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A paradox in Locke's Theory of Natural Rights1
Published online by Cambridge University Press: 01 September 1969
Extract
There are certain recurring objections to Locke's theory of legitimate government and the conception of natural rights on which it is based. These objections generally take the form of showing that most of Locke's claims in the Second Treatise stand largely as ad hoc assertions, defended—if at all—not by philosophical argumentation but by appeals to theology or intuition. These criticisms might be called external criticisms of Locke's theory because they focus, not upon the coherence of the theory or the perplexities which prompted Locke to adopt it, but rather upon the justifications (or lack of them) for that theory. Important as these criticisms are to an ultimate evaluation of Locke's success, my purpose here is neither to reiterate them nor to defend Locke against them. Rather I want to develop a purely internal criticism of his view. For I shall argue that upon any acceptable interpretation of at least one of Locke's central natural rights claims, this claim will not be able to perform the crucial task envisioned for it by Locke—namely, provide a key premise for the moral justification for passing from a pre-civil society to a civil society that is responsible to its citizens.
- Type
- Articles
- Information
- Dialogue: Canadian Philosophical Review / Revue canadienne de philosophie , Volume 8 , Issue 2 , September 1969 , pp. 256 - 271
- Copyright
- Copyright © Canadian Philosophical Association 1969
References
2 All references to Locke's Second Treatise are from Peter Laslett's edition of Two Treatises of Government (Cambridge, 1960). All citations are followed by a number indicating the paragraph from which the material was drawn. In quoting from Locke, I have taken liberties with spelling, capitalization and punctuation in so far as these changes do not affect the sense.
3 For Locke the terms “power” and “right” may be used interchangeably. When Locke speaks of the powers of government, it is clear that he is not interested merely in what governments are able to do but in what they may legitimately do.
4 “Two Concepts of Rules,” The Philosophical Review, LXIV (1955), pp. 3–32. See also Herbert Morris' article “Punishment for Thoughts,” The Monist, 49 (1965). PP- 342–376.
5 See also Locke's Essays on the Law of Nature, translated and edited by W. von Leyden (Oxford, 1954). Locke is by no means consistent on this, however, as the remark from Paragraph 124 (quoted above) reveals.
6 A careful and persuasive attempt to bring this kind of irrationality to light is to be found in many of the writings of John Rawls. Especially important are his essays “Justice as Fairness” (Philosophy, Politics and Society, edited by P. Laslett and W. G. Runciman, Second Series, Oxford, 1964, pp. 132–157) and “Two Concepts of Rules” (op. cit.). In the latter essay Rawls contrasts punishment with a practice he calls “tellishment.” Tellishment, a practice which Rawls argues would be irrational to adopt, is in many important respects like Locke's natural punishment.
7 Locke also has some boring replies. His chief opponent is monarchical theory like that of Filmer, and thus he is often content to reply to an objection that it would hold for such a monarchist as well. Since such replies are of little interest to the contemporary reader, I have not dwelled on them.
8 “Natural Rights,” in Philosophy, Politics and Society, edited by Peter Laslett, First Series, Oxford, 1963, p. 35.
9 “Every man, that hath any possession, or enjoyment, of any part of the dominions of any government, doth thereby give his tacit consent, and is as far forth obligated to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs forever, or a lodging only for a week; or whether it be barely travelling freely on the highway” (119).
10 Punishment, for example, can take place in a family which, like government, manifests an authoritative hierarchy. We can thus speak of the father punishing his son but not of the son punishing the father (no matter how much he harms the father). So my point, remember, is not that punishment can in no sense exist outside of government. Rather it is that the kinds of punishment that can so exist are not plausible candidates for a right which, when entrusted, creates civil punishment.
11 At Paragraph 57, Locke says something quite similar. But his commitment to an extreme utilitarianism keeps him from appreciating the importance of what he has said. Like many utilitarians, he fails to see that freedom, justice, and the common good are different and often competing social values. Thus he can say in this same paragraph that an interference with freedom is not really an interference with freedom if it promotes the common good. For “that ill deserves the name of confinement which hedges us in only from bogs and precipices.”
12 I. Kant, The Metaphysical Elements of Justice, translated by John Ladd, Library of Liberal Arts, 1965, pp. 80–81, 76, 70–71. I have changed Ladd's “have his own right” to “claim his own right,” since it is clear that Kant is here denying that we really do have such a natural right. Indeed (p. 43) Kant claims that there is only one natural right: freedom. In his Perpetual Peace Kant uses a similar argument to ridicule the idea of just or properly punitive wars, and argues that international justice will be possible only under a system of international law. For a more detailed treatment of Kant's views on coercion (both civil and international) see the final chapter of my forthcoming book: Kant: The Philosophy of Right (Macmillan).