Constitutional Government: Locke, Second Treatise 

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Chapter 1. Who Is John Locke? [00:00:00]
Professor Steven Smith: It’s so nice to see you again on this gorgeous autumn day.
And we had a wonderful, wonderful weekend, didn’t we? Yes, we did. Okay, today, I
want us to begin… we move ahead. We’re moving ahead. Today we begin with Mr. John
Locke. For the next three classes, Mr. Locke. It is hard to believe that a little book like
this, in this not terribly distinguished edition, mind you, but nevertheless, in this edition
of just over a hundred pages, that a book of this length could have such world shaping
effects. If anyone would ever doubt the importance of ideas, political ideas, in history, I
would only say to you to consult the history and the influence of John Locke.
Remarkable. I want to talk today a little bit about Mr. Locke. John Locke is, for our
purposes today, I mean, there are many reasons why one would read him in different
kinds of classes, but for our purposes, John Locke gives the modern state, the
expression that is most familiar to us. His writings seem to have been so completely
absorbed and adopted by Thomas Jefferson when he wrote the Declaration of
Independence that Locke seems to have become virtually a kind of honorary founding
father, as it were, of America.

Among other things, John Locke advocates the natural liberty and equality of human
beings, our natural rights to such things as life, liberty, and what he calls “estate” or
property, the idea that government, at least legitimate government, is government by
consent, that legitimate government is necessarily limited and limited government
constituted by a separation of powers, and that when governments become repressive or
that when governments become abusive of natural rights, that the people have a right to
revolution. In addition to this, John Locke was a famous advocate of religious toleration.
His name is forever linked with our ideas today of what we might call liberal or
constitutional democracy. He gives the modern constitutional state, again, its definitive
and, in many ways, most familiar expression.

Yet, Locke did not arise ex nihilo, nor did anyone. Locke’s writings come from
somewhere and from some source. They were prepared, in many ways, in part by
Machiavelli, who had died approximately a century before Locke’s birth. But more
importantly, by another English writer, or by an English writer with whom we have spent
some time, namely Mr. Hobbes, Thomas Hobbes. Hobbes took Machiavelli’s idea of The
Prince and, in effect, turned it into a theory or doctrine of sovereignty. The Hobbesian
sovereign is at the basis of our ideas of impersonal, or what we might call
representative, government. He transforms princely rule, Hobbes does, into an office
called the sovereign. And this office is, for Hobbes, the creation of a social contract, or
covenant, as he calls it, responsible to the agents or persons who have created the
contract. Hobbes had taught that the sovereign is representative of the people who
create his office in order to ensure peace, justice, and order. Without the power of the
sovereign, we would find ourselves in a condition of nature, a state of nature, a term
coined by Hobbes to indicate a world without civil authority or at least with only weak
civil authority, unable to enforce common rules and laws. Hobbes gave voice to the
doctrine of secular absolutism, one that invests the sovereign with absolute power to do
whatever is necessary to ensure, again, the rule of law, justice, and political stability.

And out of these rather harsh and formidable premises, Locke created a different, what
we would think of as a more liberal constitutional theory of the state, while being still, in
many ways, very dependent on the premises that Hobbes, again, modifying Machiavelli,
had undertaken. Locke set out a process of domestication. He set out to tame or to
domesticate Hobbes’s fierce or harsh theory of absolute government, which had found
few defenders in his own day. Locke’s most important work of political theory, of political
philosophy, is his Two Treatises of Civil Government, of which we are only reading the
second. The book we have before us is often simply referred to as the Second Treatise,
but you will probably have suspected, I think, that the Second Treatise was preceded by
a first treatise. The First Treatise is much longer than the Second Treatise, and it was an
elaborate and painstaking, one could almost say deconstruction, of the theory of the
divine right of kings, which in his era, had received expression by a man named Robert
Filmer, whose name appears, I think occasionally, in the Second Treatise. Filmer had
written a book called Patriarcha, and thePatriarcha had argued that all political authority
derives from the grant of authority that God had given to Adam, and therefore, that all
legitimate authority has divine right behind it.

Locke’s First Treatise is a very important, but also, I have to say, extremely tedious
work, and you should be grateful that I am not assigning it to you. But it’s a very
interesting book, in its own right, of in many ways, biblical criticism and exposition. But
it’s only in the Second Treatise that Locke set out to set out his own positive theory of
government, as it were. This book was written, we now believe, shortly before the
famous Whig Revolution of 1688, and in it, Locke sets out his theory of parliamentary
supremacy, rule of law, and constitutional government. To put it maybe slightly oddly,
Locke was in his day, to some degree, what Aristotle was to his. The Second Treatise is
intended as a practical book. It was a book addressed not so much to the philosophers of
his age, but to Englishmen, written to them in the everyday language of their time. He
wrote to capture, in a way, the common sense of his time, although this is not to say
Locke was not, at the same time, a deeply controversial figure. Locke had the ability,
and it’s a very desirable ability, to take, in many ways, radical or even revolutionary
ideas and express them in a kind of language that makes people believe that this is what
they had thought all along. And that is, to some degree, the genius of the Second
Treatise. In many ways, that is easier for us, because Locke’s language has become, for
us, the kind of I would almost say common sense, or shorthand language, for the way
we think about politics. And it was, again, a mark of his genius to be able to create that
language and give it a stamp that seemed to make people believe that this is what they
had simply been thinking all along.

Locke was himself a deeply political man, but he was also, at the same time, as I’ve just
been hinting, perhaps, a very reticent one. He lived in a period of intense religious and
political conflict. He was just a boy in school when a king, Charles I, was executed and
he was an adult when another king, James II, was overthrown and forced into exile. He
was a younger contemporary of Hobbes, but he lived in a period of immense civil conflict
and war. Locke spent many years at Oxford, where he was both a student and a fellow,
and he was suspected, throughout much of his time there, of harboring radical political
sympathies, but he was so cautious and careful in expressing them that after many
years, even those closest to him were unclear as to what his opinions were. The master
of Locke’s own residential college at Oxford, Balliol College, described Mr. Locke as the
“master of taciturnity,” a master of taciturnity because he could not discover, through
questioning and so on, Locke’s opinions on religious and political matters. Just think of it.
There used to be a very wonderful bust of Locke in the lobby of the British Arts Centre
and I used to recommend to students, when they were down in that part of campus, to
stop in and look at his face, because as with Machiavelli and others, the face is very
revealing. And I used to ask people to see do you detect in here the sense of the master
of taciturnity that his college master had discussed?

Locke was a private secretary and a physician to a man named Anthony Ashley Cooper,
later known as Lord Shaftesbury. Shaftesbury had a circle, the Shaftesbury Circle, of
political followers who were opponents of the monarchy and who were forced into exile
in 1683. Locke followed them into exile. He spent several years in Holland in 1683 before
returning to England, again, shortly before the Whig Revolution, where his book,
the Second Treatise, was published and where he lived until his death in 1704. Just two
years ago, in fact, Yale, at the Beinecke Library, held a major conference in
commemoration of the 300th anniversary of the death of Mr. Locke.

Chapter 2. John Locke’s Theory of Natural Law [00:13:11]

So those are a few things about his contributions and his context. I want to begin today
the substantive part of this talk by focusing on the theme that, in many ways, forms the
central core of Locke’s political doctrine, his Theory of Natural Law. This is a term that
has come up from time to time. There is no modern thinker that I’m aware of who
makes natural law as important to his doctrine as does Locke. The best way to observe
the working, or to reconstruct the working, of natural law is to follow a procedure that
we have seen before; to think about what is the condition of nature, the state of nature,
where we can see the natural law in its operative form. The state of nature, for Locke, in
many ways, as for Hobbes, is not a condition of ruling and being ruled, as it is for
Aristotle. The state of nature is not a political condition. Locke describes the state of
nature as a condition of perfect freedom. While Aristotle said that we were, by nature,
members of a family, a polis, a moral community of some kind, bound by ties of civic or
family obligation, Locke understands, by the state of nature, a condition without civil
authority or civil obligations. The state of nature is not, for him, an historical condition,
although he does occasionally refer to the vast tracts of North America as suggesting a
condition of nature, but the state of nature is a kind of thought experiment.

What does human nature like in the absence of authority? The state of nature, Locke
suggests to us, is not an amoral condition, as it was for Hobbes. It is not simply a
condition of war, of all against all. The state of nature, he tells us, is in fact a moral
condition. It is governed by a moral law, or a natural law, that dictates peace and
sociability. There is a moral law of nature that determines that no one should harm
another person in their life, liberty, or possessions. This natural law, Locke affirms,
“willeth the peace and preservation of all mankind.” So the natural condition, for Locke,
is a moral state, one in which a natural law, again, dictates the peace and preservation.
It is not a war of all against all. Locke’s natural law, in some ways, seems like a very
traditional form of moral law, familiar to readers of his time; readers who would have
been familiar with the natural law tradition, going back to Cicero, the Roman Stoics, St.
Thomas Aquinas, and in Locke’s own day, an important Anglican divine by the name of
Richard Hooker.

Locke’s theory of moral law, or natural law, sounds comforting and traditional, and to
some degree, it is. All civil authority has its foundation in a law of reason that is
knowable, by virtue of our rational capacities alone. The law of nature declares,
according to Locke, that we are, in his famous term, the “workmanship of one
omnipotent and infinitely wise maker.” And as products of divine workmanship, we ought
never to harm anyone in their lives, liberties, or possessions. Locke, again, seems to
effortlessly weave together the Stoic tradition of natural law with these Christian ideas of
divine workmanship into one seamless whole. You can see the way in which Locke’s
rhetoric here, in his writing, brings together different strands of the philosophical and
theological tradition, weaving them together in a kind of effortless whole almost. Do not
be simply seduced by this. Why do I say that? Because even within the same
paragraphs, Locke’s natural law, the law that, again, mandates or dictates “peace and
preservation of all mankind,” turns into a right of self-preservation.

From the beginning, you have to say, it is not altogether clear even whether the natural
law is a theory of moral duty, duties that we have to preserve other’s duties and
obligations, or whether it is a theory of natural rights that mandates that the highest
priority be given to individual self-preservation and whatever is necessary to achieve the
preservation of the individual. The state of nature is a condition without civil authority.
The law of nature, in other words, has no person or office to oversee its enforcement or
its application. So this state of nature that he once describes, or early describes in the
book is a condition of peace and mutual distrust, quickly degenerates into a condition of
civil war, or of war, where every individual serves as the judge, jury, and executioner of
the natural law. The state of nature quickly becomes a Hobbesian condition of essentially
every man for himself. Consider the following passage in section 11 of the Second
Treatise. “The damnified person,” Locke writes–someone who has been mistreated in the
condition of nature–the “damnified person,” who has been injured or mistreated, “has
this power of appropriating to himself the goods or services of the offender by the right
of self-preservation, as every man has a power to punish the crime to prevent it being
committed again, by the right he has of preserving all mankind, and doing all reasonable
things he can in order to that end.” In other words, if you have been wronged, or feel
you have been wronged, in the state of nature, you have, according to the natural law,
for Locke, the right to, as he puts it, appropriate to yourself the goods or services of the
offender. And you have that–to take from them their goods, their property, their services
in some way, whatever you feel appropriate as, again, the person who has suffered
some kind of wrong. Every person becomes, as it were, judge and executioner of the law
of nature.

The fundamental law of nature, Locke says here, is the right of self-preservation. And
this states that each person is empowered to do, again, whatever is in his power, to
preserve him or herself. Again, consider the following in section 16: “And one may
destroy a man who makes war upon him.” May destroy another who makes war upon
you. “Or has discovered an enmity to his being, for the same reason that he may kill a
wolf or a lion,” because such men “are not under the ties of the common law of reason.”
They “have no other rule but that of force and violence,” so also, they may be treated as
beasts of prey, “those dangerous or noxious creatures that will be sure to destroy him
whenever he falls into their power.” Listen to that language. From an original moral
condition, where we are under a natural law not to harm others, a law to preserve and
protect the well-being of others of our kind, we have become like lions and wolves to
each other, beasts of prey and other noxious creatures. What is the state of nature, but,
in the words of Dorothy Gale, “lions, tigers, and bears, oh my!” This is what we are to
one another.

This is what I’ve come to think of as Locke’s bestiary, and in fact, the Second Treatise is
rife with language of comparing human beings and our behavior to animals. He speaks
about lions and wolves. Elsewhere he speaks about polecats and skunks and foxes. If, in
fact, we are all beings, as he says, created under a natural law, we seem to quickly
degenerate into almost bestial behavior. Beasts of prey, far from being cooperative and
peace seeking creatures. The very freedom that such beings as ourselves enjoy in a
state of nature leads us to abuse that freedom and, in turn, requires or is at the basis of
the need for civil government. However, in the meantime, the question that any reader
of theSecond Treatise has to ask of themselves–and I hope you’ve put this forward in
your sections to one another–is whether the natural condition, as Locke understands it,
is one overseen by a moral law of justifying or sanctifying peace and security, or
whether Locke’s state of nature is simply a thinly veiled description, a thinly papered-
over description, of the Hobbesian war of all against all. Was Locke simply Hobbes, in
some way, in sheep’s clothing? Remember his famous taciturnity.

Locke seems to be speaking two very different languages, in other words, one of
traditional natural law that holds out duties to others as primary and the other, in some
ways, a modern Hobbesian conception of natural rights that maintains the priority of
right and each individual’s right to self-preservation. Is Locke, in other words–and this is
perhaps more of an historical than a theoretical question–is Locke a member of the
ancient, in some ways, Ciceronian and Thomistic tradition of natural law or a modern
Hobbesian? Do his politics derive from a theological conception of divine workmanship or
an ultimately, you might say, naturalistic conception or account of the human passions
and the struggle for survival? Do his priorities go to duties or to rights? Or is Locke
simply confused? Is he confusing two different languages or is he being intentionally
ambiguous in his account?

A recent book, by a well-known scholar of Locke has argued, I think quite powerfully in
some ways, that Locke’s idea of equality in the state of nature specifically relies upon a
certain kind of Christian theological context of argument. Locke’s statement in paragraph
four of the Second Treatise, his statement that “there being nothing more evident than
that creatures of the same species and rank, promiscuously born to all the same
advantages of Nature, should also be equal to one another.” That Locke’s statement that
creatures of the same species and rank should be equal to one another, this is said to
rely upon and depend upon a very specific religious argument. What it means to belong
to a species and why belonging to the same species confers a special rank or dignity on
each of its members only makes sense, according to this recent interpretation, if you
believe or if it is believed that the species in question has a specifically moral relation to
God. The question, I think, is whether Locke’s idea of equality in the state of nature, or
his idea of the moral law in the state of nature, relies upon this belief, or whether it can
be inferred from such things as the basic principles of freedom, whether this can be
inferred, as it were, from purely non theological, naturalistic premises or grounds.

Locke, to be short, is silent in the Second Treatise about the theological foundations of

his position. There are no discussions of important theological figures, such as Jesus or
St. Paul or the New Testament, at least in the Second Treatise; he discusses these
issues at length elsewhere. These may be, in some way, thought of as background
considerations, but the question remains, I think, for us whether these are deeply
embedded in Locke’s arguments about divine workmanship or whether or not that
language of divine workmanship simply serves as a kind of window dressing, again, for a
purely secular naturalistic theory of human nature and political authority. Very important
issue, I think, in coming to understand Locke and indirectly, very important for how we
come to think of the American regime because–I’ll just say, simply as a kind of footnote
to what I’ve been saying–if Locke is thought of in some ways, as his doctrine as being, in
some ways, at the founding principles of the American regime, the Declaration of
Independence most notably, it becomes very important. It becomes part of a
contemporary public argument whether those foundations owe their authority to some
kind of theological doctrine, as Jefferson calls it in the opening of the Declaration, “the
Laws of Nature and Nature’s God,” seems in some way to have Lockean overtones to it.
Do our founding documents imply a theology of some kind, “the Laws of Nature and
Nature’s God,” or are those principles, again, purely of a naturalistic secular kind that
can do without theology altogether?

That is an argument, a kind of scholarly and academic argument, to be sure, but it spills
over into many of our public debates over the role or place of religion in public life,
whenever we talk about issues of the appropriateness of issues like school prayer or
should the Ten Commandments be publicly displayed in courthouses or in other public
places? Or if you want to take another famous Jeffersonian position, is there a kind of
absolute firewall, a wall of separation, between religion and the state? These issues that
we very much work on today and think about are, you can see, deeply embedded in how
we think about Locke and those opening sections of the Second Treatise dealing with
natural law and the state of nature. So you can see, again, how these ideas penetrate
deeply into the marrow of our public or political culture. Are we so different? Have we
become so different? Will people living three-hundred years from now think of us as so
different, and our public debates so different, from those that animated the public issues
in the time of John Locke? Maybe not. Maybe we aren’t that different. So enough for
contemporary. Let me go back to Mr. Locke.

Chapter 3. Property, Labor and the Theory of Natural Law [00:31:27]

The core of Locke’s theory of natural law in the state of nature is arguably lodged in his
account of property, chapter 5 of the Second Treatise. If you remember anything about
Locke after this class, remember chapter 5. It is, by all accounts–maybe chapter 19 as
well, “The Theory of Revolution,” but chapter 5, account of property; certainly, in many
ways, one of the most characteristic doctrines of Lockean political thought. Locke’s view
of human nature is that we are very much the property-acquiring animal. Aristotle had
said we were political by nature; Locke says we are property-acquiring beings. Our
claims to property derive from our work. The fact that we have expended our labor, our
work, on something gives us a title to it. Labor confers value and is the source of all
values. The state of nature is a condition, he tells us, of communal ownership, what Karl
Marx would have called “primitive communism.” The state of nature is given to all men
in common, Locke says. Parts of it become private property only when we add our labor
to something. Let me read a famous formula from sections 27 and 28. “Every man,”
Locke says, “has property in his person: this no body has any right to but himself.” We
all, in other words, come into the world with a certain private property, property in our
person. No one else has a right to that. “The labour of his body,” Locke continues, “and
the work of his hands, we may say, are properly his for labour being the unquestionable
property of the labourer, no man but he can have a right to what is once joined to, at
least where there is enough, as good left in common for others.” “That labour,” Locke
says, “puts a distinction between him and the common: that added something to them
more than nature, the common mother of all, had done; and so they become his private
right.” So we have moved here, in this one paragraph, from the state of nature, which
he says is common to all, to a condition of rudimentary private property, which we have
in our body, our person, which he says also includes the labor of the body and the work
of the hands, how we expend our activity. That labor, he says, which puts something
between us and the common, becomes the source of ownership of things around us, and
that ownership then, in turn, becomes a right. So they become, he concludes there, his
private right, the source of a right to property.

The natural law, as Locke seems to be saying, dictates a right to private property and it
is to secure that right that governments are ultimately established. In a striking
formulation, Locke tells us that the world was created in order to be cultivated and
improved. Those who work to improve and develop nature, who add to nature through
the labor of their body and the work of their hands, those who develop and improve
nature are the true benefactors of humanity, of humankind. “God gave the world to men
in common,” he says, section 34, “God gave the world to men in common, but since He
gave it to them for their benefit and the greatest conveniences of life that they were
capable to draw from it,” he writes; the world was given for our convenience, he says, to
be drawn from, “it cannot be supposed He meant it should always remain common and
uncultivated.” And then he adds, “He gave it to the use of the industrious and the
rational and not to the fancy or covetousness of the quarrelsome and contentious.” God
gave the world for our improvement of it and therefore, He gave it to the industrious and
the rational. Locke seems to suggest in that very phrase that the state will be a
commercial state, that the Lockean republic or the Lockean state will be a commercial
republic. Think of that.

Ancient political theory, Plato, Aristotle, regarded commerce, regarded property, as in

many ways subordinate to the life of a citizen. Plato would have instituted a kind of
communism of property among the guardians of his Kalipolis. Aristotle thought of the
necessity of private property, but simply as a means to allow a few of those citizens, to
engage in political life. Economy, you might say, was always subordinate to the polity.
Locke turns this ancient and medieval doctrine, as well, on its head in many ways. The
world belongs to the industrious and the rational, those who, through their own efforts,
through their labor and work, increase and enhance the plenty of all. It is only a
relatively short step from John Locke to Adam Smith, in that respect, the great author
of The Wealth of Nations, again, just under a century after Locke’sSecond Treatise. For
Locke–and let me just go on a little more about this–there are no natural limits to
property acquisition. And this is, in a way, the essential point. The introduction of money
or coinage into the state of nature, an issue I’m not going to talk much about here, but
that becomes an important moment in his chapter 5 in his account of the state of nature,
the introduction of money makes unlimited capital accumulation not only possible, but
even a kind of moral duty. It becomes our duty to enhance and work upon the raw
materials of the natural world around us. By enriching ourselves, we unintentionally
work for the benefit of others.

Consider the following remarkable sentence: “A king of a large and fruitful territory in
America,” he says, “feeds, lodges, and is clad worse than a day labourer in England.”
Because, of course, our work, Locke thinks, has enhanced the plenty of all in some way.
The creation of a general plenty, the common wealth–and think of the way in which the
revealing use of that term “common wealth,” the wealth of all–is due, in many ways, to
the emancipation of labor from the previous kinds of moral and political restrictions
imposed upon it by the ancient philosophical, as well as religious, traditions. Labor
becomes, for Locke, his source of all value and our title to common ownership and in a
remarkable rhetorical series of shifts, he makes not nature, but rather human labor and
acquisition the source of property and of unlimited material possessions.

He begins this chapter, chapter 5, with the assertion, think about it, that “God hath
given the world to men in common,” once again suggesting that the original state is one
of common ownership. He then suggests that every person is the owner of their own
bodies and that one acquires a title to things through labor that we have mixed with that
common world. But what starts as a very, very modest title to the objects that we have
worked on, his example is something as simple as picking apples from a tree, the act of
picking gives us a title to the apple, that very simple or rudimentary form of property
soon turns into a full scale explanation of the rise of property and a kind of market
economy in the state of nature. “Labor accounts,” he tells us, “for ten times the amount
of value that is provided by nature alone,” he says at section 37. Our labor enhances the
value of nature ten times. But he then goes on to add very quickly, “I have here rated
the improved land very low in making its product but as one to ten when it is much
nearer a hundred to one.” Our labor advances things a hundred-fold. Shortly later, in
section 43, he says that the value of anything is improved a thousand-fold due to labor.

Again, what began as a fairly rudimentary discussion of the origins of private property at
the beginning of chapter 5, limited by the extent of our use and spoilage, has, by the
end of that same chapter, you might say, morphed into an account of large scale
ownership with considerable inequalities of wealth and possession. By the end of chapter
5, there appears to be almost a direct link between Locke’s dynamic theory of property
in chapter 5 and James Madison’s famous statement in Federalist No. 10. As Madison
says, “the protection of different and unequal faculties of acquiring property is the first
object of Government.” Seems a very Lockean proposition in The Federalist. Locke gives,
in other words, to commerce, to money-making, to acquisitiveness, a kind of pride of
place and a sort of moral status, you might even call it, that it never enjoyed in the
ancient and medieval worlds. The new politics of the Lockean state will no longer be
concerned with glory, honor, thumos, virtue, but Lockean politics will be sober, will be
pedestrian, it will be hedonistic, without sublimity or joy. Locke is the author of the
doctrine that commerce softens manners, that it makes us less warlike, that it makes us
civilized, something that reaches its, you might say, highest expression in the twentieth
chapter or the twentieth book of Montesquieu’s Spirit of the Laws. Commerce does not
require us, for Locke, to spill blood or risk life. It is solid, reliable, thoroughly middle
class in some ways. Locke is, again, the great author of the idea that the task of
government is to protect not just the rights of property, but the right to acquire and
build upon the property that we already own. So I want to end on this note and begin on
Wednesday talking a little bit about what we might call John Locke and the spirit of
capitalism.
Constitutional Government: Locke, Second Treatise (7-
12)
Chapter 1. Locke and the Spirit of Capitalism [00:00:00]
Professor Steven Smith: Today we want to begin with Mr. Locke, Part II. And I said,
at the end of class last time, I want to speak a little bit about Locke and let’s just call it
the spirit of capitalism. And then I want to move into the issue of government by
consent, along with the idea of natural law, perhaps one of Locke’s clearly central,
perhaps most significant contribution to political philosophy, the Doctrine of Consent.
And various problems I wanted to examine with you today, associated with consent and
what it means to consent to government.

But the first five chapters of the Second Treatise, if you take them as a unit, and I think
they should be, they tell us a story. Locke presents us, so to speak, with a kind of
philosophical anthropology that takes us through the state of nature, the state of war,
the creation of private property. And in the fifth chapter particularly, Locke begins as I
mentioned last time with, you might say, with the original condition of nature which
forms a kind of primitive communism to the creation of property through the labor of
one’s body and the work of one’s hands. And by the end of the fifth chapter, we have the
creation of really a kind of full-scale, sophisticated market economy replete with various
inequalities, perhaps even some large-scale inequalities of wealth and property, all
within the state of nature. How did this occur and most importantly for Locke, what
makes this legitimate? What legitimizes this transition, so to speak, from the original
state of nature governed by nothing more than the law of nature to the emergence of
property and in a way, a kind of market economy?

In many ways, what Locke is doing in the first five chapters of the Second Treatise is re-
telling or maybe better re-writing the account of human beginnings that had originally
belonged to scripture. He tells the story of how human beings finding themselves in a
condition of nature with no one or no authority to adjudicate their disputes and governed
only by a natural law, how they are, nevertheless, able to create and enjoy the use of
property created and acquired through their labor and work. Man, he tells us in these
opening chapters, is a property-acquiring animal, the acquisitive animal, even in the
state of nature where there is again nothing but the natural law to govern human
associations and relations with one another. But the problem with the state of nature for
Locke and as to some degree it was for Hobbes as well, is its instability, with no civil
authority to umpire disputes, especially disputes over property. The peaceful enjoyment
and the further acquisition of property, the fruits of one’s labor, are continually
threatened by war and by conflict. How can we ever be secure in our person or property
with no enforcement agency to resolve breaches of the peace, where everybody is, so to
speak, again, the judge and jury and executioner of the natural law? The need for
government arises out of the real need to resolve conflicts or disputes over property
rights. In many respects, this sounds like a very familiar idea that government exists for
the sake of the protection of property rights. It’s sort of kind of a cardinal doctrine of
what I suppose we would call today libertarianism, the philosophy of libertarianism, so
important in a lot of American thought.

Locke is, in many ways, the first writer of my familiarity who claims that–these are his
words–“the great and chief end of man’s uniting into commonwealth is the protection of
their property.” No one prior to Locke, at least to my knowledge, I think, had ever said
in quite such a bold and straightforward way that the purpose of politics was the
protection of property rights. And by property, Locke doesn’t mean simply objects
around us that we have turned into property; but property is rooted, he tells us, first and
foremost in our persons, in our bodies. We all begin the life with a certain rudimentary
property if only in ourselves. Property, for him, implies more than simply real estate, but
everything that encompasses our lives, liberties, and possessions. These are all property
in the original, and in many ways, most revealing sense of the term “property,” that is to
say things proper to us. But Locke continually emphasizes to us the uncertainty of the
state of nature because “life there,” he says, “is full of fears and continual dangers that
lead us to civil association.”

But think, in a way, how different Locke’s account of the transition from the state of
nature to the civil state is from Hobbes’. In many ways, again, as I said, Locke tries to
modify, domesticate, ameliorate Hobbes’s harsh teachings. Hobbes had emphasized the
absolute fearfulness of the state of nature. The state of nature was, for Hobbes, a kind of
state of existential dread, absolute fearfulness. For Locke, however, it is a condition
continually beset by unease and anxiety; to use the word he often uses, inconveniences.
The state of nature is one that consists of continual inconveniences. It is our unease, our
restlessness that is not only a spur to our labor, but is rather the cause of our
insecurities that we have in the state of nature. What is it about Locke, what is it about
his account? I don’t mean what is it about him in some psychological, personal, or
biographical sense, but what is it in his writing that leads him to emphasize the
restlessness, uneasiness, and you might say perpetually anxious character of human
beings in the state of nature? Do we ever hear Plato or Aristotle discussing the fearful or
anxious or restless character of human psychology? I think not. Was this simply a
function of Locke’s nervous disposition? Was the fact that he was simply prone to
reticence and a kind of fearfulness in the same way that Hobbes himself said? Or does
Locke’s emphasis on the uneasiness of our condition in the natural condition really
represent the qualities of a new class, the new commercial classes as it were seeking to
establish their legitimacy?

Locke’s Second Treatise in many respects is a work of middle class or as the Marxist

would like to say, perhaps the bourgeois ascendancy. When Locke writes, as he does,
that the world is intended for the use of the industrious and the rational, who was he
talking about there? Who are the industrious and the rational? He is speaking about a
new middle class ethos whose title to rule rests not on heredity or on tradition; he is not
referring to a customary ruling class, a class whose title to rule comes from its claims to
nobility. But he’s referring to people whose title to rule or potential title to rule rests on
their capacities for hard work, thrift, and opportunity. As a former student of mine who
took this class once said, Locke’s Second Treatise could well be called the Capitalist
Manifesto, or the Anti-Communist Manifesto maybe, one could put it.

But is Lockeanism simply Machiavelli with a human face? Put it that way. Isn’t the rule
of The Prince in Machiavelli the rule of a new leader, a new authority in some sense who
operates outside the parameters of traditional authority? Isn’t Lockeanism like
Machiavelli in some way the ethic of the self-made man with all of the insecurities and
anxieties, restlessness that being self-made represents? Does Lockeanism represent in
some ways the tranquilization of Machiavelli, turning Machiavelli’s fierce warlike ethic,
the ethic of conquest and domination to, in fact, the ethic of work and as it were, the
conquest and domination of nature through labor and our hard work? Is this, again,
simply Machiavellianism with a human face? But in any way, I think, or what I want to
suggest is that Locke’s political philosophy gives expression to what the great German
sociologist Max Weber, you know him, yes, Weber? You read him in Intro Sociology, no?
Okay, well, you will. Weber, his famous book called The Protestant Ethic and the Spirit of
Capitalism, 1904, great work, classic work.

In that work, Weber argued that the capitalist ethic made a high duty, a moral duty,
turned it into a moral calling, a religious calling, the duty of limitless accumulation of
capital and this was, in Weber’s terms, the outgrowth of the Puritan and Calvinist
movements of the sixteenth and seventeenth centuries. For Weber it was the Protestant
reformation that had taken root in the countries of Northern Europe and particularly
where the roots of this capitalistic ethos first developed and again adopted a wholly new
moral attitude to such things as property, property acquisition and moneymaking.
Previously, these things had been deemed to be morally dubious, shunted aside, there’s
something shameful about this. You can certainly see this in the classical writings,
political philosophy that we did. For these early moderns, capital accumulation became a
kind of high calling and moral duty. God gave the world to the rational and the
industrious, not, he says, to the quarrelsome and contentious; not, that is, to those
prideful aristocrats who seek to struggle for domination and power over one another.
What Locke brings into being is, again, a wholly new and revolutionary moral attitude
towards property and property acquisition that again finds its expression, great
expression a century later with Adam Smith. And, of course, from Adam Smith we have
the whole world of modern economics. So, how many of you are potential economics
majors in here? I bet more than one. Without John Locke, there would be no modern
discipline called economics because he was the one, again, a century before Smith and
the rise of the school of political economy, who made the first and decisive move which
was to, in many ways, make respectable and even more than respectable, turn into a
high moral calling and dignity the acquisition of property and turn government, turn
politics into a tool for the protection of property and property rights. That is the
significance in many ways of what Locke has done. I want to talk, probably not today but
next Monday, on some of the in many ways the pros and cons of this immense moral
transformation regarding property and economics that Locke has helped to bring into
being.

Chapter 2. Government by Consent [00:15:34]

But for the rest of today, what I want to focus on is Locke’s idea of consent, the idea
that the origin of all government, or at least all legitimate government is said to derive
from consent, the consent of the governed, an idea that was implicit in some respects in
Hobbes’ theory of the covenant that creates the sovereign, to which Locke gives, in
many ways, much greater pride of place. In chapter 8 of the Second Treatise, Locke
gives us there, he provides us with a kind of hypothetical reconstruction of the origin of
society, of all societies. He writes in section 95, “The only way whereby anyone divests
himself of his natural liberty and puts on the bonds of civil society, is by agreeing with all
others to join and unite in a community for their comfortable, safe, and peaceful living.”
Locke tells us there is something about the legitimate ends of society, the ends that civil
society serves, comfortable, safe, and peaceful living. And he goes on to affirm that
whenever a sufficient number of people have consented to make a single community,
and I quote him again, “they are thereby presently incorporated and make one body
politic,” they make one body politic, “wherein the majority have a right to act and
conclude for the rest.”

That short statement, section 95 of chapter 8, seems to make maybe the first and most
powerful case for democracy. On the basis of that statement, a famous Yale professor of
at least a couple of generations ago, wrote an extremely important book that made John
Locke into a majority rule Democrat. He said in that book that Locke’s philosophy
provides the faith of the majority rule Democrat, largely focusing on sections 95, 96 as
sort of the key to Locke’s political teaching in the Second Treatise. Does anybody know
the name of that man who wrote that book, by any chance? Famous Yale Political
Scientist, back a while ago. Nobody remembers Willmoore Kendall’s book on Locke? You
know it, yes, you were shaking your head. No, you don’t? Okay, whatever. It’s not
important. Not important. I just mention it in passing. But consider the following
sentence, again, also that seems to add to this claim. “For when any number of men by
the consent of every individual make a community, they have thereby made that
community one body with a power to act as one body which is only by the will and
determination of the majority.”

What are we to make of this assertion and in many ways, continued assertion, that in
any community, we are ruled by the majority? To be sure, that idea would have come as
an immense surprise, no doubt, to the King of England to learn that his rule was justified
by the consent of the governed, or if you had done something like crossed the English
Channel and go to the France of Louis XIV of this period, Louis XIV who famously
said L’état c’est moi, ”I am the state,” no doubt would have been very surprised and
probably found laughable the idea that his legitimacy came from the consent of his
subjects. Who had ever thought such a thing, that government derives from the consent
of the majority? Is Locke, in saying that, denying the legitimacy of all government, all
governments that do not derive from the consent of the majority? Is he, on the basis of
this, truly a kind of majority rule Democrat? Does he undercut, for example, something
like Aristotle’s argument, who had seen any number of forms of government as equally
legitimate in many ways, so long as they are moderate and ruled by law? Or is Locke
saying, again, that there is only one form of government, one, again, legitimate or just
form of government, government by the majority? That’s what he appears here to be
saying. I mention the sense appears, Locke is a slippery fish. He’s a slippery writer. He
has a tendency to take back with one hand what he gives with the other, doesn’t he?

The agreement to make one community, as he calls it however, is not the same thing
exactly as establishing a form of government. In many ways, choosing to have a
government, which is what Locke is talking about here in these relevant sections–95 and
96 and so on– choosing to have a government to be one people, so to speak, is in many
ways an act prior to electing any particular form of government to rule you. The Second
Treatise, in some way, specifies only that governments derive their just power from the
consent of the governed. It does not seem to say very explicitly about what form of
government people might wish to consent to. In many ways, the Second Treatise, one
wants to say, is even rather neutral to forms of government. The only form of
government that seems to be absolutely ruled out on Locke’s account is some kind of
absolute monarchy. We cannot cede our rights entirely to another individual. But he
seems to be relatively open to whatever it is people may wish to consent to. The act of
consent alone does not create a government. It is merely an act to form a society. In
many ways, he accepts Pope’s famous dictum, Alexander Pope’s famous dictum: “…for
forms of government let fools contest, whate’re is best administered is best.” In other
words, you have the best thing that administers government that protects your rights to
property and what form it is, whether it’s monarchic, aristocratic, republican or
whatever, is not so important. What is important, and for Locke about the only thing that
is important, is that that form of government receive the consent of the governed.

And, of course, people don’t necessarily have to consent to democracy. If Locke is

democratic in that way, it is only because he’s democratic in a sense that government
derives the authority from consent. It does not necessarily have to be democratical in
form in that respect. But it is this idea of consent–and you will no doubt talk about this
in your sections– it is this idea of government as being by consent that has so much
insinuated itself– I’m not sure that’s the right word – but has so much formed in many
ways the cornerstone of the American regime and American political thought, in many
ways, even more, I would suggest, than his doctrine of property and property rights.
Locke’s Doctrine of Consent is what captured the imagination of the American founders.
When Jefferson wrote about the ends of government, he said the ends of government
are to protect life, liberty, and the pursuit of happiness. He seems to have modified
Locke’s statement about life, liberty, and estate. Why did he do that? We could talk
about that and of course, what is meant by the pursuit of happiness certainly is intended
to entail, among other things, the acquisition of property. But Jefferson in some ways
sort of elevates Locke’s language, Lockean language; it is not simply focused on
property but the pursuit of happiness in many ways however construed consistent with
the rights of others.

But it is Locke’s language of consent that just powers of governments derive from
consent that seems to have most inspired Jefferson and the founders. And through that
doctrine it, of course, had a huge effect on America’s greatest second founder, Abraham
Lincoln. Consider the following passage from Lincoln. This is Lincoln in 1854 in his first
major speech, first most important speech, sometimes called the Peoria Speech, where
he was already debating Stephan A. Douglas. It was for the Senate campaign in Illinois,
appropriate in our time of the year, where they were then arguing, as they would again
for the presidential campaign, argue over slavery and here is what Lincoln writes: “When
the white man governs himself, that is self-government; but when he governs himself,
and also governs another man, that is more than self-government, that is despotism,”
Lincoln says. “My ancient faith,” no doubt thinking about the Declaration and Jefferson’s
ideals, “My ancient faith teaches me that there can be no moral right with one man
making a slave of another.” “What I do say,” Lincoln continues here, “is that no man is
good enough to govern another without that other’s consent.” “This,” he concludes, “is
the leading principle, the sheet anchor of American republicanism.” So there is Abraham
Lincoln referring to the Doctrine of Consent by which he says that no man is good
enough to govern another without that other’s consent, calling this the leading principle
or the sheet anchor of American republicanism.

That statement, as I was suggesting a moment ago, is part of his debate with Douglas
over the issue of slavery and it, in many ways, cut to the core of the meaning of
consent. Douglas also, in some respects, tried to derive his views from an idea of
consent. What Douglas said was that, regarding slavery, he said he didn’t care, it was a
matter of indifference to him, whether people of a particular state or a territory wanted
slavery or didn’t want it. Whatever they wanted, that is to say whatever the majority
consented to, was all right with him. He might prefer it not to be but again, it was what
people consented to, what the majority wanted that would decide the matter. Lincoln,
however, had said that the Doctrine of Consent is not simply a kind of blank check, that
the Doctrine of Consent still implied a set of moral limits or restraints on what a people
might consent to. Consent was inconsistent with slavery, he said, because again, no one
can rule another without that other person’s consent. And in many ways that crucial
debate, so fundamental to American history and politics, grows out of a kind of internal
problem within Locke’s Doctrine of Consent, namely that problem is, what form of
government does it make sense for a majority of people to consent to. Does
government, in other words, by consent mean government by whatever the majority
wants, could be a kind tyranny of the majority, whatever they want? Or does
government by consent entail, again, certain limits and restraints on what majorities can
do? What guarantees does Locke provide, you might ask, that government by consent
will be informed consent or rational consent?

Can people simply consent to anything, to be ruled by any means? This is obviously not
an idle or a purely theoretical question since popular majorities we know in the world
today, popular majorities can choose, on the basis of whim, will, or some other kind of
arbitrary passion. Unless there seems to be some set of moral restraints on what
individuals or majorities can consent to, what is to prevent a majority from acting just as
despotically or just as arbitrarily as a king or any absolute power? That was the question
that Lincoln was raising in his argument against Douglas and his claims about consent.
But this question of restraints or limits on what a people can consent to leads to another
question about the Doctrine of Consent. How is consent conferred? We are citizens of the
oldest democracy in the world, most of us, I guess; maybe not everybody but most
people in this room are citizens of the oldest democracy in the world. Did anyone ask
you for your consent or me, considerably older? Did anyone ask for my consent? The
idea of giving consent to a form of government implies something active, an emphatic
voice but has anyone since the first generation of founders who ratified the Constitution
ever been asked or required to give their consent to it?

You might ask what is Locke’s answer to this problem and it is a problem that he is
aware of and struggles with in that important chapter. His answer turns out to be
something quite different from our views about citizenship and who is a citizen and how
is the consent of the citizen conferred on government. In section 118 he writes, “A child
is born a subject of no country or government.” In other words, he’s saying citizenship is
not conferred by birth; just being born in a place does not make you a citizen of it as
doctrine that we hold. “Every person,” Locke continues, “is born free and equal in many
ways in a kind of state of nature under the authority only of their parents. What
government that person may choose to obey is not a matter of birth, but of choice.” And
again, Locke seems to be making some kind of active principle of choice or decision, a
principle of citizenship and the conferring of consent. And it is only, he says, that when a
child reaches what he calls the age of discretion–18 or 21 or something like that–that
one is obligated to choose, do some sign or mark of agreement to accept the authority of
government. Locke is not altogether clear about how such a sign or a mark is to be
given. One suspects from what he is saying, he maybe referring to some kind of oath or
some kind of pledge, or some kind of civil ceremony where one vows or pledges with
one’s word the acceptance of the form of the state. “Nothing can make any man so,”
Locke writes, that is to say an actual citizen of a state. “Nothing can make any man so,
but his actually entering into it by positive agreement, an express promise and
compact,” he says at section 122. By express promise and compact, “such an express
promise or agreement leaves one,” he says, “perpetually and indispensably obliged to be
and remain unalterably a subject of it,” that is to the state. So once you give your word
or agreement, Locke says, you are perpetually and indispensably obligated to that state.
That’s how seriously Locke takes this idea of consent. It’s something that can only be
entered into at the age of discretion. It must be given consciously, fully, rationally,
presumably in some kind of ceremony and once given, your consent to the form of
government remains, as he says, perpetual. You are bound unalterably, as he puts it.
There’s no such thing as taking it back. It shows you how important Locke puts on the
word, the oath, or some kind of civil agreement. One’s word is one’s bond.

To give voice or consent to government is not an act to be entered into lightly, he says,
or implies but it is a kind of lifetime commitment and it also shows us how different
Locke’s view of the citizen is from ours. In other words, it would seem, for Locke, the
only people who are full citizens in our country would be people who have given their
active consent and the only people who have given their active consent are people who
have undergone what we interestingly call a kind of a naturalization process. Is anyone
here a naturalized citizen, as we call it? Has anyone ever been to a naturalization
process? No, nobody? It’s administered by a judge and you swear allegiance to the new
country? You presumably shed your obligations to your previous country. You swear your
allegiance to this one. That seems to be the kind of thing Locke appears to be talking
about and it’s interesting that, again, the only people in our society, in our country, who
would be full citizens would be naturalized citizens. Again, birth alone does not confer on
you citizenship of any particular country.

But what does that mean for the rest of us, those who have not given their active
consent? Locke is aware that not everyone gives their active consent. That’s why he
introduces another idea for how consent may be given. He talks about what he calls tacit
consent. There are those maybe who have not sworn allegiance or given a civil oath but
who nevertheless can be said to have given their tacit consent to the form of
government and its laws. But how do we give tacit consent? Tacit consent is a strange
word because consent implies something active and open, where tacit, think of Locke’s
taciturnity; tacit implies something closed or concealed. How is tacit consent given?
That’s a problem you can see Locke working on. To some degree, he says, anyone who
simply enjoys the protection of the law, the security of property and person under the
law can be said to have given their tacit consent. They give it, so to speak, ex silentio.
Even their silence confers consent. But how do we really know? You could say, how do
we know that silence confers tacit consent and silence is not simply silence? An example
I think of, for example, if you go to a wedding ceremony, or I guess in some wedding
ceremonies, the justice or the minister, whoever, says–what is the phrase about
whoever hold your peace? If anybody has any question about this ceremony, speak now
or forever hold your peace and of course everybody–except in the movies, of course–
everybody’s always silent. Nobody says it so their consent, their tacit consent is given;
their silence from their silence to that question, their tacit consent is given. But again,
that would be one way but again, how do we know when silence confers tacit consent or
silence is simply that, silence? It’s an issue that Locke struggles with and to be sure
never fully, or I think satisfactorily, resolves. Maybe you will resolve it. Maybe you will
resolve it in your next paper, if you have the opportunity to write about consent and the
difference between the expressed and tacit forms for citizenship. Also, the question
being–which Locke alludes to but does not fully or does not quite answer– is there any
difference in privileges, in civil privileges between citizens how have given their
expressed consent and those who have only been said to tacitly consent to the form of
government? Does he suggest that one class of citizens has greater rights or greater
responsibilities than the other? You might look into that question too and see if you think
Locke suggests any differences on that.

Chapter 3. The Lockean Limited Government [00:40:26]

Locke — to go back and just kind of begin to wrap this up for the day — Locke does not
appear to endorse any particular form of government in the Second Treatise. The task of
forming the government will fall to the decision of the majority but again, what form the
majority will decide remains, to some degree, an open question. What gives Locke or
Lockeanism its distinctive tone, its distinctive voice is the claim that whatever kind of
government a majority decides upon, it must be one that limits the power of the
sovereign. You cannot–and in this respect, I think Locke is far closer to Lincoln than he
was to Stephan A. Douglas – consent does not simply mean consent to arbitrary rule; it
does not mean consent for the power of the sovereign to do anything. Locke’s theory of
constitutional government is a theory of restrained government, of constitutional
restraints, of rule by law. Locke gives, in many ways, the importance of law and
constitutional restraint; what we would today call, I suppose, limited government. He
gives this far greater expression, far more powerful expression than any of his
predecessors; certainly not Hobbes, who had attributed absolute power to government
or even to Aristotle who, in many ways, shares some resemblances with Locke, but even
Aristotle had severe doubts about rule of law.

Locke is absolutely confident that limited government, restraints on power–whether that

power be from the one, the few or the many–restraints on power is the only kind of
government that can be trusted to protect rights. And in one of the few jokes that
appears in the Second Treatise – you might have missed it because Locke is a subtle
jokester; he’s not like Machiavelli or Plato. Locke is a very understated jokester; he was
an Englishman after all. He writes in section 93, referring to Hobbes, but you’ll also see
his wonderful animal references. He writes: “If men quitting the state of nature entered
into society, they agreed that all of them but one should be under the restraint of laws,”
thinking about Hobbes’sLeviathan. “But that he should still retain all the liberty of the
state of nature increased with power and made licentious by impunity.” He goes on to
say, “This is to think that men are so foolish that they take care to avoid what mischiefs
be done to them by polecats and foxes but are content, nay think it safety to be
devoured by lions,” the lion being the Leviathan sovereign; whereas in the Lockean state
of nature, human beings are like polecats and foxes. They’re noxious creatures, he says,
but they’re not truly dangerous to you and when one leaves the state of nature to enter
civil society, one is certainly not doing so to empower a sovereign with lion-like powers
over you, as he says. Who would do this? It’s better to have some kind of theory of
restrained government, a limited government to do this for you.

I’m going to end on this note. What I want to do on Monday, when I wrap up Locke, is to
continue with his doctrine of limited government because it turns out there is a very
important exception to it. There is a kind of escape clause and I would encourage you as
you read it to pay particular attention to chapter 14 of the Second Treatise, his chapter
on what he calls prerogative power, the doctrine that has very, very important and grave
implications for our politics today. It’s a very important chapter and I want us to
continue this and then talk a little bit about the pros and cons of Lockean political
philosophy.

Constitutional Government: Locke, Second Treatise (13-

19)
Chapter 1. The Role of Executive Power in Locke’s Theory of Government
[00:00:00]
Professor Steven Smith: I want to look at two sets of issues. I want to in, a way,
conclude my interpretation, my reading of the Second Treatise, by focusing on the role
of executive power in Locke’s theory of government, Locke’s theory of the constitutional
state, particularly focusing on the role of the executive, vis-a-vis the legislative branch of
government, and then I want to turn a little more speculatively to thinking about Locke
and the American regime and the current state of political philosophy, modern
contemporary American political philosophy. But let me start first by going back and
sticking with the Second Treatise by talking a little bit about the role of legislative and
executive power.

The last time, I think, I was concluding by arguing that Locke doesn’t endorse
necessarily one particular form of government from any other. He is an advocate of what
we have come to call limited government, of constitutional government. There is that
important passage where he ridicules the Hobbesian sovereign as a lion and tells us we
did not enter into the social compact to be devoured by lions. He says, the form of
government must be limited although he’s relatively open or at least non-committal,
agnostic you might say, as to what particular form that government may take. One
feature of this form of government that he thinks is very important, is that it must in
some sense embody a separation of powers, powers must be made to check one
another, what he calls in the book the subordination of powers. This is Locke’s doctrine
and you will see it there. We often associate it with Montesquieu or sometimes with the
federalist authors but, in fact, Locke himself is a strong advocate of what he calls the
subordination or separation of powers, not exactly the same as we’ll see between our
understanding of executive legislative and judicial, but nevertheless a separation
nonetheless.

However, in the first instance, Locke emphasizes and in fact he continually affirms
nevertheless the primacy of legislative authority. In England, in the England at his time
and even today, that means a doctrine of what is called parliamentary supremacy but he
says that the first and fundamental positive law of all constitutions is in establishing that
of the legislative power. The first act, after the completion of the social contract, he
says, is establishing the legislative power. It is the lawmaking authority of government
that is supreme, he wishes to emphasize. This seems to push Locke, you might, say
more in the small ‘d’ democratic direction. It is not so much executive power, the power
of a prince, but rather the legislature, the parliament that is supreme. There is nothing
more important, in Locke’s theory of constitutional government, than the existence of
what he continually refers to as settled or known laws, settled laws that serve against
arbitrary rule. In many ways, the purpose of government for Locke is much less to offset
the dangers of returning to an anarchic state of nature as it was for Hobbes than to
prevent the possibility of the emergence of tyrannical or despotic power, tyrannical or
despotic sovereign, and of course, Locke’s writing is very much bound up with the big
and major constitutional crisis of his time leading to the overthrow and expulsion of a
king, James II.

Yet in many ways, even though Locke is the great advocate of legislative supremacy, he
obviously cannot and does not wish to dispense altogether with the role of executive
power. He often treats the executive, whether that be in the form of a prince, a monarch
or perhaps even a body in a cabinet of chief officers as it were. He treats them often
simply as if they were an agent of the legislative or of the legislature. The purpose of the
executive, he sometimes seems to write, is merely that of carrying out the will of the
legislature. In Locke’s language, “the executive power is ministerial and subordinate to
the legislature,” section 153, I believe. The executive, again, on some aspects of Locke’s
writing seems to be little more than a cipher in comparison to the doctrine of legislative
supremacy.

And yet, Locke here is not altogether consistent, one has to say, because he
understands in every community there is a need for a distinctive branch of government
dealing with matters of war and peace. Locke calls this the federative power. Every
community, he says, like Hobbes, is to every other community what every individual is
to every other individual in the state of nature and a distinctive federative or war-making
power within the government is necessary for dealing with matters of international
conflict, conflict between states. And in a remarkable passage, Locke notes that this
power, he says, cannot be bound by antecedent standing positive laws but it must be
left to, quote, “the prudence and wisdom of those whose hands it is in to be managed for
the public good.” In other words, Locke seems to suggest that this particular kind, this
branch of government, this federative branch which falls to some degree under the
executive, must have a certain latitude even apart from the law that relies, he says, on
the prudence and wisdom of those whose hands it is in to manage it for the public good.

In other words, matters of war and peace cannot be left to the legislature or to standing
laws, as he calls them, alone but requires the intervention of strong leaders, what he
calls in an absolutely stunning passage god-like princes, section–if you don’t believe me,
section 166. Locke’s reference here to god-like princes seems to recall Machiavelli in
many ways, Machiavelli’s talk of armed prophets. It is necessary, in extreme situations,
for such princes to call on their prerogative power. It is impossible, Locke writes, to
foresee and so by laws to provide for all the accidents and necessities that may concern
the public and that during, in other words, contingencies or emergency situations the
executive must be empowered with this prerogative power to act for the good of the
community. For this reason it seems, the executive is not simply a tool or an agent of
the legislature but he says, again, must have the power to act according to discretion,
that is to say, according to his own discretion for the public good without the prescription
of law, those are Locke’s own words. How to balance his argument for constitutional
government and legislative supremacy with this doctrine of prerogative power and what
seems to be a kind of power of what he calls in no uncertain term the god-like princes
and their need to exercise this power? Locke’s prerogative is, in many ways, the result of
simply the inability of law to foresee all possible circumstances, all possible
contingencies. That’s an argument that goes as far back as Aristotle, we’ve seen.

Our inability to make rules that can apply to all possible events, makes it necessary to
leave some discretionary power in the hands of the executive to act for the public safety.
One of the examples that Locke gives of the use of this power is in fact a domestic, not
an international issue, which is to say, in the case of a fire in a city it is sometimes
necessary, he says, in his day for the fire department to tear down the house of an
innocent person to prevent the fire from spreading to other houses. This is acting for the
public good of the community, even while in some ways it’s clearly a violation of rights of
property and so on. He understands this as a piece of prerogative power acting for the
public good. In fact, the example is not so far fetched. Think today for example about
arguments we have today. Even in Connecticut, there’s a big argument going on about
the right of what’s called “eminent domain,” the right of the government to absorb or to
take over private properties whenever, usually for things like schools or airports but also
for general improvement when it is thought it will enhance the public good. There’s a big
debate going on right now out in New London and in Brooklyn also with the argument
about the creation of some civic center, some sports arena that will require the
demolition of certain neighborhood houses. And there’s a big debate about this eminent
domain. What is that, but in a way Locke’s example of prerogative power, acting, doing
something that is somehow said to be for the public good but that represents some kind
of extra constitutional power?

But the question for Locke, as for any constitutional lawyer, is what are the limits of this
prerogative power? What check, if any, is there on this power to prevent their abuse?
Well, Locke doesn’t exactly say. Yes. Right. He doesn’t exactly say. He raises this
question to be sure, of fundamental importance for constitutional government. Does
executive authority, he asked us, extend to all things even or especially in times of war?
Think about the debates that are going on now about detainees at Guantanamo or the
issues of domestic spying when it comes to issues of the war on terror. Are these
examples of prerogative power, that is to say, the executive acting outside the limits or
the bounds of constitutional authority for the sake of protecting the public good or are
these examples of kind of political absolutism? Is the invocation of this power, in some
ways, going down the slippery slope to despotism and absolutism? I will leave it to you
or your sections to try to discuss these matters but Locke himself praises those who he
calls the wisest and best princes of England as being those who have exercised the
largest prerogative on behalf of the public good. This is beginning to sound more and
more in respects like Machiavelli than the advocate of, again, limited government. This
power comes into play, he says, especially during times of national crisis or emergency
when it is necessary to act for the public safety in some ways. And again, this seems to
have special resonance for us today as we face issues like states of emergency and
states of exception. There are in fact political theorists, one name comes to mind, a
twentieth-century German legal philosopher by the name of Carl Schmitt who argued
that the state of emergency or the exceptional situation is the essence of politics and
that the person or body who has the power to declare the exception is none other than
the sovereign. So from Schmitt’s point of view you might say this idea of prerogative is a
kind of extra constitutional power that the statesman must of necessity utilize when
ordinary constitutional operations, like the rule of law, prove to be inadequate.

But consider another example if you like, that prerogative power, about prerogative
powers that maybe granted by the Constitution. Consider Lincoln’s famous suspension
of habeas corpus during the Civil War. Lincoln, interestingly, did not take this
extraordinary step by appealing to an extra-constitutional power that obtains in times of
crisis. Rather, Lincoln argued quite forcefully that this sort of prerogative power is
already deeply embedded within the structure of constitutional government. He cites
the Constitution when it came to the suspension of habeas corpus.
The Constitutionwrites, “The privilege of the writ of habeas corpus shall not be
suspended unless when in cases of rebellion or invasion the public safety requires it.” In
other words, the Constitution itself seems to allow for this extraordinary kind of action at
least in cases of rebellion or invasion when it says the public safety requires it.
The Constitution seems to embody within itself, our constitution that is, this Lockean
power of prerogative that comes into effect or can be legitimately exercised in times of
rebellion or invasion.

Are we living in that kind of age now, not rebellion perhaps but invasion? Well, think
about that again. Are these arguments applicable to our situation today, in some sense,
when it comes to debates about the extent of executive power to embark on these
extraordinary measures? And yet at the same time, Locke is aware clearly of the
potential abuse of this kind of prerogative. He asks, who will judge, who can judge
whether the discretion of the executive is being used for the public safety or the public
good or whether it is simply a kind of usurpation of power? In these moments of high
constitutional crisis between conflicting powers of government, in such cases, Locke says
there shall be no judge on earth. He says the people have no other remedy in this but to
appeal to Heaven. This is in section 168. How much is contained in that term “appeal to
Heaven?” What does Locke mean in terms of high constitutional crisis when he says
there is no judge on earth, the people must appeal to Heaven? Does that mean they
should fall down on their knees and begin to pray, what they should do? Unlikely. By an
appeal to Heaven, Locke means the people’s right to dissolve their government. He
raises this question at the very end of the book. When a conflict between the people or
their representatives and the executive becomes so great that the very conditions of
social trust have been dissolved, who will be judge? And he answers emphatically: the
people will be judge. Locke affirms here a right of revolution. An appeal to Heaven, or
what he calls an appeal to Heaven really refers to an appeal to arms, to rebellion, and
the need to create a new social covenant. Locke, you can see, is attempting to hold
together a belief in the sanctity of law and the necessity for prerogative that may
sometimes have to circumvent the rules of law. Are these two doctrines incompatible? I
think in many respects or at least in some respects they are. Can the prerogative power
of the executive be in a way constitutionalized so that it does not threaten the liberty of
its own citizens? Locke alerts us to this timeless as well as this very timely problem.

One of the best sources for thinking about many of these constitutional issues today,
regarding privacy rights and other kinds of citizen rights, can be found in, I would say
the last five chapters or so of Locke’s Second Treatise. I can’t think of a better source.
So in the end Locke’s appeal to Heaven or Locke says the people have an appeal to
Heaven, that is to say an appeal to arms, an appeal to revolution, suggests that at the
end of the day Locke was a revolutionary but I would say also a sort of cautious and
moderate one, if this is not a complete contradiction in terms. I won’t go through
chapter 19, the famous chapter on revolution in full, to talk about the conditions under
which he believed the people can rightfully appeal to Heaven, as it were, but Locke’s
doctrine of consent and legislative supremacy, this should make him in many ways a
hero to Democrats, to radical Democrats. His beliefs about limited government, the
rights of property should make him a hero to in some ways constitutional conservatives
and even libertarians. In the end, I think Locke was neither or both. Like all of the great
thinkers in some ways, he defines–he defies, excuse me, simple classification but there
is no doubt that Locke gave the modern constitutional state its definitive form of
expression. And the problems of our state, the problems, the legal, the constitutional
and political problems that we experience are very much problems rooted in the
philosophy of John Locke and are unthinkable without the influence of Locke.

So that takes me to a theme that I want to talk about for a little while, which is Locke’s
America, John Locke’s America. No one who reads Locke, even superficially, and I would
not accuse anyone here of being a superficial reader, after all, but no one can fail to be
impressed by the harmony, in many ways, between Locke’s writings and those of the
American Republic that he helped to found. His conception of natural law, rights,
government by consent, the right to revolution and all are all part of the cornerstone of
our founding documents. To some degree, as I’ve just been suggesting, a judgment on
America is very much a judgment on the philosophy of Locke and vice versa. In many
ways, if anyone is, I think Locke has the title to be considered America’s philosopher-
king. So how should we think of Locke after more or less three centuries of consistent
Lockean rule? How should we think of Locke? For many years and for many people, even
today, the affinity, the affiliation between Locke and America has been regarded in a
largely although not wholly, largely positive light. For many historians and political
theorists, our stability, our system of limited government, our market economy has been
the result of a sort of broad consensus over Lockean principles, over Lockean first
principles.

But for many other readers of American history, this relationship has been seen as more
problematic. In the 1950s, a book written by a famous political theorist and historian,
named Louis Hartz, a book called The Liberal Tradition in America, complained of
America’s, what he called “irrational Lockeanism.” That was Hartz’s line, that was Hartz’s
quote, “irrational Lockeanism,” by which he meant a kind of closed commitment to
Lockean principles and ideals that shut off all other political alternatives and possibilities.
Hartz was someone very much interested in the question, as many political theorists
have been since, why has there been no socialism in America, why did America not
evolve or develop along European lines with social democratic parties and socialist
parties like the English Labor Party and other kinds of labor movements. And Hartz’s
argument was that we were sort of arrested in this Lockean phase of development, what
he called our irrational Lockeanism that closed off in many ways other principles. And for
still other thinkers, more or less on the left, Locke legitimized what was called an ethic of
what was called “possessive individualism,” particularly Locke’s focus on property and
the rights of private property that focuses entirely on market relations or puts the
market values ahead of all other things. And for still others, in many ways more
recently, thinkers of a more sort of communitarian direction or bent, Locke’s emphasis
upon rights and the protection, that government should protect natural or certain
unalienable rights, suggests a purely or overly legalistic conception of politics that has no
language for talking about the common good, the public good or other sort of collective
goods or benefit.

So my point is that Locke’s influence has not been altogether accepted by everyone.
There has been much ground for criticism of this peculiar affinity between Lockeanism
and America. But today, I would say that Locke’s theory of liberalism or Locke’s theory
of limited government, constitutional government, is confronted by another alternative
that, in many ways, has deep roots in the very tradition which Locke himself—the very
liberal tradition in many ways of which Locke himself is the founder. And I am referring,
in particular, to a book that many of you will read at some point in your Yale experience,
a book, widely read and widely acclaimed book by a recently deceased political
philosopher by the name of John Rawls who wrote a book in 1973 called A Theory of
Justice. In many ways, Rawls’s book was an attempt to update the liberal theory of the
state. He invokes the idea of a state of nature, an original condition, as he calls it, a
theory of rights although he does so in many ways through the techniques of
contemporary philosophy and game theory and Rawls’s book is probably the single most
important contribution to Anglo-American political philosophy in the last generation. It is
a book that situates itself within the liberal tradition beginning with Locke, developed by
people like Immanuel Kant and John Stuart Mill in which Rawls himself hoped to, in
many ways, bring to completion in his book. A theory of justice, as he calls it, stands or
falls on its theory of rights from which all else is derived. And what I want to do for a few
minutes is to contrast Rawls’s general theory, so powerful and influential today, from
that of John Locke’s, the original founder of the liberal theory of the state, and see how
they have diverged.

Chapter 2. Contrasting Rawls’s Theory of Justice with Locke’s Theory of

Liberalism [00:27:41]
Consider the following propositions, if you will. Here is John Locke, section 27 of
the Second Treatise. “Every man has property in his own person. This nobody has any
right to but himself and where there is property,” he writes, “there can be justice and
injustice.” Here is John Rawls, one of the opening pages of his Theory of Justice. “Each
person,” Rawls writes, “possesses an inviolability founded on justice that even the
welfare of society as a whole cannot override. For this reason,” he continues, “justice
denies that the loss of freedom for some is made right by a greater good shared to
others.” Okay. So far, so good, in other words. Both of them present their theories of
justice as justified in terms of the liberal principles of equality, freedom and the sanctity
of the individual and individual rights. Both regard the purpose of government, in many
ways, as securing the conditions of justice as deriving from the consent, or the informed
consent, of the governed but both it seems to me go on to differ profoundly about the
source of rights and therefore the role that government has in securing the conditions of
justice. Let me explain a little bit more what I mean.
For Locke, going back to chapter 5 of the Second Treatise, rights derived from a theory
of self-ownership. According to his view, you will remember, everybody has a property in
his or her own person. That is to say, no one has a claim on our bodies other than
ourselves. It is on the rock of self-ownership, the fact that we have property in
ourselves, it is on the rock of self-ownership that Locke builds his edifice of natural
rights, justice, and limited government. To put it in a slightly different way perhaps, a
person has an identity, what we might call today a moral personality or an identity by
the fact that we alone are responsible for making ourselves. He uses this metaphor of
the work of the body and the labor of our hands but we are literally the products of our
own making. We create ourselves through our activity and our most characteristic
activity is our work. Locke’s fundamental doctrine is that the world is the product of our
own free creativity, not nature but the self, the individual is the source of all value for
Locke. It is this self, the I, the me, the ego that is the unique source of rights and the
task of government is to secure the conditions of our property in the broadest sense of
the term, namely, everything that is proper to us.

Now, using that as a sort of shorthand, contrast this to Rawls’s idea. Rawls adds to his
idea of justice something that he calls the “difference principle,” the DP as it’s sometimes
referred to in the literature on Rawls. What is the difference principle? This principle
maintains that our natural endowments, our talents, our abilities, our family
backgrounds, our history, our unique histories, our place, so to speak, in the social
hierarchy, all of these things are from a moral point of view something completely
arbitrary. None of these are ours in any strong sense of the term. They do not belong to
us but are the result of a more or less kind of random or arbitrary genetic lottery or
social lottery of which I or you happen to be the unique beneficiaries. The result of this,
in other words, is that no longer can I be regarded as the sole proprietor of my assets or
the unique recipient of the advantages or disadvantages I may accrue from them.
Fortune, luck, Machiavellian fortuna, in that way, is utterly arbitrary and therefore, Rawls
concludes, I should not be regarded as the possessor but merely the recipient of what
talents, capacities and abilities that I may, again, purely arbitrarily happen to possess.

So what does that mean in terms of social policy or theory of government? The result of
Rawls’s difference principle and its fundamental difference with that of John Locke could
not be more striking from this point of view. The Lockean theory of justice, broadly
speaking, supports a meritocracy sometimes referred to as “equality of opportunity,”
that is, what a person does with his or her natural assets belongs exclusively to them,
the right to rise or fall belongs exclusively to them. No one has the moral right to
interfere with the products of our labor, the products of–which may also include not just
in a primitive sense what we do with our hands and bodies but what we do with our
intelligence and our natural endowments. For Rawls, again, on the other hand, our
endowments are never really our own to begin with. They are part of a common or
collective possession to be shared by society as a whole, the capacities of hard work,
ambition, intelligence and just good luck that, for example, got you to a place like Yale,
on Rawls’s account, do not really belong to you or at least the fruits of those ambitions
and intelligence and good luck do not belong to you.

Again they are somewhat arbitrary as a result of upbringing and genetics. They’re not
yours or mine, in any strong sense of the term, but rather, a collective possession that
can be or should be the fruits of which distributed to society as a whole. Consider the
following passage from Rawls. “The difference principle,” he writes, “represents in effect
an agreement to regard the distribution of natural talents as a common asset and to
share in the benefits of this distribution whatever it turns out to be.” Your intelligence or
your drive or your endowments are, again, what he calls a collective asset. Think about
that. And it is this conception of common assets that underwrites Rawls’s theory of
distributive justice and the welfare state, just as Locke’s theory of self-ownership
justifies his conception of limited government in the constitutional state. According to
Rawls, again, justice requires that social arrangements be structured for the benefits of
the least advantaged in the genetic lottery of society. His thought experiment that he
calls “the original condition” specifies that nobody would know in advance in this
condition what their particular endowment intellectually, in many other ways, would be.
Therefore, every individual would, in contracting with the whole, would agree to share
equally in the benefits of this, as it were, genetic lottery. So redistributing our common
assets does not violate, on Rawls’s account, the sanctity of the individual because again
the fruits of our labor were never really ours to begin with. Unlike Locke, whose theory
of self-ownership provides a moral justification for the individual, for the self, for our
moral personality, Rawls’s difference principle maintains that we never again belong to
ourselves at all. We never really have ownership in ourselves but are always part of a
larger social “we,” a social collective, a collective consciousness whose common assets
can be redistributed for the benefit of the whole.

Locke and Rawls, the point I’m trying to make is, they represent two radically different
visions of the liberal state, one broadly libertarian, the other broadly welfarist, one
emphasizing liberty, the other emphasizing equality. Interestingly, again, this transition,
this evolution represents a change which has gone on within in many ways the liberal
tradition itself. Unlike some of these other critics, Rawls does not come to be claiming
from a tradition outside of liberalism but to be developing certain arguments from within
the liberal tradition and yet has moved in a way clearly very different from its Lockean
formulation. Both of these views, again, they begin from common premises but move in
very different directions. Locke’s theory of self-ownership regards the political
community in largely negative terms as protecting our antecedent individual selves and
individual rights. Rawls’s theory of common assets regards the community in a far more
positive sense as taking an active role in reshaping and redistributing the products of our
individual endeavors for the common interests. The question for you, just like the
question for any of us, is which of these two views is more valid or which of the two
strikes you as more powerful or plausible?

My own view, and I loathe to editorialize, but my own view is far closer to American
theory, to Locke’s theory, which I think–than Rawls’s. The Declaration of Independence,
the charter of American liberty, states that each individual is endowed with unalienable
rights among which are life, liberty, the pursuit of happiness. The very indeterminacy of
the last phrase, the pursuit of happiness, with its emphasis upon the individual’s right to
determine happiness for themselves, suggests a form of government that allows for
ample diversity for our natural talents and abilities and although
the Declaration certainly intends that the establishment of justice is one of the first tasks
of government, nowhere does it imply that this requires the wholesale redistribution of
our individual goods and assets. And second, although Rawls is clearly attractive, excuse
me, Rawls is clearly attentive to the moral ills of inequality and we will turn to that
problem emphatically on Wednesday when we look at Jean-Jacques Rousseau’s Essay on
Inequality. There has never been a more powerful, passionate and persuasive critic of
the ills of inequality than Jean-Jacques Rousseau but while Rawls is certainly attentive to
the moral ills of inequality, he seems very naïve about the mechanisms, the actual
political mechanisms, by which inequalities will be rectified. Rawls wants government to
work for the benefit of the least advantaged but this will require the extensive and often
arbitrary use of judicial power to determine who has a right to what, far in excess of the
powers of the court. The result would be, I think if we follow Rawls’s teachings to their
letter, the result would be not a class of philosopher-kings, but rather a class of chief
justices endowed with the power to rearrange and redistribute our collective assets for
the sake of achieving the maximum degree of social equality. It is no surprise that the
warmest reception that Rawls’s writing gets today is in the schools of law, is in the law
schools where he has had an enormous influence on shaping the education of the current
and the next generation of lawyers, judges and possibly chief justices who may be
looking to again, looking not to the Constitution but to Rawls’s theory of justice as a
litmus or a tool for bringing about social redistribution.
Chapter 3. Locke, the American Regime and the Current State of Political
Philosophy [00:42:17]
So, I leave you on that sobering note but a return to Locke such as it is, even if such a
return were possible, is by no means a panacea to what ails us. I am not suggesting for
a moment that Locke is some kind of cure all. Some historians, let me just mention
again, Louis Hartz was but the most famous, treat America as a nation uniquely built
upon Lockean foundations. America, he believed, remained something of a Lockean
remnant–a Lockean, yeah, remnant, fossil in some ways, in a world increasingly
governed by more radical forms of modernity. In fact, it has been our sort of stubborn
Lockeanism that has, in many ways, prevented the kinds of extreme ideological
polarization and conflict that one sees throughout much of the nineteenth and twentieth
centuries. But Locke’s effort to build a kind of modern republican government on the low
but solid foundations of self-interest and self-ownership and the desire for comfortable
preservation could not help but generate its own forms of dissatisfaction.

Can a regime, dedicated to the pursuit of happiness or to the protection of property ever
satisfy the deepest longings of the human soul? Can a regime, devoted to the rational
accumulation of property answer those higher order needs or higher order virtues, like
honor, nobility and sacrifice? Can a regime, devoted to the avoidance of pain, discomfort
and anxiety, produce anything more than contemporary forms of Epicureanism and
Nihilism? In any case, I’m suggesting no more than any other land could America
insulate itself from the great heights as well as the great depths of later forms of
modernity. America, as a former teacher of mine once said, is the land where the many
facets, the many faces of modernity are working themselves out. We are but a moment
in the kind of comprehensive self-dissatisfaction that is modernity so that a return to
Lockeanism, in many ways, is not so much a cure for the pathologies of modernity. I
would suggest that those pathologies are themselves already rooted in the pathologies
of Locke. I will end on that sober note and encourage you to take Rousseau’s advice
about loving one’s country seriously on Tuesday.