Freeman

ARTICLE

Did Locke Really Justify Limited Government?

FEBRUARY 24, 2010 by JOSEPH R. STROMBERG

John Locke (1632–1704) was a physician, statesman, and political philosopher, filling that last office in a dry, “empirical,” and militantly antipoetic English mode. Locke’s stock has risen and fallen over the years. Contemporaries called him a Socinian (a precursor of Unitarianism), a deist, a Muslim, and an opportunist. Later critics have seen Locke as the Whig Oligarchy’s spokesman (Basil Willey), abandoning the authentic natural law (John Wild), and leaving behind “right” and “left” Lockeans stressing either property or its labor justification (Christopher Hill).

Locke’s fame rests on his Two Treatises of Government. Thanks to Peter Laslett’s introduction (1960), we know Locke wrote his First Treatise answering Sir Robert Filmer’s Patriarcha (1680) at a time when his Second Treatise was well underway. The Second Treatise defended (prospectively) the conservative revolution of 1688. Its argument owed much to a Calvinist political tradition in which certain political authorities oppose other authorities that are breaking the social compact. Seeking to justify government by consent regardless of historical specifics, Locke deployed a version of natural law.

The point of the rights adduced—labor-based property and so on—was to buttress an argument that the king could not (should not) expropriate English gentlemen–a rather meager result, unless of course all their rights eventually “trickle down” to the rest of us. To reach his goal Locke undermined the natural-law assumption that God gave the earth to men “in common.” First, Locke set up each individual as a self-owner, rightfully appropriating natural resources to sustain life. By “mixing” their labor with resources (land), individuals rightfully acquired property, provided enough was left for others: the famous “proviso.” (You could not, for example, grab all the acorns and then leave them to rot.) Next, he introduced money, an “invention” of civilized men, which can accumulate without “spoiling.” A monetized economy overcame the problem of “waste” (spoilage) and allowed men to build large estates through production, exchange, and purchase. The increased productivity of larger estates assured that enough was left for others (provided bare subsistence from wage labor is “enough”). Arguing from economies of scale, Locke built an apology for the land enclosures into his system (not to mention a kind of Lockean multiplier whereby enclosed lands yield 10 times the product of commons). Paying wages made other men’s efforts count as “mine” in appropriating property out of common resources (“The turfs my servant has cut,” and so on).

These market activities precede the creation of states. Since individuals’ personal “execution” of the natural law caused predictable problems, property holders created government through a social contract to provide impartial judicial services and common defense, putting their rights in trust. Accordingly, Locke held that property cannot (normally) be alienated even by conquest. Locke’s applied system was less obviously liberal. From the theoretical high ground we suddenly descend to actual English property holdings in the late seventeenth century, with Locke pretending they rest on individual labor and free exchange rather than on conquest and expropriation.

So far Locke appears to be an advanced Whig and founder of liberalism with a nice rationale for infrequent and minimally disruptive uprisings by a consensus of great landholders, gentry, merchant capitalists, and bankers, duly supported by respectable tradesmen, shopkeepers, and farmers who survived enclosure. These are “the people,” moderately and prudently redressing their grievances, even if (as Christopher Hill notes) Locke never actually defined who “the people” are. Americans took Locke fairly literally during our Revolution, and as a result his ideas sometimes seem the only American political tradition, as Louis Hartz complained.

Locke’s Problems

Since at least the eighteenth century, frustrated readers of Locke have “corrected” his system to purge it of apparently foreign elements. Some take Lockean rights as a starting point and move on (see Robert Nozick); others reject Locke’s system while extracting congenial points from it (Murray Rothbard). Truncated or not, Locke has left us some serious problems.

Social Contract. Whether seen as historical possibility or useful fiction, the social contract was always nebulous. The key perhaps was that something like a social contract “must have” happened, otherwise governments would not rest on voluntary consent. Further deductions from that premise would grind to a halt. Deductions were saved, but at a considerable cost in realism.

Mercantilism and Colonial Empire. As a political associate of the First Earl of Shaftesbury, Locke had access to the highest Whig circles. He was both a policymaker and theorist, serving as secretary to the Lords Proprietors of Carolina from 1668 to 1675 and writing (presumably with Shaftesbury) that peculiar neofeudal document Fundamental Constitutions of Carolina in 1669. He was a substantial stockholder in the slave-trading Royal African Company, and in 1696 we find him serving at the Board of Trade.

No stranger to mercantilism and colonial imperialism, Locke nevertheless argued that land is not rightly acquired by conquest unless it has been lying idle. This exception is extremely important, since Locke artfully fitted his “natural” right to property to English Protestant practices. Non-Europeans need not apply. Locke conceded that God had given land to mankind in common. On the other hand, the “industrious and rational” can—indeed must—prevent its being “wasted.” They can “mix” their labor with land to acquire it but must maximize the product. Anyone failing to maximize could rightfully be dispossessed—Indians in America, non-enclosing peasants at home. In effect, Locke promoted freedom for a minority of industrious Englishmen—a freedom to be paid for through constant growth premised in part on overseas empire. Like his successor Adam Smith, Locke favored relaxing the rules “within one part of the system” (as William Appleman Williams put it), which otherwise continued to require overseas expansion.

Locke and Slavery. For Locke slavery arises in a sort of social-theoretical Guantánamo. It was not part of any social contract but arose in “war,” private or public. In Locke’s view anyone who (in a state of nature) attacks another or steals his property “forfeits” all rights and becomes an “unnatural man” subject to death, outlawry, or enslavement in lieu of death. (Paragraph 19 of the Second Treatise wonderfully conflates defense with “war.”) Reject one step here, and the whole thing falls to the ground. (Locke’s reasoning nonetheless seems to inspire those war-prone libertarians who characterize the U.S. government’s enemies of the day as “pirates,” “common enemies of mankind,” and so on.)

This apparent “exception” to liberty hidden inside liberal State theory causes much interpretive anguish. Some writers see Locke as departing here from his real views. Others have him bending his theory to achieve a desired end. Still others believe Locke’s slavery doctrine reveals hidden premises in his system. Given Locke’s investments, it was perhaps convenient that he could accommodate slavery. His moves here involve some of his favorite hobby horses—aggression, forfeiture of rights, and enslavement.

Locke had labored to get around men’s “in-common” right to the earth and thought he had justified English gentlemen’s large estates. Looking abroad, however, he argued that some lands remained common, after all, owing to non-Europeans’ waste (failure to maximize). It seems a fair implication of the text that where such people resist European efforts to develop those “idle resources,” wars with them would be “just” and they might rightfully be enslaved if the conquerors forwent their “right” to kill them. In fairness, Locke never specifically said that “just wars” in West Africa accounted for the current supply of slaves, although Laslett believes Locke rationalized the matter thus.

Bastard Feudalism

Land and State. Why should anyone born after the imaginary social contract obey the current government? Here Locke’s claims about political obligation and consent reach their goal through what I shall call the Law of Conservation of Feudal Assumptions. As George Gale suggests, territoriality was Locke’s key (but hidden) premise: that is, civil society’s (the State’s) sovereign jurisdiction over a given territory to the exclusion of other States. But where has this come from? After adducing so many unlikely natural rights, Locke has suddenly become very conventional.

Now Locke might be describing a mere contract between neighboring property holders establishing a common defense agency (á la Murray Rothbard and Hans-Hermann Hoppe). In time this agency might assert a monopoly over “its” territory (the lands of its principals) and successfully march from Dominant Agency to minimal State (as in Nozick). Now the erstwhile agency would start commanding its former principals. But Locke took a shortcut and tied “Enjoyment of Land” to “a submission to the Government of the Country of which the land is part.” Civil society turns out to have a spatial dimension. All the “voluntary” consent Locke relied on to ground the social contract seems to vanish when he states that no one can withdraw himself and his lands from civil society. No secession here. He can of course emigrate, forfeiting his property.

State ownership of land has arrived, quite unexplained. One wonders what the State has “mixed” its labor with. Perhaps it has mixed its swords and cannon with another State’s soldiers or civilians. In any case, the social contract has somehow “annexed” individuals and their property to the community (State), and State control of land tenure becomes a chief means of enforcing obedience. So much then for all the “natural law” grounding of Locke’s system.

Naturalized immigrants have to pledge express allegiance. Native citizens are bound by the State’s not-so-hidden power to vacate their property titles. Further, the State is free to enclose outliers and renegades (and their lands) politically, without limit—no proviso here about leaving “enough” for others. Actual State practice has supplied Locke’s rules, leaving individual “owners” at the mercy of the State. Now Locke seems about as liberal—or as feudal—as William Blackstone.

Locke meant it when he described the “chief end” of government as “Preservation of Property.” But if the State is in some way the ultimate owner, the chief end now amounts to preserving the government’s claims—suggesting a modernized “bastard” feudalism, that is, feudalism without the advantages of the real thing: decentralization and reciprocal obligations. Like the Common Lawyers, Locke helped bridge the intellectual transition from one form of State to another. Accordingly, his liberalism is not in too much tension with his feudal recommendations for the Carolinas. Longstanding assumptions about (State) superiorities over land persist, while a modernizing State replaces feudal intermediaries.

Executive Liberalism. A closely related theme involves unknowably large emergency powers. Henry Parker, parliamentary propagandist in the Civil War (d. 1652), domesticated Machiavelli’s “reason of state” with all its unknown powers “outside” the law. Hobbes and Locke inherited this principle. Uniting a broad “Federative” (foreign affairs) power with ordinary executive power, Locke extended the executive’s arbitrary wartime capacities into domestic life. (On these matters, see Sheldon Wolin, “Democracy and the Welfare State,” Political Theory, November 1987.)

But Locke hardly bothered grounding this dual-use (“prerogative”) power and merely derived it from what men surrendered on becoming “one Body.” With men’s personal enforcement of the law ceded to the State, the king had a roving, “at-will” commission to do good at home or abroad. The king could suppress customary law to foster increased productivity (and thus greater State revenue) so as to outdistance his foreign rivals. Here is Locke the near-Hobbesian, employed by defenders of Lincoln’s executive dictatorship (“outside” or “beyond” the Constitution) and by latter-day “securitarians,” who dwell on eternally returning emergencies and national survival.

Seventeenth-Century “Natural Law” Swindles

How we got here on the high road of natural rights is an interesting tale. In it Locke is but one of many theorists who packed new content into the old shell of natural law in a kind of seventeenth-century Wrong Turn. The new international lawyers Suarez and Vitoria, seconded by Grotius, Locke, and others, asserted various unlikely “rights” belonging to natural individuals in hypothetical stateless societies. (I rely here on Richard Tuck, Brian Tierney, and Heinrich Rommen, among others.)

There were two jokes here. First, these “rights” derived from the observed behavior of States—such as Locke’s claim that someone has a “right” to kill his defeated enemy out of hand, and therefore may enslave him. Next, the theorists aggregated these State-like “individual rights”—private war-making, private death penalty, private enslavement—and gave them (back) to the State by way of imaginary general consent. Taken seriously, this “consent” bound actual persons even tighter, the gains being therefore rather murky. State practices were now justified by a collectivization of “rights” that individuals never had and which in the genuine, Christian natural-law tradition might never arise. Locke’s generously broad war powers—first private, then governmental—lead away from any serious just war theory toward total war.

These unhappy results hinge crucially on an explicit premise of the seventeenth-century “natural law” writers, namely, that promises must always be kept. (Hobbes claimed that even promises made under duress were valid; Locke disagreed.) “Will,” once expressed, supposedly provides full justification for both a contract and its enforcement. Skepticism seems warranted, especially regarding fictitious “contracts.” Justification, if we find it, will probably not be in some bare union of “wills” and nothing further.

The Devious Locke?

C. B. Macpherson remarked on the common “underestimate” of how much Locke subjected individuals to political power. He wondered why Locke’s landowner-State should have any jurisdiction over rural and town proletarians. The analogy that came to his mind involved merchant companies chartered by the king and empowered by sovereign bluster to use native labor (or imported slaves)—and land—wherever their enterprises took them. After all, if Locke’s property holders have created a real State—and on Locke’s account they have—they will use it. Once again Locke and imperial practice are not far apart, especially since Locke’s community (State), having eliminated law enforcement by individuals, does everything through legislation or prerogative. Here Locke’s model begins to approach legal positivism.

In Locke’s finished model a majority of qualified property owners controls the State, while the State commands each individually. Once more, property—considered as part of an imposed mechanical order—counts more than specific owners of naturally occurring property. And security of property requires obedience. It is not surprising that Locke took rather little interest in constitutional issues or bills of rights, despite his involvement in Shaftesbury’s revolutionary Whig projects.

It is the contrast with Thomas Hobbes that makes Locke seem a great liberal. True, he does give us some “outs” (very narrow ones), which Hobbes denies us. But with the Whig Oligarchs’ triumph in 1688, Locke’s ideas gave valuable rhetorical cover for newly entrenched interests. Soon enough they shifted over to simple Hobbesian practices buttressed with feudal-statist legalisms. (Enter Blackstone.)

In connecting Locke to colonialism, slavery, and more, the point is not to condemn him but to ask how much we want to owe him. (After all, Hobbes seems a better guide on how States actually operate and on what premises.) Anticipating the Thatcher-Reagan program of “free market and strong State,” Locke wanted an active imperial State, along with liberty for the right sort and their right to revolt if things went sour. The point is not that Locke “failed” to be an anarchist; it is that despite appearances, he did not make a case for genuinely limited government. He would, however, have made a wonderful contemporary Republican politician.

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