locke i

His Doctrine of Natural Law

§1. Introductory Remarks

1. The early 20th-century philosopher R. G. Collingwood said: “The history of political theory is not the history of different answers to one and the same question, but the history of a problem more or less constantly changing, whose solution was changing with it.”1 This interesting remark seems to exaggerate a bit, since there are certain basic questions that we keep asking, such as:

What is the nature of a legitimate political regime?

What are the grounds and limits of political obligation?

What is the basis of rights, if any? and the like.

But these questions, when they come up in different historical contexts, can be taken in different ways and have been seen by different writers from different points of view, given their political and social worlds and their circumstances and problems as they saw them. To understand their works, then, we must identify those points of view and how they shape the way the writer’s questions are interpreted and discussed.

Construed this way, Collingwood’s remark helps us to look for the answers different writers give to their (not our) questions. To this end we must try to think ourselves into each writer’s scheme of thought, so far as we can, and try to understand their problem and their solution from their point of view and not from ours. When we do this, it often happens that their answers to their questions strike us as much better than we might otherwise have supposed. Indeed, I think that, given their way of thought and the problems of their day, the writers we discuss—Hobbes, Locke, Rous-

1. R. G. Collingwood, An Autobiography (Oxford: Clarendon Press, 1939), p. 62.

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seau, Hume, Mill, and Marx—give very good, though not perhaps perfect, answers to the questions that concern them. This is why we still read their texts and find what they say instructive.

2. The criticisms I shall make do not consist in pointing out fallacies and inconsistencies in, say, Locke’s or Mill’s thought, but rather in examining a few basic respects in which we, from our own point of view and concerned with our own questions or problems, do not find their answers or solutions altogether acceptable, as instructive as they are. Therefore, when we discuss these writers our first effort is to understand what they say, and to interpret them in the best way their point of view seems to allow. Only then shall we regard ourselves as ready to judge their solution from our point of view. I believe that unless we follow these guidelines in reading the works of these six philosophers, we fail to treat them as conscientious and intelligent writers who are in all essential respects at least our equals.

In taking up Locke2 I shall consider but one main difficulty which arises from the fact that, as described in the Second Treatise, Locke’s social contract doctrine may justify or allow for inequalities in basic political rights and liberties. For example, the right to vote is restricted by a property qualification. The constitution he envisages is that of a class state: that is, politi-

2. Useful secondary sources on Locke are: Richard Ashcraft, Revolutionary Politics and Locke’s “Two Treatises of Government” (Princeton: Princeton University Press, 1986), and

Locke’s Two Treatises of Government (London: Unwin, 1987); Michael Ayres, Locke: Epistemol- ogy-Ontology, 2 vols. (London: Routledge, 1991); Joshua Cohen, “Structure, Choice and Legitimacy: Locke’s Theory of the State,” PAPA, Fall 1986; John Dunn, The Political Thought of John Locke (Cambridge: Cambridge University Press, 1969); Julian Franklin, John Locke and the Theory of Sovereignty (Cambridge: Cambridge University Press, 1978); Ruth Grant, John Locke’s Liberalism (Chicago: University of Chicago Press, 1987); Peter Laslett, Introduction to Two Treatises of Government (Cambridge: Cambridge University Press, Student Edition, 1988); Wolfgang von Leyden, John Locke, Essays on the Law of Nature (Oxford: Oxford University Press, 1954); C. B. MacPherson, Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962); J. B. Schneewind, Moral Philosophy from Montaigne to Kant (Cambridge: Cambridge University Press, 1990), 2 vols., in Vol. 1, pp. 183–198; Peter Schouls, The Imposition of Method: A Study of Descartes and Locke (New York: Oxford University Press, 1980); John Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), and On the Edge of Anarchy (Princeton: Princeton University Press, 1993); Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979); James Tully, A Discourse on Property: John Locke and His Adversaries

(Cambridge: Cambridge University Press, 1980); Jeremy Waldron, The Right to Private Property (Oxford: Clarendon Press, 1988), esp. Ch. 8, and “Locke, Toleration, and the Rationality of Persecution,” in Liberal Rights: Collected Papers (Cambridge: Cambridge University Press, 1993).

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cal rule is exercised only by those who own a certain amount of property (the equivalent of a 40s. freehold, which in Locke’s day was roughly 4.5 acres of farmable land). How a class state is permissible in his doctrine we shall examine in the third lecture on Locke.

But before we can raise this question we must understand his doctrine in its best light. Remember here J. S. Mill’s aphorism: “A doctrine is not judged at all until it is judged in its best light.”3

3. To this end, we must ask what problem Locke, and each of the other writers, is especially concerned with and why. Hobbes, for example, is concerned with the problem of civil war between contentious religious sects, made worse by conflict between political and class interests. In his contract doctrine Hobbes argues that everyone has sufficient rational grounds, rooted in their most basic interests, for creating, by agreement among themselves, a state, or Leviathan, with an effective sovereign with absolute powers, and for supporting such a sovereign whenever one exists. These basic interests include not only our interest in preserving ourselves and obtaining the means of a commodious life, as Hobbes says, but also, and this is important for Hobbes, who was writing in a religious age, our transcendent religious interest in our salvation. (A transcendent religious interest is one that may override all secular interests.) Taking these interests as basic, Hobbes thinks it rational for everyone to accept the authority of an existing and effective absolute sovereign. He views such a sovereign as the only sure protection against destructive civil strife and the collapse into the state of nature, the worst condition of all.

Locke’s problem is altogether different, and so, as we might expect, are his assumptions: Locke’s aim is to provide a justification for resistance to the Crown within the context of a mixed constitution. This is a constitution in which the Crown has a share in legislative authority, and therefore, the legislature (that is, Parliament) cannot alone exercise full sovereignty. Locke is preoccupied with this problem because he is involved in the Exclusion Crisis of 1679–81, so named because the first Whigs, led by the Earl of Shaftesbury, tried to exclude Charles II’s younger brother James, then Duke of York, from succeeding to the throne.

James was a Catholic, and the Whigs feared that he was bent on establishing in England a royal absolutism and restoring the Catholic faith, using

3. See Review of Sedgwick’s Discourse, in Mill’s Collected Works, Vol. X, p. 52.

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force, and with French help. The Whigs were defeated in this crisis in part because they were divided as to whom to name King in James’s place (the Duke of Monmouth, Charles’s illegitimate son, or William of Orange), and in part because Charles was able to rule without Parliament with the aid of large secret subsidies paid him by Louis XIV of France.

4. Locke, who was trained as a physician, first met the Earl of Shaftesbury when he was called to the Earl’s bedside in that capacity. They became very close, and for a number of years beginning in 1666, Locke was a member of his household. He had an apartment in Exeter House (Shaftesbury’s London residence) on the Strand in London, and there he wrote in 1671 the first draft of the Essay on Human Understanding. The Two Treatises were written during the Exclusion Crisis of 1679–81 (and not later in 1689 as was once believed) as a political tract defending the Whig cause against Charles II. This date explains their tone and preoccupations.4

Sir Robert Filmer,5 a committed royal absolutist with personal connections to the church and the court, who had died in 1653, had written in defense of the absolute monarchy at the time of the English Civil War. Most of his works were published between 1647 and 1653, but they were republished in 1679–1680, at which time his most important manuscript, Patriarcha, was published for the first time. His writings were very influential between 1679 and 1681, when Locke was writing his Two Treatises of Government. Locke’s avowed philosophical aim (see the title page of the First Treatise) is to attack Robert Filmer’s defense of the royalist position and his argument that the King has absolute power that comes from God alone, and to establish that royal absolutism is incompatible with legitimate

4.Laslett thinks that most of the Second Treatise was written during the winter of 1679–1680, including Chapters 2–7, 10–14, and 19. Early in 1680, after Sir Robert Filmer’s Patriarcha appeared (see note 5 below), the First Treatise was written, as a response to that book. In the summer of 1681 Locke added to the Second Treatise a part of Chapter 8 and Chapters 16, 17, and 18. Finally, in 1689, before publication, he added Chapters 1, 9, and 15 to the Second Treatise. See Laslett’s Introduction to Locke’s Two Treatises, p. 65.

5.For Robert Filmer see the following: Patriarcha and Other Writings, ed. Johann Somerville (Cambridge: Cambridge University Press, 1991), which now replaces the earlier edition of Patriarcha by Peter Laslett (Oxford: Blackwell, 1949); besides the many references in Laslett’s Introduction to the Two Treatises, see Gordon Schochet, Patriarchalism and Political Thought (Oxford: Oxford University Press, 1975); John Dunn in his Political Thought of John Locke, Ch. 6, considers the place of Filmer in Locke’s thought; see also Nathan Tarcov, Locke’s Education for Liberty (Chicago: University of Chicago Press, 1984), Ch. 1, which has much to say about Filmer and his relation to Hobbes and Locke.

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government. Very briefly, on Locke’s view, legitimate government can arise only from the consent of the persons subject to it. He views these persons as by nature free and equal, as well as reasonable and rational. Hence they cannot agree to any change unless it improves their condition. Locke believes that absolute government can never be legitimate because he, as opposed to Hobbes, believes that (royal) absolutism is even worse than the state of nature. See ¶¶90–94, esp. ¶91, where Locke distinguishes between the ordinary state of nature, and the unrestrained state of nature to which absolutism leads.6

5.To sum up: in Hobbes, the idea of the social contract is used as a point of view from which rational persons, looking to their most basic interests (including here their transcendent religious interest in salvation) can see that they have sufficient reason for supporting an effective sovereign (and for Hobbes this means an absolute sovereign, because only such can be effective) whenever such a sovereign exists.

In Locke the idea of the social contract is used to maintain that legitimate government can be founded only on the consent of free and equal, and reasonable and rational persons, starting from the state of nature regarded as a state of equal political jurisdiction, all being, as it were, equally sovereign over themselves. In this way Locke seeks to limit the form of a legitimate regime to exclude royal absolutism and so to justify resistance to the Crown under a mixed constitution.

This contrast between Hobbes and Locke illustrates an important point: that what may seem the same idea (the idea of the social contract) can have a very different meaning and use, given its role within a political conception as a whole.

6.All references within the text, unless otherwise stated, are to numbered paragraphs

of the Second Treatise. While for the most part I shall refer only to the Second Treatise, the First is not without its interest and contains a number of passages very important for Locke’s view. To wit: property does not imply authority, I: ¶¶41–43; property related to liberty of use, ¶¶39, 92, 97; on fatherhood and authority, with the mother having an equal share, ¶¶52–55; Locke says that for Filmer, men are not born naturally free, ¶6; and cites him as saying that men are born subjects, ¶50; Locke argues against primogeniture, ¶¶90– 97; he gives a summary of Filmer’s system, ¶5, and says that if this system fails, government must be left again to the old way of being made by contrivance and the consent of men making use of their reason to unite into society, ¶6; and finally, that public good is the good of every particular member of society, as far as by common rules it can be provided for, ¶92.

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6.In reading Locke we should be aware that he was engaged in what increasingly became politically dangerous business. As Laslett tells us, principally on pages 31 and 32 of his Introduction to the Two Treatises, when the third Exclusion Parliament met at Oxford in March of 1681, armed resistance to the Crown seems to have been decided on if the Exclusion Bill failed again (as it did). Locke took an active part; he even went from house to house seeking accommodations for Shaftesbury’s entourage, including a man named Rumsey, chief of Shaftesbury’s desperadoes.

Subsequently, when Shaftesbury, after a period of imprisonment, engaged in what bordered on treasonous consultations, Locke went along with him. He was with Shaftesbury the whole summer of 1682, and he traveled with him to Cassiobury (the seat of the Earl of Essex) where they met with Whig leaders at the height of the so-called Insurrection Plot. And he went there again in April of 1683, after Shaftesbury had died in exile in Holland, when preparations for the Assassination, or Rye House Plot, are alleged to have been under way. After the Rye House Plot was discovered Locke became a fugitive, and lived in exile until 1689. The Two Treatises, a work against the government, had been written earlier, probably while he was still with Shaftesbury, well before the Glorious Whig Revolution of 1688.7 I recount this by now well-known story to give you a sense of the man whose work we are about to discuss. It is quite remarkable that anyone could write such a reasonable work, one of such imperturbable good sense, while actively engaged, at great personal risk, in what may have been treason.

7.I call your attention to what Locke says in the first sentence of the Preface to the Two Treatises: namely, that there had been a middle part of the work, longer than what he publishes here as the Two Treatises. He says that it is not worthwhile to tell us what happened to that middle part; but Locke was a cautious man and perhaps had reason to destroy it. Perhaps it contained constitutional doctrines that might have cost him his head. A list of books in Locke’s library suggests that to mislead the King’s agents he may have called the whole work De Morbo Gallico (the French disease), in those days a name for syphilis. Locke and Shaftesbury did think of royal ab-

7. See note 4 above. For an interesting discussion concerning when and why Locke wrote the Two Treatises, see Laslett’s Introduction, pp. 45–66.

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