Justice: What's The Right Thing To Do? Episode 04: "THIS LAND IS MY LAND"

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today we turn to John Locke
on the face of it
Locke is a powerful ally
of the libertarian
first
he believes,
as libertarians today maintain
that there are certain fundamental individual rights
that are so important
that no government
even a representative government even a democratically elected government
can override them.
not only that
he believes
that those fundamental rights include
a natural right
to life liberty and property
and
furthermore he argues
that the right to property
is not just the creation
of government
or of law
the right to property is a natural right
in the sense that
it is pre-political
it is a right
that attaches to individuals
as human beings
even before government comes on the scene
even before parliaments and legislatures enact laws to define rights
and to enforce them
Locke says in order to think about
what it means to have a natural right
we have to imagine
the way things are
before government
before law
and that's what Locke means
by the state of nature.
he says the state of nature is the state of liberty
human beings are free and equal beings
there is no natural hierarchy
it's not the case that some people are born to be kings and others were born to be
serfs
we're free and equal in the state of nature
and yet
he makes the point
but there's a difference between a state of liberty and the state of
license
and the reason is that even in the state of nature there is a kind of the law it's not
the kind of law the legislatures enact
it's the law of nature
and this law of nature
constrains
what we can do
even though we're free
even though we're in the state of nature
well what are the constraints?
the only constraint
given by the laws of nature
is that
the rights we have
the national rights we have
we can't give up
nor can we take them from somebody else
under the law of nature I'm not free
take somebody else's
life or liberty
or property
nor am I
free
to take my own
life liberty or property
even though I'm free,
I'm not free
to violate the laws of nature, I'm not free to
take my own life
or to sell myself into slavery
or to give to somebody else
arbitrary absolute power
over me
so where does this constraint
you may think it's a fairly minimal constraint, but where does it come from?
Well Locke tells us where it comes from
and he gives two answers
here's the first answer
for men
being all the workmanship
of one
omnipotent and infinitely wise maker, namely God,
they're his property
whose workmanship they are, made to last during his,
not one another's pleasure.
so one answer the question is why can't I give up my
natural rights to life liberty and property
well they're not strictly speaking yours
after all
you are
the creature of God.
God has a
bigger property right in us
a prior priority right
now you might say that
an unsatisfying unconvincing answer at least for those who don't believe in God
what did Locke have to say to them
well here's where Locke appeals to the idea
of reason
and this is the idea
that if we properly reflect
on what it means to be free
we will be lead to the conclusion
that freedom can't just be a matter of doing whatever we want
I think this is what Locke means
when he says
the state of nature has a law of nature to govern it which obliges everyone
and reason
which is that law
teaches all mankind, who will but consult it, that being all equal and independent
no one ought to harm another in his life health liberty for possessions
this leads
to a puzzling paradoxical
feature to Locke's account of rights
familiar in one sense
but strange in another
it's the idea
that out natural rights are inalienable
what does unalienable mean?
it's not for us to alienate them or to get them up to give them a way to trade them the way
to sell them
consider an airline ticket
airline tickets are nontransferable
or tickets to the patriots or to the red sox
nontransferable tickets
are unalienable
I own them
in the limited sense
that I can use them for myself but I can't trade them away
so in one sense an unalienable right, a nontransferable right
makes something I own
less
fully mine
but in another sense
of unalienable
rights
especially where we're thinking about life liberty and property
for a right to be unalienable, makes it more deeply more profoundly mine
and that's Locke's
sense
of unalienable
we see it in the American declaration of independence Thomas Jefferson
drew on this idea of Locke
unalienable rights
to life liberty
and as Jefferson amended Locke,
to the pursuit of happiness. unalienable rights
rights that are so
essentially mine
that even I can't trade them away or give them up
so these are the rights we have in the state of nature
before there is any government
in the case of life and liberty I can't take my own life I can't sell myself into slavery
anymore than I can take somebody else's life or take someone else as a slave by force
but how does that work in the case of property?
because it's essential to Locke's case
that private property
can arise
even before there is any government
how can there be a right to private property
even before there is any
government?
Locke's famous answer
comes in section twenty seven
every man has a property in his own person
this nobody has any right to but himself
the labor of his body
the work of his hands
we may say are properly his
so he moves
as the libertarians later of would move
from the idea
that we own ourselves
that we have property in our persons
to the closely connected idea that we own our own labor
and from that
to the further claim
that whatever we mix our labor with
is unowned
becomes our property
whatsoever then he removes out of the state that nature has provided, and left it in,
he has mixed his labor with, and joined to it something that is his own,
and thereby makes it his property
why?
because the labor
is the questionable property of the laborer
and therefore
no one
but the laborer can have a right
to what is joined to or mixed with
his labor
and then he adds this important provision
at least where there is enough and as good left in common
for others.
but we not only
acquire our property in the fruits of the earth
in the deer that we hunt
in the fish that we catch
but also
if we till and plow and enclose the land and grow potatoes
we own not only the potatoes
but the land
the earth
as much land as a man tills, plants, improves, cultivates, and can use
the product of, so much is his property.
he by his labor
encloses it from the commons. so
the idea is that rights are unalienable seems to distance Locke from a libertarian
libertarian
wants to say we have
an absolute property rate in our selves
and therefore we can do with ourselves whatever we want
Locke is not a sturdy ally for that view
in fact he says if you take
natural rights seriously you'll be led to the idea that there are certain
constraints on what we can do with our natural rights, constraints given
either by God
or by reason reflecting on what it means really to be free and really to be free
means recognizing
that our rights are unalienable
so here's the difference between Locke and the libertarians but
when it comes
the Locke's account of private property
he begins to look again
like a pretty good ally
because he's argument for private property
begins with the idea that we are the proprietors of our own person
and therefore of our labor and there of the fruits of our labor
including not only the things
we gather
and hunt
in the state of nature
but also we acquire a property right in the land that we enclosed and cultivate and improve
there are some examples that can bring out the
the moral intuition
that our labor
can take something that is unowned
and make it ours
though sometimes there are disputes about this
there's a debate among
rich countries and developing countries
about trade related intellectual property rights
it came to a head recently
over drug patent laws
western countries and especially the united states say
we have a big pharmaceutical industry that develops
new drugs
we want
all countries in the world
to agree
to respect the patents
then there came along the aids crisis in south Africa
and the American
aids drugs
were hugely expensive
far more than could be afforded by most Africans
so the south African government said
we're going to begin
to buy a generic version
of the AIDS
antiretroviral drug
at a tiny fraction of the cost
because we can find an Indian manufacturing
company
that figures out how the thing is made
and
produces it
and for a tiny fraction of the cost we can save lives if we
don't respect that patent
and then the American government said
no here's a company
that invested research
and created this
drug
you can just
start mass-producing
these drugs
without paying the licensing fee
so there was a dispute
the US and the pharmaceutical companies sued the south African government to try to prevent
their buying the cheap
generic
this they saw it,
pirated version
of an aids drug
and eventually
the pharmaceutical industry gave in
and said
all right you can do that but this dispute about what the rules
of property
should be of intellectual property
of drug patenting
in a way
is the last frontier of the state of nature
because among nations where there is no uniform law
of patent rights and property rights
it's up for grabs
until by some act of consent
some international agreement
people enter into
some settled
rules.
what about
Locke's account of
private property
and how it can arise
before government and before law comes on the scene
is it successful?
how many think
it's pretty persuasive?
how many
don't find it persuasive?
now let's hear from some critics
what is wrong with Locke's account
of how private property can arise
without consent
I think it's justifies
European cultural norms as far as you look at
how native Americans may not cultivated American land
by their arrival
in the America's
that
that contributed to the development of America which would have otherwise necessarily happened
then or by that specific group
so you think that this defense this defense of private property in land
yes because it complicate original acquisitions if you
only site the arrival of
foreigners that cultivated the land
I see, and what's your name?
Rachelle
Rachelle? Rachelle says this account of how property
arises
would fit
what was going on
in north America
during the time of the
settlement, the European settlement
do you think
Rochelle, that it's
it's a way of defending
the appropriation of the land
indeed, because he is
also
you know, justifying the glorious revolution, so I don't think it's inconceivable
that he's also
justifying colonization as well
well that's an interesting
historical suggestion
and I think there's a lot to be said for it
what do you think of the validity of his argument though?
because if you're right
that this would justify the taking of land in north America
from native Americans who didn't enclose it,
if it's a good argument
then Locke's given us a justification for that if it's a bad argument
then Locke's given us
a mere rationalization
it is morally indefensible
I'm leaning to the second one. You're leaning to the second one, but that's my opinion as well
alright
let's hear
if there's a defender of Locke’s account of private property
and it would be interesting if they could address Rachelle's
worried that this is just a way of defending the
the appropriation of land by the American colonists
from the native Americans who didn't enclose it
is there someone who will defend Locke
on that point?
you're ready are you going to defend Locke?
but you're you're accusing him of justifying the European basically massacre of the native
Americans
but who says he's defending it maybe the European colonization isn't right
you know maybe it's the state of war that he talked about in his second treatise, you know
so the war is between the native Americans
and the
colonists, the settlers
that might have been a state of war
that we can only emerged from
by an agreement or an act of consent
and that's what would have been required
yeah and both sides would have to agree to and carry out and everything
but what about
and what's your name? Dan.
Dan, what about
Rachelle's says
this argument
in section twenty seven and then in thirty two
about appropriating land
that argument if it's valid would justify
the settlers
appropriating that land and excluding
others from it
you think that argument’s a good argument?
well does it kind of imply that the native Americans hadn't already done that?
well the native Americans as hunter gatherers didn't actually enclose
enclose land so I think Rochelle
is on to something there
what I wanted
I
go ahead Dan. At the same time he's saying that just by picking an acorn or taking a apple or
maybe killing of buffalo on a certain amount of land
that makes it yours because it's your labor and that's your labor would enclose that land
so
by that definition maybe they didn't have fences
around
little plots of land but didn't
they were using it
so by Locke's definitions, so maybe by Locke's definition
the native Americans could have claimed a property rights
in the land itself but they just didn't have Locke on their side
as she points out. good
okay that's good
One more defender of Locke
well I mean just to defend Locke, he does say there are
some times in which you can't take another person's land for example you can't acquire land
that is common property to people and in terms of American Indians I feel like they already have
civilizations themselves
and they were using land in common so it's kind of like
an analogy to what he was talking about with like the
common English property
you can't take land that everyone has in common. That's very interesting
and you can't take land
unless you make sure that there's as much land as possible enough for other people take as
well
so if you're taking common,
so you have to make sure whenever you take land or
that there's enough let for other people to use
that's just as good as the land that you took
That's true, Locke says there has to be this
right to private property in the earth is subject
to the provision that there be as much and as good left for others
what's your name. I'm Fang
So Fang in a way agrees with Dan that maybe there is a claim within Locke's framework
that could be developed
on behalf of the native Americans
here's the further question,
if the right to private property is natural not conventional,
if it's something
that we acquire even before we agree to government
how does that right constrain what the legitimate government can do
in order for finally to see,
whether Locke is an ally
or potentially
a critic
of the libertarian idea
of the state
we have to ask what becomes of our natural rights
once we enter into society
we know that the way we enter into society is by consent by agreement
to leave the state of nature and to be governed by the majority
and by a system of laws, human laws
but those human laws
our only legitimate
if they respect
our natural rights
if they respect
our inalienable rights to life liberty and property
No
parliament
no legislature
however democratic
its credentials
can legitimately
violate
our natural rights.
this idea
that no law can violate our right
to life liberty and property would seem
to support
the idea of a government so limited
that it would gladden the heart of the libertarian
after all
but
those hearts should not be so quickly gladdened
because even though
for Locke
the law of nature persists
once government arrived
even though Locke
insists on limited government
government limited
by the end for which it was created
namely the preservation of property
even so
there's an important sense
in which
what counts as my property
what counts
as respecting
my life and liberty
are for the government
to define
that there be property
that there be respect
for life and liberty
is what limits government
but what counts
as respecting my life
and respecting my property
that is for governments
to decide and define
how can that be
is Locke contradicting himself
or is there an important distinction
here in order to answer that question which will decide Locke's fit with the libertarian view
we need to look closely
at what legitimate government
looks like for Locke,
and we turn to that next time.
Nikola, if you didn't think you'd get caught
would you pay your taxes
umm, I don't think so
I would rather
have a system personally
that I could give money to exactly those
sections of the government that I support and not just blanket support everything.
you'd rather be in the state of nature at least on April fifteenth
last time
we began
to discuss Locke's state of nature
his account of private property
his theory of legitimate government
which is government based on consent and also limited government
Locke believes in certain fundamental rights that constrain what government can do
and he believes that those rights are natural rights
not rights that flow
from law
or from government
and so Locke's great
philosophical experiment is to see if he can give an account
of how there could be
aright of private property
without consent,
before government
and legislators arrive on the scene to define property
that's his question
that's his claim.
there is a way,
Locke argues,
to create
property,
not just in the things we gather and hunt
but in the land itself
provided
there is enough and it's good enough for others
today I want to turn
to the question
of consent
which is Locke’s second big idea, private property is one
consent
is the other
what is the work of consent
people here
have been invoking the idea of consent
since we began
since the first week you remember when we were talking about
pushing the fat man off the bridge someone said but he didn't agree
to sacrifice himself
it would be different if he consented
or when we were talking about the cabin boy
killing and eating the cabin boy
some people said well if they had consented to a lottery it would be different then it
would be all right
so consent has come up a lot
and here in John Locke
we have one of the great
philosophers
of consent
consent is an obvious, familiar idea in moral and political philosophy
Locke says that
legitimate government is government founded on consent and who nowadays would disagree
with him?
sometimes when ideas of political philosophies are as familiar as Locke’s
ideas about consent
it's hard to make sense of them or at least to find them very interesting
but there are some puzzles some strange features
of Locke’s account of consent as the basis of legitimate government
and that's what I’d like to take up today
one way of
testing
the possibility of Locke's idea of consent
and also probing some of its perplexities,
is to ask just what a legitimate government
founded and consent
can do
what are its powers according to Locke,
well in order to answer that question
it helps
to
remember what the state of nature is like.
remember the state of nature is the condition
that we decide to leave
and that's what gives rise to consent
why not stay there why bother with government at all?
well, what's Locke's to answer to that question
he says there's some inconveniences
in the state of nature but what are those inconveniences?
the main inconveniences is
that everyone
can enforce the law of nature
everyone is an enforcer or what Locke calls the executor
of the state of nature
and he means executor literally
if someone violates the law of nature
he's an aggressor
he's beyond reason
and you can punish him
and you don't have to be too careful or fine
about gradations of punishment
in the state of nature you can kill him
you can certainly kill someone who comes after you
tries to murder you
that's self-defense
but the enforcement power the right to punish everyone can do the punishing in the state of
nature
and not only can you punish with death people who come after you
seeking
to take your life
you can also punish a thief who tries to steal your goods because
that also counts as aggression against
the law of nature
if someone has stolen
from a third party
you can go after him
why is this
well violations of the law of nature are an act of aggression
there's no police force there are no judges,
no juries
so everyone is the judge in his or her own case
and Locke observes that when people are the judges of their own cases they tend to
get carried away
and
this gives rise to the inconvenience in the state of nature
people over shoot the mark there's aggression there's punishment
and before you know it
everybody is insecure in their enjoyment of
his or her
unalienable rights to life liberty and property
now he describes in pretty harsh and
even grim terms
what you can do to people
who violate the law
of nature
one may destroy a man who makes war upon him
for the same reason
that he may kill a wolf or a lion
such men have no other rule, but that of force and violence,
listen to this
and so may be treated as beasts of prey
those dangerous and
noxious
creatures
that would be sure to destroy you if you fall into their power
so kill them
first
so
what starts out
as a seemingly benign
state of nature where everyone's free and yet where there is a law
and the law respects people's rights
and those rights are so powerful that they're unalienable
what starts out
looking very benign
once you look closer
is pretty fierce
and filled with violence
and that's why people want to leave
how do they leave
well here's where consent comes in
the only way
to escape from the state of nature
is to
undertake
an active of consent where
you agree
to give up the enforcement power
and to create a government
or a community
where there will be
a legislature
to make law
and where everyone
agrees in advance
everyone who enters
agrees in advance
to abide by whatever the majority decides
but then the question and this is our question and here's where I want to get your views then the question
is
what powers
what can the majority decide
now here it gets tricky
for Locke
because you remember
alongside the whole story about consent
and majority rule
there are these natural rights, the law of nature these unalienable rights
and you remember
they don't disappear
when people
join together to create a civil society
so even once the majority is in charge
the majority can't
violate you' re
inalienable rights
can't violate your fundamental right to life liberty and property
so here's the puzzle,
how much power does the majority have
how limited is the government
created by consent?
it's limited by
the obligation
on the part of the majority to respect
and to enforce
the fundamental
natural rights of the citizens
they don't give those up we don't give those up when we enter government
that's this powerful idea taken over
from Locke
by Jefferson
in the Declaration
unalienable rights
so let's go to our two cases
remember Michael Jordan, Bill Gates libertarian objection
to taxation for redistribution well what about Locke’s limited government
is there anyone who thinks that
Locke
does give grounds
for opposing
taxation
for redistribution
anybody?
if you, if the majority rules that there should be taxation
even if
the minority should still not have to be taxed because that's
taking away property which is
one of the rights of nature
so
and what's your name? Ben
so
if the majority taxes the minority
without the consent of the minority to that particular tax law
it does amount to the taking of their property without their consent
and it would seem that Locke should
object to that
you want some
textual support for your
reading of Locke, Ben
I brought some along just in case you raised it
if you've got, if you have your text look at one thirty eight passage one thirty eight
the supreme power
by which Locke means legislature, cannot take from any man any part of his property without his
own consent
for the preservation of property being the end of government
and that for which men enter into society
it necessarily supposes and requires
that people should have property
that was the whole reason for entering a society in the first place
to protect the right to property and
when Locke speaks about the right to property he often uses that
as a kind of global term
for the whole category, the right to life liberty and property
so that part of Locke
at the beginning of one thirty eight seems to support
Ben's reading
but what about the part of one thirty eight
if you keep reading
Men therefore in society having property
they have such a right to the goods
which by the law
of the community
are theirs,
look at this,
and that no one can take from them without their consent
and then at the end
of this passage we see he said so it's a mistake to think that the legislative power
can do what it will to dispose to the estates
of the subject arbitrarily or take any part of them
at pleasure
here's what's elusive
on the one hand he says
the government can't take your property without your consent he's clear about that
but then he goes on to say and that's the natural
right to property
but then it seems that property, what counts as property is not natural but conventional
defined by the government
the goods which by the law of the community are theirs
and the plot thickens
if you look ahead to
section one forty
in one forty he says governments can't be supported without great charge. Government is expensive
and it's fit that everyone who enjoys his share of the protection should pay out of
his
estate
and then here's a crucial line
but still it must be with his own consent
i.e. the consent of the majority
giving it either by themselves or through their representatives
so what is Locke actually saying
property is natural
in one sense but conventional
in another
it's natural in the sense that
we have a fundamental unalienable right
that their be property
that the institution of property exist and be respected by the government
so an arbitrary taking property
would be a violation of the law of nature
and would be illegitimate
but it's a further question
here's the conventional aspect of property, it's a further question what counts
as property, how it's defined
and what counts
as taking property, and that's up to the government
so the consent
here we're
kind of back to our question
what is the work of consent
what it takes for taxation to be legitimate
is that it be
by consent
not the consent of Bill Gates himself that he's the one who has to pays the tax
but by the content that he and we, all of us within the society gave
when we emerged from the state of nature and created the government
in the first place
it's the collective consent
and by that reading
it looks like
consent is doing a whole lot
and the limited government consent creates isn't all that limited
does anyone want to respond that or have a question about that? go ahead, stand up
well I'm just wondering
what Locke's view is on
once you have a government that's already in place
whether it is
possible for people who are born into that government to then leave
and return to the state of nature
I mean, I don't think that Locke
mentioned that at all.
what do you think?
well I think
as the convention it would be very difficult to
leave the government
because
you were no longer
there's because nobody else is just living in the state of nature, everybody else is now
governed by this legislature
what would it mean today, you're asking
and what's your name? Nicola
to leave the state, suppose you wanted to leave
civil society
today, you want to withdraw your consent
and return to the state of nature. Well because you didn't actually consent to it,
you were just born into it,
it was your ancestors
who joined
you didn't sign
the social contract I didn't sign
all right so what does Locke say there
I don't think Locke says that you have to sign anything I think he says that it's kind of implied consent
by willingly taking government services you are implying you're consenting to the government
taking things from you
all right so implied consent, that's a partial answer to this challenge
now you may not think that implied consent is as good as the real thing is that
what you're shaking your head about Nicola?
speak up stand up and
I don't think that necessarily just by
utilizing the government's
you know various
resources that
we are
necessarily implying that we
agree with
the way that this
government was formed
or that we have consented to actually join into the social contract
so you don't think the idea of implied consent is strong enough to generate any obligation
at all to obey government
not necessarily no,
Nicola if you didn't think you'd get caught
would you pay your taxes
umm
I don't think so
I would rather
have a system, personally,
that I could give money to exactly
those
sections of the government that I support
and not just blanket
support everything. you'd rather be in the state of nature of at least on April fifteenth
but what I'm trying to get at is you consider that you're under no obligation since you
haven't actually entered into an active consent
but for prudential reasons you do what you're supposed to do according to the law. exactly.
if you look at it that way then you're violating another one of Locke's treatises which is that
you can't take anything from anyone else like you can't
you can't take the government's services
and then not give them anything in return
if you
if you want to go live in a state of nature that's fine
but you can't take anything from the government because by the government's terms which are
the only terms under which you can enter the agreement
say that you have to pay taxes to take those things. so you're saying that
Nicola can go on back to the state of nature if she wants to but you can't drive on
Mass Ave. Exactly
I want to raise the stakes beyond using Mass Ave,
and even beyond taxation
what about life
what about military conscription
yes, what do you think, stand up
first of all we have to remember that
sending people to war is not necessarily
implying that they'll die, I mean obviously
you're not raising their chances here,
it's not a death penalty
so if you're going to discuss whether or not military conscriptions is equivalent to
you know suppressing people's right to life
you shouldn't approach it that way
secondly the real problem here is Locke has this view about consent
and natural rights
but you're not allowed to give up your natural rights either
so the real question is
how does he himself figure it out between
I agree to
give up my life
give up my property when he talks about taxes
or military conscription for the fact,
but I guess Locke would be against suicide
and that's still you know my own consent I mean. Good. What's your name?
Eric. so I Eric
brings us back to the puzzle we've been wrestling with since we started reading Locke
on the one hand
we have these unalienable rights
to life liberty and property which means that even we don't have the power to give them up
and that's what creates the limits
on legitimate government it's not what we consent to that limits government
it's what we lack the power
to give away
when we consent that limits government
that's the
that's the point at the heart of
Locke's whole account
of legitimate government
but now you say well
if we can't
give up our own life, if we can't commit suicide
if we can't give up our rights to property how can we then agree to be bound by a majority
that will force us
to sacrifice our lives or give up our property
does Locke have a way out of this or is he basically
sanctioning
an all-powerful government
despite everything he says
about unalienable rights
does he have a way out of it? who would speak here in defense
of Locke or make sense
find a way out of this
predicament
all right go ahead. I feel like there's a general distinction to be made between
the right to life
that individuals possess and the
the fact that the government cannot take away an individual's right to life
I think
if you look at conscription as
the government picking out certain individuals to go fight in war
then that would be a violation of the rights their
national right to life
on the other hand if you have conscription of
let's say a lottery for example
then in that case
I would view that as
the population picking their representatives defend them in the case of war
the idea being that since the whole population cannot go out there to defend its own right
of property it picks its own representatives through a process
that's essentially random
and the these
these sort of elected representatives go out and fight for
the rights of the people
it looks very similar, it works just like an elected government in my opinion
alright so an elected government can conscript citizens to go out and defend
the way of life
the community
that makes
the enjoyment of rights possible.
I think I think it can because
to me it seems that it's very similar to the process of electing
representatives the legislature
although here
it's as if
the government
it's electing by conscription
certain
citizens to go die for the sake of the whole
is that
consistent with respect for a natural right to liberty
well what I would say is there's a distinction between picking out individuals
and having
a random choice of individuals.
between let me make sure, between picking out individuals,
well I don't, let me what's your name? Gogol.
Gogol says there's a difference between picking out individuals
to lay down their lives
and having a general law
I think this is
on I think this is the answer Locke would give, actually
Locke is against arbitrary government he's against the arbitrary taking
the singling out of
Bill Gates to finance the war in Iraq
he's against singling out a particular citizen
or group of people
to go off and fight
but if there's a general law
such that the
the government's choice the majority's action is non arbitrary,
it doesn't really amount to a violation
of
people's basic rights
what does count as a violation
is an arbitrary taking because that would essentially say not only to Bill Gates, but
to everyone
there is no rule of law there is no institution of property
because at the whim
of the king or for that matter of the parliament
we can name
you
or you to
give up your property
or to give up your life
but so long as there is a no arbitrary rule of law
then
it's permissive
now you may say this doesn't amount
to a very limited government
and the libertarian may complain
that Locke is not such a terrific ally after all
the libertarian has two grounds
for disappointment in Locke
first
that the rights are unalienable and therefore I don't really own myself after all
I can't dispose of my life
or my liberty or my property
in a way that violates my rights
that's disappointment number one,
disappointment number two
once there is a legitimate government based on consent
the only limits
for Locke
are limits on arbitrary
the takings of life or of liberty
or of property
but if the majority decides or if the majority promulgates a generally applicable law
and if it votes
duly according to fare procedures
then there is no violation
whether it's a system of taxation
or system
of conscription
so it's clear
that Locke
is worried about
the absolute arbitrary power
of kings
but it's also true
and here's a darker side of Locke
that this is great theorist of consent came up with a theory of private property that didn't
require consent
that may
and this goes back to the point Rochelle made last time,
may have had something to do with Locke's second
concern
which was America
you remember
when he talks about the state of nature he's not talking about
an imaginary place
in the beginning he says all the world was America and what was going on in America
the settlers
we're enclosing land
and engaged in wars
with the native Americans
Locke who was an administrator
of one of the colonies
may have been
as interested
in providing a justification
for private property through enclosure without consent
through enclosure and cultivation
as he was
with developing a theory
of government based on consent
that would reign in
kings and arbitrary
rulers
the question we're left with
the fundamental question we still haven't answered is what then becomes of consent
what work can it do
what is its moral force
what are the limits of consent
consent matters not only for governments
but also from markets
and
beginning next time we're going to take up
questions of the limits of consent
in the buying and selling
of goods
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