John Locke Second Treatise of Government

1. John LockeSecond Treatise of Government “Where-ever law ends, tyranny begins” (Humanities 4)

2. John Locke • 1632-1704 • ‘Republican’ thought • Social Contract • Reason & experience as foundation of truth • Two Treatises of Government, An Essay Concerning Understanding, Letters Concerning Toleration • Second Treatise anonymously published in 1689 • Son of Puritans, father fought in English Civil War • Medical degree from Oxford • Personal physician of Earl of Shaftsbury • Became involved with Whig politics • Suspected in Rye House Plot to assassinate James II & his brother (& heir), fled to Netherlands in 1683, returned after Glorious Revolution in 1688

3. The State of Nature • Why a state of nature? • Individuals • Pre-social • A state of liberty • To determine their own actions and use their bodies and belongings • A state of equality • No subordination or subjugation (§ 4-5)

4. The State of Nature • Not a state of license! • “though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind” • Each individual, being a creation of God, is obligated not to waste His creation: everyone is bound to preserve himself and insofar as is possible, other humans • Each individual has the power to execute that law via self-defense or punishment • Only with appropriate severity • ‘Restraint’ to deter future crimes (can be done by anyone) • ‘Reparation’ to repair damages (can be done only by the victim) (§ 6-12)

5. The State of Nature • But aren’t people bad judges in their own cases? • That’s why we need civil government (§ 13) • When was anyone even in this state of nature? • All princes and rulers of independent governments throughout the world are in the state of nature right now • Everyone else is until they freely consent to become member of a political (civil) society (§ 14-15)

6. The State of War • Incurred whenever premeditated threats are made against an individual’s life • Not the state of nature • Anyone who tries to get another person into their absolute power is trying to get power over, and thus against, that individual’s life • Thus, a robber can be killed or at least injured: if he did decide to kill a person, how would that person get reparations? • “To avoid this state of war (wherein there is no appeal but to heaven, and wherein every the least difference is apt to end, where there is no authority to decide between the contenders) is one great reason of men's putting themselves into society” (§ 16-21)

7. The Appeal to Heaven • “[W]ho having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven.” (§ 20) • “[W]ho shall be judge? It cannot be meant, who shall decide the controversy; every one knows what Jephtha here tells us, that the Lord the Judge shall judge. Where there is no judge on earth, the appeal lies to God in heaven. That question then cannot mean, who shall judge, whether another hath put himself in a state of war with me, and whether I may, as Jephtha did, appeal to heaven in it? of that I myself can only be judge in my own conscience, as I will answer it, at the great day, to the supreme judge of all me.” (§ 21)

8. The Appeal to Heaven • “And where the body of the people, or any single man, is deprived of their right, or is under the exercise of a power without right, and have no appeal on earth, then they have a liberty to appeal to heaven, whenever they judge the cause of sufficient moment. • And therefore, though the people cannot be judge, so as to have, by the constitution of that society, any superior power, to determine and give effective sentence in the case; yet they have, by a law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, viz. to judge, whether they have just cause to make their appeal to heaven.” (§ 168)

9. Of Slavery • “A liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature.” • But the individual’s life belongs to God, and by the same logic that prohibits suicide, and individual cannot sell himself into slavery • Temporary servitude, but not slavery • Slaves only rightful when captives are taken by lawful conquerors • The life belongs to the lawful conqueror (§ 22-24)

10. Property • Nature is abundant, there is enough for everyone • Vs. Hobbes • God gave nature to humanity in common • Nature + Labor = Property • Picking an apple makes it yours, fencing land makes it yours, gathering wood makes it yours, etc. • “America” & expropriating the natives • Property predates government, it is natural (§ 25-31)

11. Property • The same law of nature that gives us property, bounds that property • God gave nature to humanity to enjoy, not to spoil or destroy • In nature, each individual hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men” (§ 87) • Thus, while individuals can dispose of their property as they see fit, the individual has a right only to so much property as he or she can use before it spoils (§ 31-36) • Land-as-property does not mean an injury to the common good, as cultivated land is far more productive than uncultivated land (§ 41)

12. Property • Everything changes with the invention of money • “This is certain, that in the beginning, before the desire of having more than man needed had altered the intrinsic value of things, which depends only on their usefulness to the life of man; or had agreed, that a little piece of yellow metal, which would keep without wasting or decay, should be worth a great piece of flesh, or a whole heap of corn” (§ 37) • Money attains value by consent • “And thus came in the use of money, some lasting thing that men might keep without spoiling, and that by mutual consent men would take in exchange for the truly useful, but perishable supports of life.” (§ 47)

13. Property • “But since gold and silver, being little useful to the life of man in proportion to food, raiment, and carriage, has its value only from the consent of men, whereof labour yet makes, in great part, the measure, it is plain, that men have agreed to a disproportionate and unequal possession of the earth, they having, by a tacit and voluntary consent, found out, a way how a man may fairly possess more land than he himself can use the product of, by receiving in exchange for the overplus gold and silver, which may be hoarded up without injury to any one; these metals not spoiling or decaying in the hands of the possessor.” (§ 50)

14. Paternal Power • Absolute monarchs want to claim that their power is natural, that they are like the fathers of their people • But monarchical power is not like paternal power: there are two parents, not one • More: paternal power exists to guide children into the maturity of their reason, and is thus self-abolishing. Children become equals upon attaining mature reason • Absolute monarchs do not have this educative function, and want to treat subject like children for their whole lives (§ 52-59)

15. Paternal Power • “[T]he end of law is not to abolish or restrain, but to preserve and enlarge freedom: for in all the states of created beings capable of laws, where there is no law, there is no freedom: for liberty is, to be free from restraint and violence from others; which cannot be, where there is no law: • but freedom is not, as we are told, a liberty for every man to do what he lists: (for who could be free, when every other man's humour might domineer over him?) but a liberty to dispose, and order as he lists, his person, actions, possessions, and his whole property, within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.” (§ 32)

16. Political Power • “POLITICAL POWER, then, I take to be a RIGHT of making laws with penalties of death, and consequently all less penalties, for the regulating and preserving of property, and of employing the force of the community, in the execution of such laws, and in the defence of the commonwealth from foreign injury; and all this only for the public good.” (§ 3) • The liberal definitions of power & politics

17. Political (Civil) Society • Political society exists • To preserve freedom & property • Only where individuals have compacted to give up their right to enforce natural law • Instead, civil laws are created and enforced by the community (§ 87) • Absolute monarchies are not political societies! • Absolutist kings claim the right to legislate & enforce the laws, yet remain exempt from them • They thus remain in the state of nature vis-à-vis their subjects (§ 90) • In the state of nature, what is the appropriate response when someone tries to put you under his absolute power? • “No man in civil society can be exempted from the laws of it.” (§ 94)

18. Political (Civil) Society • “Betwixt subject and subject, they will grant, there must be measures, laws and judges, for their mutual peace and security: but as for the ruler, he ought to be absolute, and is above all such circumstances; because he has power to do more hurt and wrong, it is right when he does it. To ask how you may be guarded from harm, or injury, on that side where the strongest hand is to do it, is presently the voice of faction and rebellion: • as if when men quitting the state of nature entered into society, they agreed that all of them but one, should be under the restraint of laws, but that he should still retain all the liberty of the state of nature, increased with power, and made licentious by impunity. This is to think, that men are so foolish, that they take care to avoid what mischiefs may be done them by pole-cats, or foxes; but are content, nay, think it safety, to be devoured by lions.” (§ 93) • Vs. Hobbes

19. Of the Beginning of Political Societies • “The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. • This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.” (§ 95)

20. Of the Beginning of Political Societies • “[A]s far as we have any light from history, we have reason to conclude, that all peaceful beginnings of government have been laid in the consent of the people. I say peaceful, because I shall have occasion in another place to speak of conquest, which some esteem a way of beginning of governments.” (§ 112) • But you can’t just go around starting new governments! You’re a subject of whatever government you’re born under! • “If a subject of England have a child, by an English woman in France, whose subject is he? Not the king of England's; for he must have leave to be admitted to the privileges of it: nor the king of France's; for how then has his father a liberty to bring him away, and breed him as he pleases? and who ever was judged as a traytor or deserter, if he left, or warred against a country, for being barely born in it of parents that were aliens there? It is plain then, by the practice of governments themselves, as well as by the law of right reason, that a child is born a subject of no country or government.” (§ 118)

21. Of the Beginning of Political Societies • What counts as consent? • Express consent is easy, but “The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds, i.e. how far any one shall be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it.” (§ 119)

22. Of the Ends of Political Society & Government • The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property. To which in the state of nature there are many things wanting. • First, There wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them. • Secondly, In the state of nature there wants a known and indifferent judge, with authority to determine all differences according to the established law. • Thirdly, In the state of nature there often wants power to back and support the sentence when right, and to give it due execution, They who by any injustice offended, will seldom fail, where they are able, by force to make good their injustice; such resistance many times makes the punishment dangerous, and frequently destructive, to those who attempt it. (§ 124-126) • Gov’t must thus render people better off than they are in the state of nature

23. On the Extent of the Legislative Power • “[T]he first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it.” • 1. It may not govern with arbitrary power, and must itself be subject to law • 2. It must not rule by decree, but dispense justice through known, standing laws and publicly authorized judges • Without this, it’s power is absolute • 3. It may not take the property of individuals without their consent (no taxation w/o representation) • 4. It can’t transfer the legislative power into other hands (§ 134-142)

24. Legislative, Executive, & Federative Power • In order to prevent the seizure of power by an individual, the legislative power should reside in a collective body • Because the laws may be made in a relatively short period of time, this power need not remain always in session • But the laws constantly require execution, so the executive power must be separated from the legislative • War and peace, and foreign relations, form federal power • This is distinct from executive power, but it usually resides in the same body as executive power, to avoid confusion & divided loyalty (§ 143-148)

25. The Subordination of Powers • The legislative power is the repository for the power of the community, which always remains supreme • Legislative delegations should be distributed proportionately to a region’s population • Thus, the legislature must remain the supreme power, and the executive must be accountable to it • If the executive should hinder the meeting or acting of the legislature, he is in a state of war with the people (§ 149-158)

26. Prerogative • Because it is impossible for the law to foresee all circumstances, the executive must have prerogative to enforce, or even suspend, the laws as circumstances require • Example: pardons • But this must be done only for the good of the people • If it’s not, the appeal to heaven • “Nor let any one think, this lays a perpetual foundation for disorder; for this operates not, till the inconveniency is so great, that the majority feel it, and are weary of it, and find a necessity to have it amended. But this the executive power, or wise princes, never need come in the danger of: and it is the thing, of all others, they have most need to avoid, as of all others the most perilous.” (§ 159-168)

27. Tyranny • “Tyranny is the exercise of power beyond right, which no body can have a right to. And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage.” (§ 199) • “Wherever law ends, tyranny begins.” (§ 202)

28. The Right of Resistance • “[F]orce is to be opposed to nothing, but to unjust and unlawful force; whoever makes any opposition in any other case, draws on himself a just condemnation both from God and man; and so no such danger or confusion will follow”, because • If the body of the prince is considered sacred, he will be unharmed • Power without law lacks authority, so no resistance to authority takes place. The king’s lawful authority is unthreatened • Anyone who can will appeal to the law. They will only resist if this is no use. • Resistance from only a few will be no trouble, there will be mass unrest only if many people have suffered abuse, or fear they will (§ 204-210)

29. On the Dissolution of Government • “HE that will with any clearness speak of the dissolution of government, ought in the first place to distinguish between the dissolution of the society and the dissolution of the government.” • When society is dissolved, almost always via conquest “the union belonging to that body which consisted therein, must necessarily cease, and so every one return to the state he was in before, with a liberty to shift for himself, and provide for his own safety, as he thinks fit, in some other society. Whenever the society is dissolved, it is certain the government of that society cannot remain.” (§ 211) • The group party to the social compact

30. On the Dissolution of Government • Besides this over-turning from without, governments are dissolved from within. • When the basic character or power of the legislative is altered • Governing by arbitrary will • Hindered from acting or meeting • Forms of election arbitrarily altered • Delivery of the people to a foreign power • “Why, in such a constitution as this, the dissolution of the government in these cases is to be imputed to the prince.” • Or when the executive abandons his post, reducing the commonwealth to anarchy • Or when the legislative acts against the trust reposed in them, & invade the property of the people

31. On the Dissolution of Government • “[W]henever the legislators endeavour to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. • Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; • by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society.” (§ 222)

32. On the Dissolution of Government • But this is a recipe for chaos! • “Quite the contrary. People are not so easily got out of their old forms, as some are apt to suggest. They are hardly to be prevailed with to amend the acknowledged faults in the frame they have been accustomed to. And if there be any original defects, or adventitious ones introduced by time, or corruption; it is not an easy thing to get them changed, even when all the world sees there is an opportunity for it.” (§ 223) • In fact, if governments are set up on such principles, there will be fewer rebellions against gov’t than ever (§ 226)

33. On the Dissolution of Government • “Whosoever uses force without right, as every one does in society, who does it without law, puts himself into a state of war with those against whom he so uses it; and in that state all former ties are cancelled, all other rights cease, and every one has a right to defend himself, and to resist the aggressor.” (§ 232)

34. On the Dissolution of Government • "Here, it is like, the common question will be made, Who shall be judge, whether the prince or legislative act contrary to their trust? This, perhaps, ill-affected and factious men may spread amongst the people, when the prince only makes use of his due prerogative." • The people: "who shall be judge whether his trustee or deputy acts well, and according to the trust reposed in him, but he who deputes him"? • “This question, (Who shall be judge?) cannot mean, that there is no judge at all: for where there is no judicature on earth, to decide controversies amongst men, God in heaven is judge. He alone, it is true, is judge of the right. But every man is judge for himself, as in all other cases, so in this, whether another hath put himself into a state of war with him, and whether he should appeal to the Supreme Judge, as Jeptha did.” (§ 240-41)