Ten Principles of Darwinian Lockean Liberalism, Part Two

NATURAL PUNISHMENT

3.  The natural rights to life, liberty, and property are enforced in the state of nature by every individual having the natural right to punish offenders of the natural law--either through forcible punishment or through reputational punishment.

Locke thought that in the state of nature, everyone had the "executive power of the law of nature" to punish those who violated the natural law that no one was to harm another.   Locke claimed that in the state of nature, there is a law of nature "that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions" (ST, sec. 6).  But then he immediately qualified this no-harm principle by saying that one may rightly harm another in punishing someone for an offense against the law of nature.  This must be so because the law of nature could not be a true law if it were not enforced by punishment of those who violate it.  Enforcing the no-harm principle requires harming those who would harm us.

In the state of nature, Locke explained:

"The Execution of the Law of Nature is in that State, put into every Mans hands, whereby everyone has a right to punish the transgressors of that Law to such a Degree, as may hinder its Violation.  For the Law of Nature would, as all other Laws that concern Men in this World, be in vain, if there were no body that in the State of Nature, had a Power to Execute that Law, and thereby preserve the innocent and restrain offenders, and if any one in the State of Nature may punish another, for any evil he has done, every one may do so.  For in that State of perfect Equality, where naturally there is no superiority or jurisdiction of one, over another, what any may do in Prosecution of that Law, every one must needs have a Right to do" (sec. 7).

Notice that Locke did not rely on divine punishment to enforce the law of nature.  The law of nature, like all the other laws that concern "Men in this World" would be in "vain" if individual human beings did not punish the offenders of that law.  This punishment has two distinct purposes: restraint and reparation (secs. 8, 10-11).  Punishing for restraint is to prevent or deter misconduct, and everyone has the right to punish for this purpose.  Punishing for reparation belongs only to the injured party, who seeks some recompense for the damages he has suffered.

Locke indicated that this human punishment of offenders in the state of nature works at three levels.  Through first-party punishment, individuals punish themselves through conscience and guilt (secs. 8, 21, 122, 209).  Through second-party punishment, individuals punish their tormentor through retaliation and revenge (secs. 8, 10-11, 18-19).  Through third-party punishment, individuals can join with those who have been injured unjustly for a collective punishment of the offender (sec. 10).

Locke also distinguished two general kinds of punishment.  In the Second Treatise, Locke stressed forcible punishment as punishing with physical force those who have inflicted physical harm on their victims, which included capital punishment of thieves and murderers (ST, 11, 17).  In the Essay Concerning Human Understanding, Locke identified reputational punishment as a second form of natural punishment: by the "law of reputation," established by a "tacit consent" in "the several societies, tribes, and clubs of men in the world," social opinion calls whatever is socially praised virtuous and whatever is socially blamed vicious; and those who disobey this law are punished with a bad reputation (II.28.10).  In Some Thoughts Concerning Education, Locke advised parents that they should use this law of reputation--social praise and blame--as the most powerful means for shaping the moral character of their children: this was "the great secret of education" for cultivating the moral and intellectual virtues in children and particularly for instilling "civility"--a "respect and good will to all people" (secs. 56-65).

Since the moral standards of this law of reputation vary across cultures, Locke was criticized for being a moral relativist who denied the eternal natural law.  But he responded to this criticism by insisting that despite the cultural relativity, there was some universal regularity in the reputational standards of morality--so that "as to the main, they for the most part kept the same everywhere" (ECHU, II.28.110).

Darwin agreed with Locke.  In his Descent of Man, Darwin explained the evolution of the natural moral sense as rooted in the evolved social instincts of human nature that make human beings intensely attentive to the approbation or disapprobation of people in their social groups, so that they want to have the good reputation for displaying praiseworthy virtues and avoiding blameworthy vices (2004, 120-151).  

Evolutionary anthropologists studying the ethnographic record have confirmed this by finding that there are universal social norms of moral good and evil enforced in societies around the world and throughout history by reputational punishment--norms of social cooperation that include helping kin, loyalty to one's group, bravery, generosity, fairness in social exchange, and respecting property rights (Curry, Mullins, and Whitehouse 2019; Westermarck 1906).

These ethnographies of foraging bands show that they form moral communities through agreement on moral rules and then enforce those rules through the forcible and reputational punishment of deviants (Boehm 2012).  Through gossip, ridicule, and shunning, those who violate the rules are punished with bad reputations, and people will refuse to cooperate with them.  The most pervasive means of reputational punishment, deeply rooted in our evolutionary history beginning with our hunter-gatherer ancestors, is gossip (Boehm 2012; Feinberg et al. 2012; Feiberg et al. 2014; Hoebel 1955; Raihani and Bshary 2019; Wiessner 2005; Wu et al. 2016a, 2016b).  Through gossip, we ridicule, shame, or denigrate people for their bad behavior and thus punish them by giving them a bad reputation that imposes social costs on them.  Empirical studies have shown that most human speaking time--perhaps 65% across cultures--is devoted to gossip (Dunbar 2004).

If reputational punishment is not enough to enforce obedience to the rules, then the community can use coercive force, such as expelling deviants from the group, or, in the worst cases, killing them.  Nevertheless, foragers resort to capital punishment only rarely, and usually it's to punish a murderer.

Forcible punishment creates two possible problems.  The group can be torn apart by conflict.  Or an angry relative of a person killed can take vengeance on the executioner.  To avoid these problems, the group must reach a consensus on the punishment and even persuade the close relatives of the victim to cooperate.  In rare cases, the entire community might participate in the execution.  Or, more commonly, the group will delegate a close relative of the victim to do the killing.

Executing a bully is often dangerous for the executioner, however, because bullies are often formidable and aggressive enough to fight back and harm the executioner.  The solution to this problem, is killing at a distance.  There is plenty of evidence that human beings evolved for throwing and shooting projectiles--rocks, spears, arrows, and bullets--that can kill even the strongest opponent from a safe distance (Bingham 1999, 2000; Bingham and Souza 2009).

Some ancient cave drawings provide evidence for this.  For example, rock drawings from a cave at the stone age site of Remigia, Castellon, Spain, dated to sometime before 6500 BC, show this.  In one drawing, we see that on the right there are ten men jubilantly holding their bows over their heads.  On the left, we see a man lying on the ground with exactly ten arrows sticking in his body or on the ground.  Given what we know about hunter-gatherer foragers in the ethnographic record, it's more likely that the victim here was a deviant member of the band who had violated the moral rules of the band--perhaps by murdering someone--and he was becoming a bully who was trying to assert his dominance over the group (Boehm 2017).   One study of the ancient rock drawings in the inland regions of the Iberian Mediterranean basin identified forty-nine scenes of violent content (such as battles, ambushes, and fights), which included eight scenes of "execution squads" (Lopez-Montalvo 2015).

CONSENT TO GOVERNMENT

4.  To overcome the insecurity of natural rights in the state of nature, where every individual is judge in his own case, and his judgment is often distorted by his personal bias, human beings have consented to formal governments to secure their natural rights through formal laws and institutions for making, enforcing, and adjudicating impartial laws.

Locke recognized that there are at least three problems with relying on the individual right to punish to enforce the law of nature in the state of nature (secs. 123-126).

First, there's the problem of knowledge:  many individuals do not have a clear and unbiased knowledge of the law of nature.  In the Letter Concerning Toleration (43), Locke says that the American Indians are "strict Observers of the Rules of Equity and the Law of Nature."  But in the Second Treatise (sec. 123), he says that in the state of nature "the greater part" of men are "no strict Observers of Equity and Justice."  In fact, some men are so "degenerate" that they have no knowledge of the law of nature, and they become like wild animals in their violent attacks on others (ST, secs. 10-11, 128).

Second, there's the problem of partiality: individuals being partial to themselves often cannot render impartial judgment in their own cases, and they are often negligent or unconcerned in judging the cases of others.

Third, there's the problem of cost:  punishment can be too costly to execute, because the offender will fight back and inflict injury on those who try to punish him.

To solve these three problems, people will give up their powers in the state of nature for legislating, judging, and executing the law of nature (secs. 128-131).  They will consent to enter a political society with governmental institutions for legislating, judging, and executing positive laws for the whole community that conform to the law of nature.  This can solve the problem of knowledge, because the legislative power will publicly promulgate the laws.  This can solve the problem of partiality, because the judicial power will decide legal cases through impartial and fair judges.  This can solve the problem of cost, because the executive power will employ the collective force of the community to punish lawbreakers in ways that minimize the costs of punishment for individuals.  All of this should serve the common good of the whole community--in securing the natural rights of all individuals to life, liberty, property, and the pursuit of happiness.

So while Locke disagreed with Hobbes' claim that the state of nature was always a state of war, Locke agreed that there was such a propensity for the state of nature to become a state of war that people would consent to government to secure a more peaceful life.  Some anthropologists have objected that hunter-gatherer societies have been generally peaceful, even calling them the "harmless people" who have never known war (Fry and Soderberg 2013).  

But Darwinian anthropologists have argued that if hunter-gatherers appear to be peaceful, this is because usually by the time anthropologists have contact with them, the foragers have come under state control, which has had a pacifying effect, just as Hobbes and Locke said: because the state of nature easily becomes a state of war, people will benefit from having governments to enforce laws collectively that dampen their tendency to violent conflict.  Once anthropologists probe into the distant history of foragers, they discover a history of extreme violence that was reduced once they came under governmental authority (Boehm 2012; Lee 1979, 370-400; Wrangham and Glowacki 2012).  

For example, the most violent society ever studied by anthropologists are the Waorani, living in the remote Ecuadorian rainforest, among whom for some time about 60% of all deaths were homicides.  The Waorani themselves wanted to end the killing, and they were happy when they came under a governmental authority that reduced the killing (Robarchek and Robarchek 2008).

Of course, even if people have consented to government to secure their peaceful enjoyment of their natural rights to life, liberty, and property, that government can itself become the greatest threat to their rights.  The inevitable conflicts of interest that arise in every community will incline those with political power to use that power to favor their own interests over the interests of others, and thus government will often fail to promote the public good in securing the natural rights of all.  If government becomes utterly tyrannical, then the rights of those being exploited are less secure under government than they would have been in the state of nature, because in a tyrannical government, the rulers can use the collective force of government to exploit the ruled (secs. 91-93).

Although Locke spoke of individuals "wholly giving up" their right to punish offenders against the law of nature in consenting to government, he made it clear that individuals could reclaim this right whenever they were thrown back into the state of nature (ST, 99, 127-130).  So, for example, we have the natural right to kill a thief who threatens our life and property if there is no officer of government available to protect us, because when the thief exercises force without right against us, and there is no common judge with authority to protect us, we are in a state of war with that thief (18-19).

Similarly, if a tyrannical government exercises force without right in threatening our life, liberty, and property, we can rightly defend ourselves against that government that has put us into a state of war (199-204).

Moreover, even if in consenting to government, we have partially given up our natural power of forcible punishment of those who threaten us, we still retain our natural power of reputational punishment of people through our power of approving or disapproving their conduct, and thus enforcing by popular opinion our social standards of virtue and vice (ECHU, II.28.10-11).

What Locke calls the law of reputation is what evolutionary theorists of cooperation--beginning with Richard Alexander (1987)--have called "indirect reciprocity."  In direct reciprocity, we reciprocate the cooperation or defection of others: if you scratch my back, I will scratch yours (Trivers 1971).  In indirect reciprocity, we reciprocate someone's reputation for cooperation or defection:  if you have the reputation for scratching other people's backs, I will scratch yours.  In large societies, where we need to interact with many people who are not our kin, and with whom we have not had any previous interactions, we rely on their reputations to decide whether we can trust them; and our social happiness depends on our maintaining our own good reputations for being virtuous people.

Insofar as Locke saw this moral law of reputation as compatible with individual liberty, he would have agreed with Friedrich Hayek's criticism of John Stuart Mill's "no-harm principle" in On Liberty.  Mill wrote:

"The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion.  That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any f their number is self-protection.  That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.  His own good, either physical or moral, is not a sufficient warrant. . . . The only part of the conduct of anyone for which he is amenable to society is that which concerns others.  In the part which merely concerns himself, his independence is, of right, absolute.  Over himself, over his own body and mind, the individual is sovereign" (1956, 13).

Following this principle, Mill condemned "social tyranny" as "tyranny of the prevailing opinion and feeling" and the "despotism of custom." 

Hayek disagreed: "the fact that conduct within the private sphere is not a proper object for coercive action by the state does not necessarily mean that in a free society such conduct should also be exempt from the pressure of opinion or disapproval. . . . John Stuart Mill directed his heaviest attack against such 'moral coercion.' . . . it probably makes for greater clarity not to represent as coercion the pressure that public approval or disapproval exerts to secure obedience to moral rules and conventions" (1960, 146).  In a free society, Hayek believed, society but not the state enforces moral virtue.  The enforcement of moral rules through the social pressure of public approval or disapproval should not be seen as coercion (1960, 62-63, 402, 451).

When Patrick Deneen (in Why Liberalism Failed) scorns Locke's liberalism for its "atomistic individualism" and its failure to cultivate the moral virtues of social life, he says nothing about this--about how Locke insisted on the importance of promoting social virtue through social praise and blame.

Locke thought he could understand the history of government by studying the history of the American Indians.  From his reading of Jose de Acosta and Gabriel Sagard, Locke learned that there were at least three stages in the evolutionary history of government in indigenous America.  

First, among the pure hunter-gatherer Indians, there were no formal governmental institutions, but there were informal leaders selected by the people of each band to mediate disputes and to lead them in war.  Second, among the horticultural tribes, there was a government by councils, in which leaders would have to win the consent of the council members for any decision.  In these first two stages, people enjoyed the freedom that came from government by popular consent that looked like a kind of democracy.

Acosta's third stage was that of autocratic monarchy or empire--like that of the Incan Empire or the rule of Montezuma in Mexico.  Originally, this was a "moderate rule" that is the best, in which the kings and nobles acknowledged that their subjects were "equal by nature and inferior only in the sense that they have less obligation to care for the public good."  But later this monarchic rule became tyrannical as the rulers treated their subjects as slaves and treated themselves as gods (Acosta, 346, 359, 402).

Today, political anthropologists and paleo archaeologists who study the evolutionary history of government have seen a roughly fourfold evolution--from bands to tribes to chiefdoms to states--that resembles Acosta's three levels.  For example, in the political history of Indigenous North America, there seems to have been a movement from democratic bands and tribes to autocratic chiefdoms and then back to democratic bands and tribes (DuVal 2024; Hamalainen 2022).

For thousands of years, the first American Indian settlers in North America lived as egalitarian hunter-gatherer-fishers in bands with informal leaders whose power depended on persuasion rather than coercion.

Then, between 1500 BC and 500 AD, there is evidence for the systematic cultivation of corn, beans, and squash, which allowed some tribal peoples to settle into horticultural villages that were probably governed by tribal councils and leaders with popular consent.

Around 900 AD, a climate shift (the Medieval Warm Period) brought rising global temperatures, which lengthened growing seasons and supported more intensive and systematic farming.  This eventually allowed for the emergence of cities with centralized power structures.  The best known of these cities are Hohokam (Arizona), Cahokia (Illinois), and Moundville (Alabama).  At the peak of their power, these cities were ruled by elite chiefs and priests exercising religious, political, and economic dominance over the commoners.

But then there was another climate shift around 1300 towards colder, drier, and more unstable weather (the Little Ice Age).  Harvests began to fail, and famines became more common.  By 1400, the cities of Cahokia, Moundville, and Hohokam were abandoned.  People no longer wanted to live in centralized hierarchical cities ruled by elites who exploited the people under them.  Trade, religion, and politics became more democratized in that people chose to live in small foraging bands and horticultural tribal communities where decisions were made by popular consensus.

This popular rebellion against exploitative elite rule illustrates the fifth principle of Locke's political philosophy.

To be continued . . .