Locke's "Very Strange Doctrine" of the Natural Right to Punish

If Morris Hoffman is right that "evolution built us to punish," this could be the evolutionary basis for John Locke's argument that in the state of nature everyone has a natural right to punish offenses against the law of nature.  When people leave the state of nature by consenting to form a civil society, which establishes a government, everyone gives up that right to punish to the government.  But if that government exercises force without authority in using arbitrary, absolute power to threaten life, liberty, and property, then the people can rebel against the government in exercising force in self-defense, return to a state of nature, and reclaim their natural right to punish.

Locke originally wrote the Second Treatise of Government in 1681-1682 as a political declaration supporting the revolutionary conspiracy of the radical Whigs around Lord Shaftesbury, who were arguing that revolutionary violence was justified to defend the liberty of the people against the absolute monarchy of Charles II.  When the revolution failed, some of the radical Whigs were executed or imprisoned; and others, including Shaftesbury and Locke, were forced into exile in Holland.  Locke was in Holland from 1683 to 1689.  He was followed by spies and informers looking for the opportunity to have him arrested and extradited to England to be tried for treason.  After the Glorious Revolution of 1688, when James II was forced to leave England, and William of Orange sailed from Holland to England to take the throne with Mary, Locke revised the Second Treatise to include passages justifying the revolution by arguing that James II's claim of absolute power had thrown Great Britain into a state of nature, so that the people could exercise their natural right to resist tyranny and establish a new government.  The Second Treatise was published anonymously, and Locke never acknowledged his authorship during his lifetime.

Crucial for Locke's argument was his claim that when government becomes tyrannical, in using absolute power to threaten the lives, liberties, and property of the people, the government has been dissolved, because it violates the ends for which the people consented to the authority of the government; and if the government is dissolved, then everyone has the right to judge what is best for the public good and to engage in forceful resistance to achieve this end.

Locke recognized that it "will seem a very strange doctrine to some men" to teach that "every man hath a right to punish the offender, and be executioner of the law of nature" (ST, 8-9).  The men who think this a strange doctrine are the proponents of absolute monarchy, who cannot imagine how people could exercise such a power without creating utter confusion and disorder, because the judgment of people will be distorted by their self-love and their violent passions.  Locke conceded that government is the remedy for the violent conflict that arises in the state of nature, when people are judges in their own case.  But Locke observed that government by absolute monarchs is no remedy for these inconveniences in the state of nature, in which all are judges in their own case, because an absolute monarch is as much moved by self-love and turbulent passions as any other human being, and if he has the liberty to be judge in his own case and to execute his judgment with all the power of government, without anyone to question or control him,  this is much worse than the state of nature.  It is much better to be in a state of nature, where no one is bound to obey the unjust will of anyone else; and anyone who tries to take away the life, liberty, or property of others will provoke the retaliatory punishment that everyone can rightly inflict as executioners of the law of nature (ST, 13).

If we ask about the ground of that law of nature, Locke offers three answers: the natural equality of the human species, the equal dignity of human beings as God's workmanship, and the equality of human beings in their self-ownership.

First, Locke claims, we can see that the natural condition of human beings is a state of equality, "wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection" (ST, 4).

Some readers of Locke have wondered whether this affirmation of the reality of the human species contradicts the apparent nominalism of Locke's argument in the Essay Concerning Human Understanding that we cannot know the real essence of species (III.6).  And yet, Locke affirms in the Essay that "there is nothing more obvious" than that nature makes animals of the same species "alike" (III.3.13).

If we accept evolutionary science, then we cannot believe that species are eternally fixed essences.  But still we can affirm the reality of biological species as enduring products of evolution.  Posts on this point can be found here, here, here, and here.

Still, we might wonder, how does our membership in the human species support the principles of natural law?  Locke's answer is that it supports the natural morality of the Golden Rule, or of Jesus' teaching that we should love our neighbors as ourselves.  Locke saw this a "a fundamental truth for the regulating human society" that could "determine all the cases and doubts in social morality" (Of the Conduct of the Understanding, 43). 

Locke explains his reasoning by quoting from Richard Hooker (ST, 5).  Since we are all of the same nature with similar desires, Hooker observes, I can understand that I cannot expect to have my desires satisfied by other people if I do not satisfy their desires.  "How should I look to have any part of my desire herein satisfied, unless myself be careful to satisfy the like desire, which is undoubtedly in other men, being of one and the same nature."  As I desire not to be harmed by others, they desire not to be harmed by me.  And if I do harm them, I can expect to suffer retaliatory harm from them.  If I desire to be loved by others, then I must also love them.  From this principle of reciprocity, natural reason can infer rules for the direction of life, such as these from Justinian's Code and Digest of Roman law: "What anyone approves in himself he cannot reprove in another."  "What anyone lays down as a law for another he ought also to abide by himself."  "One is entirely to abstain from all wrong and violence" (Of the Laws of Ecclesiastical Polity, I.8.7).

Locke has indicated in the First Treatise (86, 88) that natural desires create natural rights when human beings reflect on the conditions for satisfying their desires.  And so from understanding that all human beings by nature share my desire not to be harmed, I can infer that all human beings should have a natural right not to be harmed, and that when people initiate aggressive attacks on the life, liberty, or property of others, the injured parties have the right to punish them to achieve reparation of the damage they have suffered; and all others have the right to punish the offenders for the sake of restraining them and deterring others (FT, 10-11).  (We might see here the intimation in Locke that we derive "rights from wrongs," from our sense of injustice, as Alan Dershowitz argues.)

Thus, there are three levels of punishment.  By first-party punishment, those people with a conscience punish themselves by imagining the guilt they would feel if they unjustly harmed others (ST, 8, 122, 209).  By second-party punishment, the victims of aggression retaliate or seek vengeance against those who have injured them.  By third-party punishment, those who feel some concern for the victims punish the aggressors.

Morris Hoffman has shown how these three levels of punishment are expressed in the history of law as shaped by human evolutionary history, and how the evolution of the brain has shaped neural correlates for each of these three levels (Hoffman, The Punisher's Brain).  This has been the subject of a previous post.

Hoffman surveys much of the evidence and argumentation for the claim that our evolved social nature is complex.  We have evolved to cooperate, to cheat, and to punish cheaters.  We have evolved to cooperate because of the advantages of cooperative relationships.  But we have also evolved to cheat whenever that seems advantageous for us.  We have evolved to punish cheaters to restrain the propensity to cheating.  This would seem to support Locke's account in that we are naturally inclined to cooperate, but since many people are also naturally inclined to harm others, we are naturally inclined to punish those who harm us.

Evolutionary science and behavioral neuroscience also support Locke's claim that the natural law of cooperation can be understood as grounded on the Golden Rule.  Evidence from evolutionary theory and neuroscience suggests that there are complex genetic, neural, and hormonal mechanisms that have evolved for understanding and obeying the Golden Rule.  Neuroscientist Donald Pfaff has argued for this in two books--The Neuroscience of Fair Play: Why We (Usually) Follow the Golden Rule (2007) and The Altruistic Brain: How We Are Naturally Good (2015).  I have written about this kind of reasoning in various posts: here, here, and here.

But does this purely naturalistic ground for natural law and punishment--the evolved moral nature that we share with all members of the human species--contradict Locke's creationist account of natural law?  Locke often indicates that since all human beings were created in God's image, they are all his "workmanship" or property, and as such they are not to be attacked or destroyed, because this would deny their uniquely human dignity as God's special creation (FT, 30, 52-54, 85-86; ST, 6, 56; ECHU, IV.3.18).  This Lockean moral creationism is echoed in the famous language of the Declaration of Independence--that "all man have been created equal," and "endowed by their Creator with certain unalienable rights."

Some of the critics of Darwinian liberalism have argued that this shows that Lockean classical liberalism cannot be rooted in a purely natural Darwinian science without a creationist theology.  I have responded to these critics in posts here, here, here., here, and here,.

Darwin rejected the "special creation"--the idea that each living species, including human beings, had to be miraculously created by God.  But he acknowledged God as the Creator of the laws of nature, so that the Creator was the "primary cause" of everything, and the laws of nature were "secondary causes."  This kind of thinking allows many religious believers to be theistic evolutionists.

Darwin thought that "the conviction of the existence of an all-seeing Deity has had a potent influence on the advance of morality," and thus he could agree with Locke that belief in the Creator as the source of moral law could reinforce human morality (Descent of Man, 2004, 682).  But he thought the belief in a God who was omnipotent, moral, and caring for human beings arose only a few thousand years ago.  "The idea of a universal and beneficent Creator does not arise in the mind of man, until he has been elevated by long-continued culture."  He also thought that it was possible for many human beings to live by their conscience as "the supreme judge and monitor," without the necessity for believing in a God who rewards the good and punishes the bad.  We can be good without God.

So Darwin disagreed with Locke who declared--in his Letter on Toleration--that atheists could not be tolerated, because "promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist," and thus "the taking away of God, though but even in thought, dissolves all."

Evolutionary theorists who study the cultural evolution of religion--people like David Sloan Wilson, Ara Norenzayan, and Joseph Henrich--agree with Darwin.  They explain the appearance in the first agrarian states of prosocial religions with Big Gods or High Gods, Gods who are more powerful, more knowing, and more moralizing than the supernatural spirits of prehistoric religion.  They see this as favored by group selection in war: groups with prosocial religions were stronger than groups without such religions.  The beliefs and practices of these religions promoted social cooperation in large communities based on a shared belief in a morality enforced by an all-powerful and moralistic God.  Now the majority of human beings around the world are believers in one of the global prosocial religions--Hinduism, Buddhism, Judaism, Christianity, and Islam.  Economic game experiments with people around the world indicate that those who embrace one of these religions tend to have a stronger sense of fairness.  This could explain why Locke thought an appeal to Christian creationism could support a natural moral law of principles like the Golden Rule.

The third ground of Lockean natural law--the equality of human beings in self-ownership--can also be explained by an evolutionary account of human nature.  Everyone has property in his own person and in the extension of his person through labor, by which he appropriates things as property (ST, 27, 44, 163-64, 172).  Moreover, as a social animal dependent on parental care from birth, human beings extend their care for themselves to their sexual mates, their children, their parents, and other relatives.  These social instincts of mammalian psychology can then be extended beyond the family to others with ties of social affiliation.  Thus, human sociality is rooted in the biological inclinations for survival, mating, and reproduction (FT, 86-89; ST, 54-56, 77-84).

This Lockean conception of individual personhood as embodied self-conscious awareness of, and emotional concern for, the survival and well-being of the body can now be confirmed as manifest in the human nervous system as a product of mammalian evolution.  If we follow Antonio Damasio's "somatic marker hypothesis" and Bud Craig's neuroanatomical argument, we can identify the self-ownership of the person as an activity of the brain in constituting the subjective awareness of the individual in caring for one's self and for others to whom one is attached.

I have elaborated these points in posts here, here, and here.