Zuckert , Natural Rights and the New Republicanism

1. Zuckert, Natural Rights and the New Republicanism Locke’s argument in “Two Treatises”

2. Locke’s “workmanship” argument • very anti-Grotian “God the artificer” argument, although significantly in Two Treatises he makes no effort to prove the existence of such a God. • “Men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business, they are his property, whose workmanship they are” (II 6). • Made by God, human beings belong to God— the paradigm case, it appears, of a labor theory of property. • Locke in Two Treatises rejects Grotius’s etiamsi as he had done in the Questions. • The transcendent natural law is known entirely through knowledge of God the Creator. • Locke thus not only holds the creating God to be indispensable, but he deduces the content of natural law from the relation of humanity to God as creature to Creator.

3. Workmanship argument (cont.) • His first inference from the Creator-creature relation is the natural freedom and equality of human beings, • that is, the natural condition as a state of nature. • If God has given no explicit sign of “appointment” or precedence to one over another of the creatures, then their “independence” would follow (II 4). • Human beings by nature are free and equal, in that they do not “depend upon the will of any other man,” but they nonetheless remain “within the bounds of the law of nature” (II 4). • The natural law prescriptions described in the early chapters of the Second Treatise essentially have the character of limits on an otherwise existing natural freedom. • Locke derives these limits from the workmanship argument as well. Human beings “are his property, whose workmanship they are, made to last during his, not one another’s pleasure.”

4. Workmanship argument (cont.) • If human beings belong to God, they cannot belong to one another, or even to themselves. • Since God is the true proprietor, no one else has the right to damage or destroy his property. • From this thought Locke derives a general “no-harm” principle. • They may not “take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another” (II 6). • From this general limit, Locke infers limits on what human beings may appropriate from “that which God gave to mankind in common. . . . The same law of nature, that does . . . give us property, does also bound that property too” (II 25, 31). • Likewise, “a man [has] not . . . power over his own life,” presumably for the same reason, that God owns us all.

5. Workmanship to rights • Contrary to Grotius, then, Locke unqualifiedly affirms inalienability. No one can “by compact, or his own consent, enslave himself to anyone nor put himself under the absolute, arbitrary power of another to take away his life, when he pleases.” • Or, as Locke summarily puts it, “he that cannot take away his own life cannot give another power over it” (II 23). Thus from the workmanship argument via the “no-harm” principles apparently follows many of the most characteristic strands of Lockean liberalism, particularly his rejection of absolutism and his reservation of a natural right of resistance. • Even the central doctrine of natural rights would seem to follow. The natural law limitations that follow from God’s proprietorship set out the natural duties that primordially govern human life. Natural rights would seem to be the duties of others as they appear to the individual toward whom the duties are owed. For example, if all others have a duty not to take my life, I can be said to have a right to life vis-à-vis them. To have a right, then, is merely to be the beneficiary of the duties of others. Rights, according to this view, are clearly not primary but derivative. • Zuckert at 218

6. God as owner and the no-harm principle • The tie that binds the first and second treatises together, then, appears to be the notion of God as maker, or, more important, as owner. • The most important of those implications can be stated succinctly in terms of one proposition— human beings are by nature free and equal— and three limitations imposed on humanity: • (1) human beings are not morally free to harm one another; • (2) human beings are not morally free to harm themselves, that is, they may not commit suicide; • (3) human beings are not morally free to harm each other indirectly by appropriating more than their share of the external world. At times Locke summarizes these three limitations under natural law in terms of an obligation to “preserve mankind” (II 6).

7. Locke v. Catholic natural lawyers • Locke – individuals in SON have power to punish breaches of natural law • Thomas – no, they don’t; only community has that • Locke: there is no “community” in SON • Thomas: No; in fact, there is no “SON” – political communities are natural. There is no natural state without them!

8. Locke & political as artifact • The political is artificial – it has no “nature” • Same thing with Rawls, Nozick many other moderns • Political looked at purely in terms of what rational persons would contruct. • Game theory etc. etc. • Locke represents shift at very root from how Thomists looked at politics • Locke: source of political power is individual • Thomists, Hooker: source of power is the community, corporation, collective

9. Thomas et al. v. Locke • Political community is natural • Nature provides directly for political authority • Natural law ‘promulgated’ by natural inclinations to society • Politics ultimately founded on these inclinations; nature • Political community is artificial • It is constituted by rational agreement • Natural law not promulgated except may be figured out by reason • Following natural inclinations would lead to chaos & violence • Politics rests ultimately on coercion, violence