Locke on Natural Rights, Political Society, Resistance, and Toleration

The two most important seventeenth­century English defenses of unlimited political authority, those authored by Robert Filmer and Thomas Hobbes, were composed around the time of the English Civil Wars and were still, in their somewhat divergent ways, the primary vindications of the absolutist position in the decade leading up to the Glorious Revolution of 1688. John Locke’s two most important works in political philosophy, Two Treatises of Government and A Letter Concerning Toleration, were composed in this tumultuous decade. The Two Treatises was largely written between 1679 and 1683 as both a critique of absolutism and as support for the increasing extra-legal opposition to Charles II that was led by Locke’s patron, the Earl of Shaftesbury. The Letter was written in 1685 while Locke was in hiding in Holland — on the lam for his association with revolutionary activities in England in 1679-83. Both works were published in England in 1689 after Locke’s return following the Glorious Revolution. I will begin with the doctrine of the Two Treatises and then turn to the Letter.

Locke’s First Treatise — most of which was lost during Locke’s exile — was a detailed critique of Filmer’s defense of monarchical authority. Locke presents his own positive doctrine in the Second Treatise. Locke frequently employs the traditional language of the «Law of Nature,” but he takes the core substance of the Law of Nature to consist in the moral rights possessed by all individuals. Locke takes these rights to define morally protected domains within which individuals may do as they see fit. Locke rejects the Hobbesian view that freedom is a matter of being under no moral constraints and, hence, being morally at liberty to do whatever one pleases. For, if one is subject to no moral constraints, others also will be under no such constraints and, hence, they will be free to domineer over one whenever it suits their humor to do so. That can hardly be a state of freedom. Instead, freedom requires we each be subject to norms that preclude “restraint and violence from others” — norms that preclude infringement upon one’s “person, actions, possessions, and [one’s] whole property.” While these norms provide one with protection against the arbitrary will of others, to be subject to these norms is not to be subject to anyone’s arbitrary will (1980: §57).

The keynote claim of the Second Treatise is that each person possesses a natural moral right to freedom — a natural right to live one’s own life in accord with one’s own choices. This fundamental right is articulated in terms of a number of somewhat more specific first-order rights, viz., the right to dispose of one’s own body, faculties, and efforts as one sees fit and the right to acquire holdings in extra-personal objects which one may use as one sees fit. Correlative to each person’s natural rights are each other persons’ natural obligations «… not, unless it be to do justice on an offender, to take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another” (1980: §6). A further aspect of our natural right to freedom is our right that others not violate their contractual agreements with us. “[Promises and compacts” made in the state of nature are binding on us because «truth and keeping of faith belongs to men as men” (1980: §14). In addition, all persons possess second-order natural rights to defend themselves against violations of their first-order rights and to extract restitution from and to punish those who have violated their rights (1980: §10-§12).

It is often said that Locke simply asserts these natural rights or asserts that God has decreed them. This is a serious misreading. Throughout his life Locke did hold that the law of nature counts as law and as obligatory because of God’s authoritative endorsement of it (1959: 473, 474). Nevertheless, the rights that God wills that we abide by are grounded in our nature; and they can only be known through an investigation of our nature. As Locke puts it in his early (1663-4) Essays on the Law of Nature, since man has been made such as he is, equipped with reason and his other faculties and destined for this mode of life, there necessarily result from his inborn constitution some definite duties for him, which cannot be other than they are … [H]e has made man such that these duties of his necessarily follow from his very nature … [N]atural law stands and falls together with the nature of man as it is at present. (1997b: 125, 126)

The law of nature is “the permanent rule of morals” because it is “firmly rooted in the soil of human nature.” Locke’s claims about the rights of individuals, the nature of the political institutions they have reason to adopt, and the grounds for resistance against unjust state action are largely detached from his theological contentions that God created us and wills that we respect the rights that are rooted in our human nature.

Almost all of Locke’s argumentation in the Second Treatise on behalf of natural rights rests on two normatively seminal facts about our inborn condition. The first of these is that each individual pursues his own happiness and that this pursuit of happiness is rational. In his An Essay Concerning Human Understanding, Locke says that, while all human happiness is good, each individual naturally and reasonably pursues his own happiness. “All other good, however great in reality or appearance, excites not a man’s desires who looks not on it to make a part of that happiness wherewith he, in his present thoughts, can satisfy himself” (1959: 341). Locke makes clear that he is affirming each individual’s pursuit of personal happiness in a fragment written shortly before the publication of the Two Treatises.

’Tis a man’s proper business to seek happiness and avoid misery. … I will therefore make it my business to seek satisfaction and delight and avoid uneasiness and disquiet and to have as much of the one and as little of the other as may be. But here I must have a care I mistake not, for if I prefer a short pleasure to a lasting one, ’tis plain I cross my own happiness.

(1997d: 296)

In the Second Treatise, Locke focuses on the crucial, necessary condition of individual happiness, viz., self-preservation and more specifically yet on the crucial interp er sonally necessary condition for self­preservation, viz. freedom. Freedom is what we need from other people if we are to attain self-preservation and happiness (1980: §17).

The second normatively seminal fact about human beings is that we all have the same fundamental moral standing. We are naturally in a state of moral equality, wherein all the power and jurisdiction is reciprocal, no 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, and the use of the same faculties, should also be equal one amongst another without subordination or subjection. (1980: §4)

We are all «equal and independent” beings «sharing all in one community of nature.” Both these claims come into play in the various ways in which Locke supports his claim that «reason… teaches all mankind… that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions” (1980: §6).

The first of Locke’s arguments for a natural right to freedom is the generalization argument. It begins with Locke reiterating «[t]his equality of men by nature” (1980: §5). Locke then provides a long passage in which Richard Hooker asserts that, if one makes a claim to be loved by others, one must recognize their like claim to one’s love for them. Since Locke himself is not proposing that we each have a right to be loved and an obligation to love, the point of the Hooker passage must be to illustrate the principle of generalization; any claim that one makes for oneself against others, one must grant to all others of the same moral status. For Locke, the crucial claim that is rational for each person to make against others is the claim to freedom from interference. Since each rationally makes this claim against others, each is rationally required to affirm every other person’s right to freedom from interference.

The second of Locke’s arguments is the non-subordination argument. Absent some special agreement with or provocation by another, one is justified in “harm[ing] another in his life, health, liberty, or possessions” (1980: §6) only if this other person is naturally subordinate to one. However, it is false that other persons are naturally subordinate to one. Human beings do not exist for “one another’s pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another’s uses” (1980: §6, original emphasis). Since each person is an «equal and independent” being, absent special agreement or provocation, the subordination of that person to one’s own purposes wrongs that individual.

One further Lockean argument deserves mention: the preservation of mankind argument. According to Locke, each of us is “bound to preserve himself1 (1980: §6). I am bound to preserve myself and I need to recognize that each other human being is “by like reason” bound to preserve himself. Locke then proclaims that each person, “when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind11 (1980: §6). It sounds as though Locke is saying that, when it does not endanger one’s own preservation, one is bound to devote oneself to the preservation of others. Yet, when Locke parses his call for preserving the rest of mankind, he says that this requires one «… not, unless it be to do justice to an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another” (1980: §6). And in the next sentence he says that to preserve the rest of mankind is to be “restrained from invading others rights, and from doing hurt to one another” (1980: §7). So, the most plausible reading of the “preserve the rest of mankind argument” is that, while one’s appropriate response to the fact that one is bound to preserve oneself is for one to seek one’s self-preservation, one’s appropriate response to the fact that another is bound to preserve himself is not to hinder that other person’s pursuit of his self-preservation. One’s happiness provides one with an end that one has reason to promote while others having like ends of their own provides one with reason to be constrained in one’s conduct toward them.

Locke’s arguments for a natural right to do as one sees fit with one’s person, one’s liberty, and one’s possessions bypass the question of what makes a possession legitimate and, hence, properly within the possessor’s domain of freedom. Locke turns to this question in his famous chapter “Of Property” which begins with the rejection of the idea that the earth is originally jointly owned by all of mankind. If the earth were originally jointly owned, every individual’s use or appropriation of any raw material would require the unanimous consent of all of mankind. However, such consent has never and will never be given. “If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him” (1980: §28). Since the premise that the earth is originally jointly owned leads to the conclusion that all morally upright persons must sit still and starve, this premise must be mistaken. Instead, the earth must be originally unowned. This opens the way for individuals to use the raw material of the earth without first asking leave of all of mankind and for individuals to acquire property in portions of the earth «without any express compact of all the commoners» (1980: §25).

Locke had argued in the First Treatise (FT 1960: §86-§88), that since each person has a right to pursue his happiness and self­preservation and the sustained, purposeful use and transformation of raw material is crucial to this pursuit, individuals must have a right to use and acquire unowned raw material; therefore, there must be some procedure that gives rise to rightful possession. In the Second Treatise he provides his famous labor-mixing account of just initial acquisition. Since «every man has a property in his own person … The labour of his body, and the work of his hands, we may say, are properly his” (1980: §27). Persons acquire private property rights by mixing their labor with bits of unowned material. Locke is not saying that one gathers up a cup or a shovelful of one’s labor and literally mixes this with an acre of raw land or ten kilos of iron ore. Rather, he is talking about one’s industrious transformation of some raw material for the sake of some intended ongoing use or project. Through the purposive mixing of his labor with some raw material, an individual invests his productive capacities and energies in the resulting object. If another agent, without the consent of the labor investor, then takes possession of that object or precludes the investor from making use of that object, that other agent deprives the investor of a portion of his productive capacities and energies and, thereby, violates the investor’s self­propriety. Just as the conscription of a man’s labor for one’s own purposes is a type of rights-violating enslavement of that man, so too it is a type of enslavement to take possession of or control over an object in which a man has invested his labor without his consent. In addition, Locke holds that ownership over justly held objects can be transferred through the voluntary consent of the antecedent owners.

Nevertheless, Locke endorses two restrictions on legitimately acquired holdings. The first restriction is that one will not have a just title to what one has acquired through labor investment or free exchange if that holding will spoil in one’s possession. However, this restriction has little bite since only irrational people will labor or trade for goods that will spoil in their possession; and, once money comes into existence, one will always be able to exchange goods that will perish in one’s possession for non-perishable coins. The second and more important restriction is that one will not have a just title to goods that one has acquired through labor investment or voluntary exchange if one’s possession will not leave others with «enough, and as good” (1980: §27) for their use or acquisition. Locke is not saying that equal amounts of raw material have to be left for others. Rather, each person has a claim against being «straitened” by the acquisitions of others (1980: §36).

Locke holds that this proviso is readily satisfied before money comes into existence. If money did not exist, the “rule of propriety, (viz.) that every man should have as much as he could make use of, should still hold in the world, without straitening any body, since there is land enough in the world to suffice double the inhabitants” (1980: §36). Also, those who become cultivators — and, hence, owners — of land use less land than they have used as hunter-gathers. Thus, their acquisition of private property in land releases more land for the use of others (1980: §37). However, the appearance of money vastly changes matters. For, money, both as a means of exchange and a store of value, greatly encourages increased production for profitable trade. In turn, this encourages more extensive appropriation of raw material for the sake of production for trade, and this more extensive appropriation may well leave some people without as much opportunity to use or appropriate raw materials as they would have had if all of the earth had remained in the commons (1980: §48, §49).

Locke’s official and weak argument at this point is that the developments that follow the introduction of money will not violate the «enough, and as good” proviso because that proviso will have been repealed through everyone’s agreement to the existence of money. That argument is weak because money does not in fact arise through agreement and, even if it did, not everyone who ends up worse off in terms of opportunity to use or acquire raw material will have been a party to that agreement. There is, however, a better and very important argument that is lurking just below the surface of Locke’s bad argument. That argument turns on the reason that Locke takes everyone to have for agreeing to the existence of money. That reason is that all individuals will at least reasonably expect to be net gainers because of the vast expansion of productive economic activity that comes in the wake of the introduction of money — along with the establishment of «laws of liberty to secure protection and encouragement to the honest industry of mankind” (1980: §42).

This facilitation of human industry — of the creation and employment of human capital — greatly increases the size and the vibrancy of economic life. Indeed, it is specifically through the introduction of more productive forms of labor that economic wealth is enhanced. For “labour makes the far greatest part of the value of things we enjoy in this world: and the ground which produces the [raw] materials, is scarce to be reckoned in, as any, or at most, but a very small part of it” (1980: §42). Since wealth arises from labor which can be expanded and made more productive, one person’s economic gain is apt to favor, rather than impede, the economic gains of others. Moreover, the enhanced scope and vigor of productive economic activity is likely to make everyone a net gainer in economic opportunity — even those for whom less raw material remains available for use or appropriation.

Locke begins his account of justifiable political authority with a picture of human existence in a state of nature, that is, in the absence of political institutions. The key idea of state of nature theorizing is to determine what problems (if any) would exist in the absence of political authority and to posit that rational individuals would grant to political rulers only the sort of authority needed to solve those problems. Locke’s picture of the state of nature differs sharply from Hobbes’ depiction for two reasons. First, contrary to Hobbes, Locke holds that «The state of nature has a law of nature to govern it” (1980: §6), which is at least primarily a matter of individuals possessing by nature rights over themselves, their liberty, their labor and, through the exercise of their natural rights, particular acquired rights to property and contractual compliance. Second, Locke presumes that in the absence of centralized political enforcement of these rights, individuals will to some significant degree be disposed to abide by one another’s rights.

Nevertheless, in the state of nature there will be some intentional or negligent violations of rights and, especially as more complex forms of property and contracts arise, there will be honest disputes about whether particular actions or omissions are infringements upon rights. In addition to this, there is a tendency for people engaged in disputes to be biased on their own behalf and to be aware of this bias in others. Even if an individual arrives at a sound judgment about whose rights have been violated by whom and what the proper restitution and punishment should be, the soundness of this judgment may not be known to others and the power to enforce the judgment may not exist. As a result, in the state of nature, the enjoyment of one’s rights will be «very unsafe, very insecure” (1980: §123). Locke tells us that, to secure safety for «the mutual preservation of their lives, liberties, and estates, which I call by the general name, property” (1980: §123), individuals consensually form political society. And, in turn, political society establishes a political order with three crucial functions: the clear articulation and promulgation of laws — «which are only so far right, as they are founded on the law of nature” (1980: §12); the appointment of known and impartial judges; and the marshalling of sufficient power to enforce just law and judicial decisions.

With one exception, those who form political society cede to it only their second-order rights of defense, restitution, and punishment. Indeed, because each individual is bound to preserve himself and, hence, to preserve his freedom, no one can cede more than these rights. To think that people seeking to avoid the dangers of the state of nature would put themselves under an unrestricted Hobbesian sovereign 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 Hotis” (1980: §93). The one exception is that one’s entrance into political society also includes consent to taxation to fund the sanctioned functions of government (1980: §140). Indeed, this is the crucial element of consent. For consent to be subject to rightful defensive, restitutive, or retributive force by an established state is no more necessary than consent to be subject to such force in the state of nature. In contrast, state taxation that is not consented to is on a par with state of nature robbery. “[F]or I truly have no property in that, which another by right takes from me, when he pleases, against my consent” (1980: §138). The real problem for Locke that arises in connection with his attempt to provide a social contract justification for political society and the state is that consent has not in fact been given for the state’s taxation of its subjects and, hence, on Lockean grounds that taxation is theft.

The final two chapters of the Second Treatise are devoted to defending forceful resistance by individuals and by political society at large against overreaching state power. Locke’s core premise here is that all political rulers — be they monarchs or parliaments — remain subject to the basic moral constraints imposed by the law of nature. They are charged to protect and must not themselves infringe upon their subjects’ rights of life, liberty, and estate. In addition, existing rulers are bound to preserve the constitutional order that is created to serve those rights. Individuals and political society do agree to public authorities drawing the natural law closer by providing clear and known codifications of its strictures (1980: §135). If more fine-grained enacted laws and their administration can reasonably be construed as satisfying those strictures, members of political society are bound to abide by them even if they are not precisely the enacted laws or modes of administration which this or that member would most favor. Nevertheless, when legislation or executive action clearly violates a subject’s retained rights or the contract that exists between political society and its chosen ruler, forcible resistance is justified. That the present ruler has crossed the line is most clear when “a long train of abuses, prevarications and artifices” (1980: §225) make visible a design to act contrary to the retained rights of individuals or to his contractual obligations to political society.

Forcible resistance to injustice «may occasion disorder and bloodshed.” But what is the alternative? «I desire it may be considered, what a kind of peace there will be in the world, which consists only in violence and rapine; and which is to be maintained only for the benefit of robbers and oppressors” (1980: §228). Since rulers remain subject to the basic constraints of the law of nature, Locke has no hesitation about saying that they are criminals when they clearly break through those constraints. Indeed, one of the most strikingly libertarian aspects of Locke’s thought is his obvious hatred of any double standard that whitewashes the crimes of established rulers.

The injury and the crime is equal, whether committed by the wearer of a crown, or some petty villain. The title of the offender, and the number of his followers, make no difference in the offence, unless it be to aggravate it. The difference is, great robbers punish little ones, to keep them in their obedience; but the great ones are rewarded with laurels and triumphs, because they are too big for the weak hands of justice in this world, and have the power in their possession, which should punish offenders. (1980: §176)

There is more than a hint here of the radical libertarian contention that the state’s enforcement of its monopoly on the use of force in society amounts to the enforcement of its monopoly on the commission of crime.

It is crucial to recall that libertarianism stands as much for “personal” liberty as “economic” liberty. The essential connection between these stances is brought out by two features of Locke’s A Letter Concerning Toleration. First, the Letter both defends religious freedom as an implication of the Second Treatise’s general defense of private property, freedom of contract, and radical limits on state authority. Second, it is clear that Locke also views religious toleration as the prime exemplar of rightful human freedom. Freedom starts with religious toleration and the repudiation of the state’s pretense of authority over the individual’s pursuit of salvation; and it generalizes into Locke’s radical critique of overreaching coercive power. In A Letter, this critique extends to coercive efforts to suppress sinful actions that are not prejudicial to the rights of others (1983:44) and to coercive paternalist efforts to protect people from their own mistakes (1983: 34, 35).

The essence of toleration is minding one’s own business and allowing others to mind theirs. Toleration requires the decentralization — de-politicalization — of decision-making authority. Such decentralization requires the recognition of distinct domains — distinct spheres of action — over which distinct individuals (or the associations that they voluntarily form) have authority. Within a tolerant social order, the role of legitimate coercive institutions is not to enforce collective judgments about how people should worship or marry or medicate themselves but, rather, to enforce people’s rights to do as they see fit with themselves and their just possessions. These points are illustrated by Locke through his consideration of a dispute between those who believe that the sacrifice of a calf will be “well-pleasing to God” (1983: 42) and those who believe it will be displeasing to God. According to Locke, the dispute about the use of the calf should not be settled by a political judgment about whether the sacrifice of calves is pleasing or displeasing to God. Rather, the dispute should be settled by identifying “whose Calf it is” (1983: 42), that is, which party has the right to dispose as he sees fit of this particular calf. Suppose this particular calf belongs to the party who believes that its sacrifice will be well-pleasing to God. Then the other party must allow the sacrifice to be performed; that other party must tolerate the sacrifice on the grounds that the other party has authority over this calf. But that party need not endorse that sacrifice or the judgment that the sacrifice will be pleasing to God. There is one argument that beautifully conveys Locke’s deeply libertarian view that social disorder and strife arise not from freedom but, rather, from deprivations of freedom. Locke considers the argument that religious dissidents are known to be threats to peace and order because they are always meeting in secret and grumbling about their persecution. Hence, their suppression or extirpation is justified. Locke asks his readers to imagine that black-haired or gray-eyed people suffered the same sorts of restrictions and injuries that are imposed on religious dissenters. They too would tend to gather in secret and grumble about their lot and even conspire to overturn their persecutors. “[T]hese men, growing weary of the Evils under which they labour, should in the end think it lawful for them to resist Force with Force, and to defend their natural Rights” (1983: 55). But what is the true source of the danger? “[T]here is one only thing which gathers People into Seditious Commotions, and that is Oppression” (1983: 52). “It is not the diversity of Opinions (which cannot be avoided), but the refusal of Toleration to those that are of different Opinions (which might have been granted), that has produced all the Bustles and Wars, that have been in the Christian World, upon the account of Religion” (19 8 3:5 5 )