218-19n, 225, 226n, 247, 251n, 261, 287, 310, 353; two ac­ counts of, 1 5 0 - 5 1 , 151n, 155, 1 6 0 61n :

forgiveness, 150-51, I5ln, 160 Frankfurt, Harry, 201n freedom, 7 7 - 7 8 n , 1 7 6 - 7 7 , 178n, 193, 202, 219, 2 6 0 - 6 1 , 271n, 274, 326-27. See also natural freedom French Declaration of Rights, 72, 72n Fressola, Anthony, 41n, 239n, 295n Fried, Charles, 65n, 94n full ownership, 2 2 9 - 3 0 , 230n, 233, 268, 275

Hare, R. M„ 52n Harrison, Ross, 1 1 6 - l 7 n Hart, H.L.A., 12, 27, 71n, 72n, 74n, 85, 85n, 87n, 93n, 97n, 98n, 117n, 121, 201n Haslett, D- W., 212n hedonism. Sec good Hegel, G.W.F., 105n, 109, 140, 153n, 161n, I71n, 206n, 273 Herman, Barbara, 350n Herzog, Don, I8n, 33n, 45n, 84n Hobbes, Thomas, 12, 2 8 - 2 9 n , 37, 39, 47n, 68, 70n, 71, 71n, 79n, 102,117n,

379

INDEX Hobbes, Thomas (cont.) 1 5 6 , 1 6 2 - 6 3 , 163n, 167, 167n, 224, 224n, 238, 239n, 339, 339n Hodson, John, 323n Hoekema, David, 141n, 142n Hohfeld, W. N . , 70, 7 0 - 7 1 n , 72n, 73n ffonderich, Ted, I23n nonor, right of, 177-81, 179n, 181n, 187-92 ttonore, A. M „ 226n, 229n Hooker, Richard, 16n, 30n, 41n, 4 0 - 4 2 , 43n, 44n, 81, 332 Home, Thomas, 334n luman nature, 2 3 - 2 4 , 46, 1 0 5 - 6, 1 1 0 13 uiman rights, 89, 89n mman worth, 84, 84n Hume, David, 65, 81, 9 0 , 1 0 4 , 224, 248, 255n, 267n, 269 - 70, 270n, 304, 304n lypctneticai demonstration, 21-23 lypothetical imperative, 3 9 - 4 0 , 40n hering, Rudolf von, U7n mmumty, 7 0 - 7 1 n , 275n mpartialism, 168 - 70, 169n, 169 - 70vi, 170n, 340, 353 tnperfect duty, 73n, 3 3 9 - 4 0 , 338n, 346-52, 349n. Sec also perfect duty mprescriptibility of rights, 7 0 - 7 1 n , 72n, 164n, 179, 179n, 227 nalienability, 153n, 232n. See also alien­ ation of rights nclusive property right. See property ncorporation, 242n, 254-55, 2 6 5 - 6 6 , 274n aheritance, right of, 88n, 151n, 170, 179, 193, 204-15, 208n, 209n, 211n, 225, 225n, 247, 277n, 278, 278n, 2 9 5 96, 312, 3 1 8 - 1 9 , 322, 353 rmate practical principles, 81 nnocence, 54 tidifference, 17n, 53, 53n, 54n, 56, 58, 76, 85n, I62n, 2 6 0 - 6 1 ntellectualism, 32-35, 33-34n, 34n, 35n, 39 nterest theory of rights. See benefit theory of rights ames II, 224n ecker, Nancy, 188n, 191n Dint ownership, 238, 238n, 241, 2 4 1 42n, 269n, 280 - 61, 308 Lirisdiction, 177-78, 212-15, 213n, 308, 311-14, 312n; definition of, 311-13 Ustice, 187, 279, 307, 316-17, 318-27, 318n, 319n, 320n, 322-23n, 323n, 380

336, 354; civil, 3I9n, 321; definition of, 320, 327, 328-29; natural, 321. See also entitlement theory of justice; pat­ terns of distribution Kant, Immanuel, 32, 37, 39 - 4 6 , 40n, 41n, 4 2 - 4 3 n , 4 3 - 4 4 n , 4 4 - 4 5 n , 45n, 58, 65n, 83, 83n, 8 3 - 8 4 n , 102n, 1 0 5 6 , 1 5 4 , 1 5 9 , 168 - 6 9 , 1 6 9 n , 171n, 176n, 185n, 198, 198n, 219n, 284, 325-26, 3 5 0 - 5 2 , 351n, 354 Kelly, Patrick, 299n, 300n, 302n, 303n Kendall, Wfflmoore, 58, 309 Kymlicka, Will, l l l n , 293n, 321n labor, 172n, 183, 183n, 206, 206n, 211, 223. 224-25, 225-26n, 226n, 234-35, 242-77, 279, 291, 299n, 315, 318, 329^31; definition of, 2 6 6 - 67n, 2 7 1 73; duty to, 244-46; mixing of, 234, 242-43, 242n, 252-56, 252n, 253n, 265-76, 268n, 2 6 8 - 6 9 n , 274n, 279, 279n, 298, 318, 354; product of, 2 4 5 50, 262n, 316. See also incorporation, property labor-value passages, 248 - 5 1 , 251n, 265, 265n land. See property Laski, Harold, IlOn Laslett, Peter, 134n law: definition of, 21-22, 32, 70n, 103, 131-32, 134-35; kinds of, 27-28, 27n; of opinion, 27-28, 27n. See also civil law; law of nature law of nature, 15-17, 5 0 - 5 1 , 103-4; as protective order, 77-79; basis of, 48; core of, 1 0 3 - 4 ; definition of, 15-16n, 103-4, 131-32, 134-35; how natural, 16n, 91 n, 104-5; our knowledge of, 22n, 55-56n; promulgation of, 22n, 193-96; sanctions of, 131-32, 134-35; whether descriptive or prescriptive, 16, I6n, 66 - 67. See also fundamental law of nature; law; Locke's moral theory; natural rights; reason, law of Lee, J. Roger, 131n legislative power, 129n Lemos, Ramon, 117n, 226n, 235n, 288n, 334n Lenz, John, 35n Levellers, 177n, 208n, 236n, 290, 305n, 334n liberalism, 341-43, 345 libertarianism, 5, 12, 43~44n, 49, 6 0 61, 6 9 - 7 0 n , 78 - 79, 9 9 - 1 0 1 , 102n,

INDEX 1 4 9 - 5 0 , 223n, 225, 263h, 318, 324n, 325-26, 329-30ri liberty right, 7 0 - 7 1 , 7 0 - 7 1 n , 71n, 7 4 75n, 12Sn, 154-55, 1 6 0 - 6 1 , 182-84, 182n, 225, 238, 244, 272; protected, 71, 71n, 76, 97, 238 ,; limits o n property. See property living, 2 9 3 - 9 4 , 293n, 298; 302^3, 314, 329 /..„: '.. Lockean theory of rights^ the, 4 - 6 , 14, 104, 120, 125,1(56, 192, 305, 327, 331, 353-54 "•;!, i Locke's moral theory: content of, 1 5 17, 4 2 - 4 3 , 5 9 - 6 7 , 315-16, 352; con­ sistency of, 1 8 - 1 9 , 19n; foundations of, 15, 4 2 - 4 3 , 5 6 - 5 8 , 1 3 1 - 3 2 ; super­ structure of, 15, 5 0 - 5 9 . See also law of nature . Lomasky, Loren, 83n, 1 8 4 - 8 5 n , 203n, 230n, 275n, 332n Louden, Robert, 1 0 4 - 5 n , I17n, 118n Lyons, David, 52ri, 56n, 72n, 97n, 146n

J\ '

t

;

Mabbort, /. D . , 212n, 225n, 227n MacDonald, Margaret, 194n Machan, Tibor, 94n, 105n Maclntyre, Alasdair, 109n, 110, 110n, 114-16,114n Mack, Eric, 60n, 238-39n, 328n Mackie, J. L., 253n, 30Sn M c d o s k e y , H. J., 9 2 n , 2 0 1 n McNally, David, 236n, 251n, 335n Macpherson, C. B„ 11, 16n, 22n, 48n, 57n, 61n, 84n, 138n, 176n, I77n. 226n. 228n, 229n, 233n, 242n, 246n, 251-52n, 262n, 276n, 279n, 289, 293, 293n, 301-2, 301n, 302n, 303n, 310, 313n, 335n majority rule, 174, 174n . maker*s rights. See right of creation man, moral idea of, 24-25, 24n, 31-83, 89n, 1 0 5 - 6 , 258, 337n. See also per­ son mandatory claim right. See d a i m right Mansfield, Jr., Harvey;-256n marriage contracts, 1 7 0 - 7 5 , 1 7 1 n , 1 7 1 72n, 175n, 206, 209-11 Marx, Karl, 12, 105n, 1 0 6 - 7 , 106n, 107n, 223n, 273 Masham, Damans, 286, 33S Mattem, Ruth, 19n M'autner, Thomas, 242n, 255n, 269n, 279n, 286n, 288n MeiJander, Gilbert, 167n Melden, A. I., 180n, 1 8 0 - 8 1 n , 201 n, 202-3n

Mendus, Susan, 73n Mill, J- S.. 52, 5 6 - 5 8 , 56n, 57n, 7 8 , 1 0 8 , 108n, 220, 220n, 337 MiUer, David, 246n, 319 Miller, Jr., Fred, 239-40n, 297n Millet, Richard, 79n minimalism, 341-45 mixing labor. See labor mode, 20 Molina, Luis de, 96 Molyneux, William, 329 monarchy, 217, 217n, 305n money, 281, 2B3, 287n, 289 - 90, 294, 297-306, 299n, 300n, 304-5n, 309, 318; definition of, 299 monopoly on force, 124, 124n, 126, 144, 148,154-55, 161-66, 164n "Morality," 43n, 65n, 224n, 318n, 320n moral rights, 7 0 - 7 1 n , 8 8 - 9 1 , 223 Morris, Herbert, 154n, 201n Murphy, Jeffrie, 57n, 137n, 141, 142n, I43n, 144-48, 154n, 201n Nagel, Thomas, 64n, 324n Narveson, Jan, 188n natural executive right, 71n, 87-88, 90, 120, 121-66. 225, 314, 353. See also punishment natural freedom, 79n, 8 5 - 8 7 , 85n, 167. See also equality of rights; freedom; right of self-government natural justice, See justice natural law. See law of nature natural right, 6 8 - 6 9 , 81, 8 9 - 9 6 , 1 0 3 - 4 , 170n, I82n, 185n, 225n, 2 6 9 - 7 0 , 354; definition of, 8 9 - 9 0 n , 90 - 9 1 , 90n, 91n, 223-24, Z23n; Locke's concept of, 91-92, 91n need, 88, 225, 225n, 233, 242n, 2 4 3 - 4 4 , 244n, 245, 247, 250, 263, 265, 273, 274n, 285, 291, 317, 323, 325, 327-34, 332n, 3 4 8 - 5 1 , 349-50n negative community, 237-41, 239-40n, 241n, 241~42n. 264n, 2 7 9 - 8 0 . See also common, original; positive commu­ nity negative duty. See duty Nelson, William, 118n Nielsen, Kai, 32n Nozick, Robert, 11, 4 3 - 4 4 n , 53n, 60n, 83n, 94n, 123, 125n, 139n, 142n, 150, 150n, 156 - 5 7 , 1 5 9 - 6 0 n , 164n, 212n, 235n, 247n, 249, 250n, 263n, 267n, 269n, 27Sn, 279, 288n, 292n, 293n, 294n, 296n, 3ZI-25, 32In, 322-23n, 323n, 324n

381

INDEX lakeshott, Michael, IlOn bedience, right of, 178. 1 8 5 - 8 7 , 185n, 186n, 2S7r», 192 bligation, 2 6 - 2 7 , 95n; and duty, 95n; sanction theory of, 2 6 - 2 8 , 28-29n. See also duty bligation to enter society, 6 6 - 6 7 , 66n, 67n, 114n Of Ethics in General," 19n Jlafson, Frederick, ISOn ilivecrona, Karl, 226n, 249n, 269n, 271n, 272n, 286n, 300n 'Neill, Onora, 199n, 244n, 3 5 l n ptional claim right. See claim right iginal appropriation, 224-25, 225n, 234^36, 283, 306, 309, 320-21 "iginal community. See c o m m o n , orig­ inal ^ d e t e r m i n a t i o n , 11-12, 59, 100-102, 200, 243, 254 line, Thomas, 335 iley, William, 56n, 248, 253n ingle, Thomas, 26n, 67n, 125n, 206n, 264n, 282n irental dubes, 168, 178n, 1 8 0 - 8 1 n , 182,182n, 185n, 1 9 0 - 9 2 . 197-204, 198 - 99n, 2 0 6 - 8 irental rights, 69, 7 3 - 7 4 , 86n, 87-88, SSn, 175-76, 177-92, 177n, 178n, 179n, 180-81n, 1 8 4 - 8 5 n , 187-88n, 215-17, 2 l 7 n , 353. See also first try, right of; honor, right of; obedience, right of; tuition, right of rry, Geraint, 58n, I34n, 220n, 221n, 256n, 329n, 330n, 332n, 334n, 335n rsons, Jr., J. E., 289n, 300n rticularizahon. See common, original seal, Blaise, 38 temalism, 102n, 178, 187, 215, 2 1 7 21, 218n, 218-19n, 261, 337, 337n, 353 t t e m s of distribution, 320, 322-23, 322-23n,323n triarchalism, 167, 215-17, 217n rfect duty, 338n, 3 4 6 - 5 2 , 349n. See imperfect duty rson, 2 9 - 3 0 , 82 - 84, 83n, 8 3 - 8 4 n , J9n, 111-14, 193, 195, 201-3, 2 5 7 - 6 0 , 158n, 2 5 8 - 5 9 n , 337n. See also man, moral idea of rsonal identity, 8 2 - 83, 202, 202-3n Ctit, Philip and Goodin, Robert, 169n ilosophy and practice, 7 - 9 , 335-36, J36n >er, Adrian, 53n 382

Plamenatz, John, 94n, IlOn, 242n, 243n, 267n, 277n, 286n, 332n Plato, 32n pluralism, 11, 4 5 - 4 6 , 59, 79, 79n, 101, 222, 254, 353-54 Polin, Raymond, 43n, 321n, 335n political philosophy, 12-13, 121, 3 5 3 54 political rights (power), 87-88, 88n, 90, 122-24, 214-15, 216-18, 217n positive community, 2 3 7 - 4 1 , 239 - 4 0 n , 241-42n, 2 8 0 - 81. See also common, original; negative community positive duty. See duty positive moral law, 16 positive rights, 91, 170n, 182n, 325-26, 329-30n, 3 3 6 - 5 2 Postema, Gerald, H I , I42n, 160n potentiality, 195, 2 0 2 - 3 , 202n power, 70n, 72, 72n, 85, 87, 225, 240, 244-45 prerogative, 217-18 primogeniture, 208n proof of God's existence, 22, 22n, 264 property: definition of, 212n, 222, 2 2 6 33, 226n, 2 3 9 - 4 0 , 239n; God's in man, 26, 3 0 - 3 2 , 35-36, 4 9 - 5 0 , 50n, 100-102, 2 5 6 - 6 4 ; inclusive, 72n, 80, 87, 225-26, 225-26n, 232, 237-38, 244; in land, 212n, 222, 226, 228, 228n, 229n, 230, 231, 234n, 235-36, 237n, 2 4 l n , 2 4 9 - 5 1 , 250-51n, 2 5 3 54, 253n, 2 6 8 - 6 9 n , 283, 300-301, 307-8, 3 1 0 - 1 1 , 311n, 312n, 313n, 333-34n; in self, 101-2, 228, 2 3 0 - 3 1 , 239, 239n, 2 4 2 - 4 3 , 242n, 2 5 3 - 5 4 , 2 5 6 - 6 4 , 256n, 263n, 2 6 6 - 6 7 n ; limits o n , 156n, 233n, 234, 2 3 9 - 4 0 , 263, 276 - 77, 276n, 2 7 8 - 9 8 , 298-300, 305n, 318, 336; surplus of, 211, 211n, 244, 245, 265, 287, 300, 327, 330^33, 332n, 336, 344. See also enclosure; la­ bor; right o( creation "Proposal for Reform of the Poor Laws," 328, 334-36 protected liberty. See liberty right Pufendorf, Samuel, 9, l 6 n , 28n, 73, 73n, 116n, 224n, 236-37, 236n, 253, 253n punishment: definition of, 143-44, 143n, 146 - 4 7 , 157, 157n, 320n; duty to inflict, 1 6 0 - 6 1 , 1 6 0 - 6 1 n . See also authority to punish; natural execu­ tive right Quinn, Warren, 151n, 152n

INDEX Rachels, James, 345n Railton, Peter, 168n, 1 6 9 - 7 0 n Rapaczynski, Andrzej, 9n, 19n, 83n, 226n, 232n, 239n, 271n, 273n, 287n, 302n Raphael, D . D . , 104n Rawls, John, 4 3 - 4 4 n . 53n, 59, 212, 263n, 3 2 5 - 2 6 Raz, Joseph, 68n, 79n reciprocation, rights and duties of. See gratitude recreation, 271-72, 274n Reeve, Andrew, 230n, 248n, 263n, 285u religious duties, 64, 64n reparation, right of, 51, 53, 132-53, 151, 157-58. 210, 214-15, 225, 266, 319, 320n, 322 Replogle, Ron, 45n, 304n rescue, duty of, 1 9 8 - 9 9 ; 199n, 342, 347-52, 349n, 352n. 354 respect, 42, 44~45n, 58, 83, 8 3 - 8 4 n , 97, 102n, 106,,118, 159, 179, 187, 202-3, 219-20, 336-38, 347, 350-52 retributivism, 122-23, 123n, 128, 128n, 152, 152n. See also desert Richards, David, 43n right, 7 0 - 7 1 , 70n; 9 2 - 94, 117-20. See also claim right^ correlation of rights and duties; immunity; liberty right; moral rights; natural right; power right-based theory, 68ni-69, 69n, 7 8 79,182n 'VJ| right of creation, 236n, 2 4 9 - 5 0 , 252, 2 5 6 - 6 0 , 256n, 268n; God's, 21, 26, 30^32, 3 4 - 0 6 , 35n, 36B, 65n, 6 9 - 7 0 n , 99; parental, 30, 3S-36, 1 8 0 - 8 1 , I83n, 257, 2 5 9 - 6 0 . See also workman­ ship model • i • li-f right of self-government, 8 5 - 8 7 , 1 3 8 39, 156, 161-63, 2S3n,' 191-97, 225, 244, 243-44n; 252, 261-63n, 265, 267n, 274-77,.277-78n'; 2 8 4 - 8 8 , 289, 292n, 298, 302, 306, 314, 317-18, 326-27, 331-32, 332n, 345, 354. See also equality of rights;,freedom; natu­ ral freedom right to destroy, 231-33, 232n, 233n Riley, Patrick, 43n, 83n Roemer, John, 238n Rorty, Richard, 109n, l i l n Ross, W. D . , 72n, llOn. 123n, 150n, 152, 154n Rothbard, Murray, 123,,132n, 1 5 0 - 5 1 , 180n Rousseau, J. J., 213n Ruddick, William, 199n

rule-consequentialism, 43n, 45, 48n, 5 0 - 5 8 , 50n, 51n, 52n, 8 0 , 1 0 0 - 1 0 1 , 128, 136-37,143n, 1 6 9 n , 1 8 4 , 1 8 4 85n, 202, 203n, 2 0 8 - 9 , 208n, 219-20, 247-50, 260, 264, 270, 270n, 284, 3 3 7 38, 350, 353-54. See also consequen­ tialism Ryan, Alan, 57n, 103n, 229n, 241n, 246n, 272n, 286n, 287n, 293n, 302n. 304n

1

Sabine, George, 45n, 79n sanction theory of obligation. See obli­ gation Sandel, Michael, 110-12 Sartorius, Rolf, 267n Sayward, Charles, 125n, 164n Scanlon, Thomas, 273n, 277n, 323n Scheffler, Samuel, 53n Schmidtz, David, 163n. 164n, 235n, 297n Schochet, Gordon, 177n, 215-16, 216n Schrag, Francis, 180n, IS4n, 2Ifin Schwarzenbach, Sibyl, 62n, 222-23n, 242n, 243n, 252n, 253n, 260n, 264n, 301n Scott-Craig, Thomas, 79n, 113n Selden, John, 239n self-defense, right of, 132-33, 132n, 136, 143, 158-59n self-government. See right of self-gov­ ernment self-ownership. See property self-preservation, duty of, 6 0 - 6 3 , 65, 75n, 102n, 198n, 218n, 25% See also suicide Seliger, M-, 57n, 172n, 253n, 268n, 279n, 2SSn, 300n, 3I7n, 334n servants, 86, 88, 170, 1 7 5 - 7 7 , 1 7 5 n , 176n, 177n, 217, 261-63n, 279n, 281, 294, 303. See also economic rights Shaftesbury, first Earl of, 175n Shapiro, Ian, l l n , 44n, 69-70n, 7 2 73n, 117n, 176n, 230n, 239n, 269n, 276n, 302n, 327n, 329-30n shares. See fair share Shelley, Mary, 198n, 257 Shoeman, Ferdinand, 118n, 181n, lS4n Sidgwick, Henry, 57n, 169n, 188,198n Sigmund, Paul, 30n, 43n Singh, Raghuveer, 34n Skinner, Quentin, 85n slavery, 62n, 176, 176n, 193-96, 213, 226, 263n, 332, 336n Slote, Michael, 187n, 189n, 190n Smart, J.J.C, 52n

363

INDEX Snyder, David, 242n, 243n Soles, Davis, 33-34n Sommers, Christina, 168n, 170, IS5n, 188n special rights and duties, 12-13, 8 5 88, 85n, 87n, 83n, 90, 95n, 1 4 8 - 4 9 , 169 - 70, 198 - 9 9 , 198n, 2 0 7 - 8 , 337, 340 - 4 1 , 346. See also genera] rights and duties Spencer, Herbert, 295n spoilage. See waste state of nature, 71n, 123-24, 125-26, 127-30, 133, 135, 139n, 143-44, 1 4 6 48, 156, 1 6 2 - 6 5 , 1 6 3 n , 176n, 224, 307, 308n, 311, 315-16; definition of/ 129n Steiner, Hillel, 91n, 94n, 223n, 2 3 8 39n, 295n Stell, Lance, 75n Strauss, Leo, 11, 16n, 37-38n, 55n, 57n, 61n, 6 8 - 7 0 , 71n, 232n, 204n, 224n, 305n, 310 Suarez, Francisco, 92n, 96, 96n substance, 20, 24 suicide, 6 1 - 6 3 , 62n, 101, 139, 218-19n, 232. See also self-preservation, duty of Sumner, L. W., 104n, 109n surplus. See property tacit consent. See consent Tarcov, Nathan, 13n, 14n, 57n, 64n, 70n, 78n, 167n, 319n, 328n, 335n taxation, 317, 333, 3 4 3 - 4 4 Taylor, Charles, 66n, 68n, 94n, 104, 110-14, l l l n , 114n T h o m s o n , ) . ] . , 159n, 233n, 290n, 292n, 324n toleration, 39n, 53, 221, 339, 3 4 3 - 4 4 transfers, 277-78n, 295-96, 319, 3 2 1 22, 323-24, 323n, 350. See also alien­ ation of rights translateability of rights and duties, 116-17 trust, 102, 129, 138, I53n, 161-62, 164, 184, 185n, 197-98, 200-201, 214-15, 217. 234, 236, 2 6 0 - 6 4 , 260n, 264n, 267n, 321, 333, 337 Tuck, Richard, 96, lOln, 116n, 124n, 134n, 332n tuition, right of, 177-84 Tully, James. 9, 11, 19n, 25n, 34n, 36n, 45n, 6 0 - 6 1 n , 66n, 68, 72n, 75n, 92n, 127n, 176n, 180n, 2 0 5 - 6, 209, 222n, 223n, 225n, 225-26n, 226n, 227n, 231, 232n, 234n, 236n, 238n, 239n, 384

241n, 243n, 250n, 2 5 0 - 5 1 n , 252n, 253n, 256n, 258-59n, 259n, 260n, 262-63n, 264n, 2 7 0 - 7 t n , 271n, 279n, 284n, 288n, 3 0 4 - 5 n , 309-10, 313, 313n, 316, 332n, 333-34n unconscionable contracts, 173, 173n, l?5n utilitarianism and Locke, 45n, 56 - 5 8 , 57n Vaughn, Karen, 265n, 299n, 316n, 334n "Vendifi'o," 300n veracity, duty of, 6 3 - 65, 65n vigilantism, 145, 147-48 Vin&iciae Contra Tyrannos, 97n virtue, Locke's theory of, 6, 11, 38n, 48n, 64, 64n, 319, 319n, 328, 328n Vlastos, Gregory, 82n, 84n, 159n voluntarism, 32-35, 34n, 42n, 45n; di­ lemma of, 32-36 Von Leyden, Wolfgang, 36n, 37n, 134n, 157n Waldron, Jeremy, 69n, 84n, 85n, 87n, 93n, 95n, 105n, 107n, 119n, 168n, 204n, 2 0 4 - 5 n , 206n, 208n, 209n, 211n, 222n, 229n, 242n, 243n, 247n, 252n, 259n, 263n, 267n, 268n, 277n, 278n, 282n, 289n, 290n, 291n, 294n, 299n, 302n, 303n, 310n, 311n, 313n, 314n, 330n, 334 n Walzer, Michael, l l l n , 112n, 119n war, 124n, 127, 320n warmaker, 62n, 193 - 96, 197n, 214-15, 218n Warrender, Howard, 117n Wasserman, David, 158-59n Wasserstrom, Richard, 81n, 89n, 92n waste, 64n, 263, 276, 2 8 2 - 8 3 , 2 8 5 - 88, 286n, 287n, 288, 297, 299-300, 300n, 305n, 306, 321, 336. See also property, limits o n Weil, Simone, 119n Wheeler, uT, Samuel, 239n, 255n White, Alan, 204n White, Morton, 16n, 18n, 57n Wicdair, Mark, 187n, 190n, 192n, 198n Wilkes, Kathleen, 201n, 202n will, 83, 63n, 200-203 will theory of rights. See choice theory of rights Williams, Bernard, 82n, 83n Windstrup, George, 50n, 61n Winfrey, John, 293n, 303n, 317n, 320n Wong, David, 170n

INDEX Wood, Allen, 153n, 157n, 161n, 273n Wood, Neal, 57n, 208*1, 222n, 223n, 2 6 2 - 63n, 335n Woozley, A. D . , 187n; 349n workmanship modelj242n, 2 5 6 - 6 0 .

See also right of creation Yolton, John, 17n, 19n, 55n, 83n, 234n, 258n Young, Robert, 115n, 119n

385

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