Over at the Washington Post’s Volokh Conspiracy blog, Jim Lindgren has taken issue with a post I wrote on John Locke and a natural or human right to self-defense from a little more than a year ago. He’s also misspelled my name, but that’s neither here nor there.
Here’s what I wrote about Locke:
To be sure, if we read a foundational text like John Locke’s Second Treatise of Government, we find a natural right to punish anyone who would harm us in our life, liberty, health, or possessions. In the state of nature, Locke tells us, each person is effectively judge, jury, and executioner unto herself. And, of course, it’s precisely the problem of a lack of independent judgment in the state of nature that leads people to join together to form a political community.
But for people to establish a political community, Locke asserts that people must give up to the government their natural right to punish criminal behavior and agree to have the government settle grievances. This is why we have standing laws that are meant to be applied equally by independent officers of the law and by the courts.
Lindgren takes me to task because he thinks I either haven’t read, don’t understand, or don’t care about Chapter 3 of Locke’s Second Treatise. As Lindgren rightly notes, there are two half-sentences in Chapter 3 that support his argument that the natural right to defend oneself transfers once we leave behind the state of nature and enter civil society. The first is in Section 17:
He that, in the state of nature, would take away the freedom that belongs to any one in that state, must necessarily be supposed to have a foundation of all the rest; as he that in the state of society, would take away the freedom belonging to those of that society or commonwealth, must be supposed to design to take away from them every thing else, and so be looked on as in a state of war.
In this section, Locke is discussing enslavement, the removal of freedom, which Locke extends in Section 18 to include thievery (though, in 18, Locke doesn’t mention civil society at all). Then, Locke makes a second reference to civil society in Section 19:
Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho’ he be in society and a fellow subject.
This is the sum total of Locke’s discussion of how citizens of a commonwealth ought to deal with threats to their lives, liberty, or property — and it comes, off-handedly, in the middle of a discussion of the state of nature, not civil society.
To be sure, Lindgren provides several other quotations from Chapter 3, but each one is actually referring to the state of nature, not civil society.
Despite these two quotations, upon which Lindgren relies, I continue to hold to my position that Locke would want to minimize our use of self-defense on our own recognizance in civil society. I do so in no small part because Locke’s position in Chapter 3 is directly challenged by other quotations we can find later in the Second Treatise where Locke is specifically discussing civil society rather than the state of nature (for example, Sections 87-89 and 128-130, to which I refer you rather than inserting a whole bunch of very lengthy quotations).
In each of these sections of the text, one could probably find a half-sentence in which Locke might be preserving citizens’ ability to take the law into their own hands, but one could much more easily, I submit, read Locke making clear his preference for giving up to the rightful authorities our natural right “of doing whatsoever he thought for the preservation of himself” (Sec. 129).
Thus, apart from two half-sentences in Chapter 3, on which Lindgren entirely relies in his criticism of my old blog post, there seems not to be any other case that Locke mentions in which it would be acceptable to harm or kill a fellow citizen and, instead, several complete sections in which Locke seems clear that we give up our right of executive enforcement of the law because we’re no longer in the uncertain realm of the state of nature, where each person is necessarily judge, jury, and executioner.