The Darwinian Science of the Natural Right to Punish in Lockean Liberalism

John Locke's liberalism depends ultimately on two inseparable doctrines--the idea of the state of nature and the idea that in the state of nature everyone has the "executive power of the law of nature."  These two ideas sustain the fundamental thought of Lockean liberalism--that each individual has a natural right to defend himself against those who use or threaten force that would deny his liberty, that the only proper role of government is to use force defensively against aggressors who have initiated force, and that each individual has the right to resist a government that itself becomes an aggressive user of force to threaten individual liberty.

Those two ideas--the state of nature and the natural executive power to punish--are empirical claims about human nature and human history.  Darwinian science can help us test those claims against the pertinent evidence.

I want to make a general point here about the study of political philosophy.  Much of the study of the history of political philosophy is rightly devoted to studying the history of ideas. But ultimately shouldn't our primary concern be judging the truth of those ideas based on our assessment of the relevant evidence?

So, for example, Darwinian anthropology can confirm the reality of the state of nature as the original condition of humanity by showing how our earliest hunting-gathering ancestors lived in nomadic foraging bands, in which all adults lived as equally free individuals, aggressively defending their autonomy against bullies who might try to dominate them.  This was the evolutionary state of nature in which human nature was shaped.  Some of my posts on this can be found here and here, with links to others.

Some of the scholarly commentators on Locke would object that Locke saw the state of nature as a moral fiction rather than as a historical reality.  John Dunn, for example, claimed that Locke's idea of the state of nature represents "neither a piece of philosophical anthropology nor a piece of conjectural history," because it has "no transitive empirical content whatsoever" (1969, 103).  Other scholars see Locke's state of nature as both historical reality and moral fiction (Ashcraft 1968, 1987; Waldron 1989).  And some others emphasize Locke's account of the state of nature as the natural history of primitive foraging bands like the American Indians (Myers 1998; Pangle 1988; Strauss 1953, 230-31).

The decisive evidence for Locke's state of nature as an anthropological historical reality is Locke's reliance on the many anthropological reports about the American Indians, which was part of the European intellectual interest in New World natural history arising from the European discovery of America (Arneil 1996; Batz 1974; Elliott 1972; Glat 1981; Martens 2016; Meek 2011).  I have emphasized the importance for Locke of books such as Jose de Acosta's The Natural and Moral History of the Indies (ST, sec. 102).  In his edition of Locke's Two Treatises, Peter Laslett provides footnotes with quotations from the books on America in Locke's library that echo Locke's description of the state of nature.  Studying such books led Locke to declare: "In the beginning, all the World was America," and therefore it is a "Pattern of the first Ages in Asia and Europe" (ST, secs. 49, 108).

Here I will turn to Locke's account of the natural right to punish, which he calls the executive power of the law of nature.  This will be followed by another post on the evidence from Darwinian anthropology supporting Locke's idea.

Locke claims 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 qualifies 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 explains:

"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 does 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 indicates 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 suggests, however, 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.

Of course, this goal can never be fully achieved, because 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).

If the government was imposed on the people by conquerors, and if the people never consented to that government, even if only by acquiescence, then they are still in a state of war in a state of nature, and they can exercise their natural executive power in violent resistance to their rulers (secs. 175-196J).

If the people did originally consent to their government, they can still rightly resist their government when it becomes tyrannical, because "the Obligations of the Law of Nature, cease not in Society" (sec. 135).  And so if government does not conform to the law of nature, individuals have the natural right to resistance in meeting force with force.

The question will always be "Who shall be Judge whether the Prince or Legislative act contrary to their Trust?" Locke's answer is "The People shall be Judge."  Or even "every Man is Judge for himself." They can "appeal to Heaven," as did Jephtha, which is to say that they can go to war against their government, and this dispute will be settled by battle (secs. 20-21, 239-243).

The assertion of natural rights depends on the forceful resistance to tyranny, which suggests that it is really true that might makes right.  Natural rights emerge in history as those conditions for human life that cannot be denied without eventually provoking the natural human tendency of individuals to forceful rebellion against exploitation. Thus it is that individuals claim their executive power of the law of nature in punishing those who violate their natural rights.

But then we might wonder why Locke refers to this teaching about the natural executive power as a "very strange Doctrine" (secs. 9, 13).  Leo Strauss and the Straussians--such as Michael Zuckert (1994)--have argued that Locke is intimating that this doctrine is "very strange" in the sense that it breaks with the traditional Aristotelian and Thomistic teaching about natural law.  As a statement of the traditional teaching, Strauss (1953, 222) cites a passage in Aquinas's Summa Theologica (II-II, q. 64, a. 3), in which Aquinas answers no to the question "Whether it is lawful for a private individual to kill a man who has sinned?"  Aquinas explains that only those with public authority to punish criminals can do this, not private individuals.

Strauss is silent, however, about the fact that a few pages after this passage, Aquinas answers yes to the question "Whether it is lawful to kill a man in self-defense?" (II-II, q. 64, a. 7).  Killing in self-defense is not murder as long as one's primary intention is to save innocent life from attack, and killing the attacker is an unavoidable side effect.  One can rightly kill an attacker in self-defense only when there is no non-lethal way to stop the attacker.  Contrary to Strauss's claim, this seems to coincide with Locke's teaching that when innocent life is threatened by an attacker, and there is no way to call in a public authority to stop the attack, then at that moment one has been put into a state of nature where one can use one's natural executive power to kill the attacker, thus enforcing the right of self-preservation in the law of nature (secs. 11, 16, 18).

Strauss is also silent about Aquinas's argument that vengeance (vindicatio) is lawful and virtuous so far as it moves us to punish harmful wrongdoers, either in defending ourselves from harm or in avenging a harm (II-II, q. 108, aa. 1-3).  Aquinas explains that vengeance belongs to the virtue of justice, and it expresses a natural inclination that we share with other animals who show an irascible power to retaliate against those who attack them.  This natural inclination to punish those who threaten us with harm expresses "natural right" (ius naturale).  (I have written a post on Aquinas's remarkable support for vengeance, in contrast to the turn-the-other-cheek teaching of the Sermon on the Mount.)  Obedience to law, Aquinas observes, depends on the fear of punishment (ST, I-II, q. 92, a. 2; q. 100, a. 9).  So, if there is a natural law, there must be a natural punishment.

This natural law of punishment through self-defense and vengeance was recognized by Thomas Hobbes in The Leviathan, if only briefly, and then elaborated by Richard Cumberland in his Treatise of the Laws of Nature.  Cumberland's account was a likely source for Locke's idea of the natural executive power, as suggested by Strauss (1953, 222, n. 83) and Zuckert (1994, 364-65).

Near the end of Chapter 31 of Leviathan, Hobbes has a short section on "natural punishments."  Hobbes observes that natural laws are enforced by the natural punishments that arise as natural consequences of violating those natural laws.  So, for example, injustice is punished by the violence of enemies.  Or as he puts it in the Latin version of Leviathan, "those who use violence are punished by the violence of others; . . . and such are what I call natural punishments" (Hobbes 2012, pp. 572-73).

Cumberland's Treatise, first published in 1672, was one of the first attempts to refute Hobbes's theories.  In arguing that Hobbes was inconsistent with himself in denying the obligations of the law of nature in the state of nature, Cumberland points out that Hobbes's remarks about "natural punishments" show how, even in the state of nature without any civil government, human beings are naturally inclined to vengeance against those who violate the law of nature, which provides the natural sanction for that law of nature.  And since human beings are equal in their liberty in the state of nature, each individual would have the equal natural right to punish wrongdoers, so that the likely costs of wrongdoing would outweigh any likely benefits.  Consequently, even those men who might be so evil as to lack any conscience that would recognize God's punishment of sin could not escape the punishment coming from human vengeance against injustice (Cumberland 2005, I.26, V.25).

The crucial point here is that for natural law to be truly natural, it cannot depend upon belief in divine law enforced by eternal rewards and punishments from God as the moral lawgiver.  A purely natural law can be sanctioned by the natural human propensity to punish violent injustice, which expresses a natural inclination to vengeance shared with other animals.

This is an important element of the Lockean liberal argument for religious liberty and toleration.  If the good moral order of any society depends on certain religious beliefs, this supports using legal coercion to enforce those religious beliefs.  But if the natural moral law can be enforced by natural punishments, regardless of religious beliefs, then there is no justification for legally compelling belief in religious doctrines thought to sustain moral conduct.  This point is clear in Locke's Letter Concerning Toleration, where he argues that it is unjust for the European conquerors of America to use legal coercion to compel the American Indians to convert to Christianity, because these "innocent Pagans" are "strict Observers of the Rules of Equity and of the Law of Nature, and no ways offending against the Laws of the Society" (Locke 2010, 40, 76-77).  The natural right to punish those who violate the laws of nature enforces those laws without any need for religious beliefs about divine punishment.

Here, then, is the fundamental idea of Locke's natural executive power, implicit in the thought of Aquinas and Hobbes, developed by Cumberland, and elaborated by Locke.

Once we have traced this idea in the history of ideas, the next step for the serious student of political philosophy is to test the truth of this idea by formulating some testable predictions that follow from this idea, and then we must gather and assess the relevant empirical evidence.  I can think of at least seven testable predictions.

1.  In the human prehistoric foraging era and in ethnographies of foraging bands, we should see evidence for retaliatory violence by individuals acting against other individuals who harm them or threaten to harm them.

2.  We should see evidence for vengeful violence in some nonhuman animals, particularly those closely related to humans.

3.  We should see evidence for a natural human propensity to punish cheaters in experimental games.

4.  We should see evidence for neural mechanisms in the human brain for first-party, second-party, and third-party punishment.

5.  We should see evidence in human natural history for weapons and social mechanisms that reduced the costs of punishment.

6.  We should see evidence in human history that the establishment of bureaucratic states during the agrarian era had a generally pacifying effect in reducing human violence.

7.  We should see evidence in human history of resistance to tyrannical dominance and support for political institutions favoring some approximation to the equal liberty of the evolutionary state of nature.

I have written various posts on how Darwinian science might confirm these predictions.  I will say more in some future posts.


REFERENCES

Aquinas, Thomas. 1981. Summa Theologica. Westminster, MD: Christian Classics.

Arneil, Barbara. 1996. John Locke and America: The Defense of English Colonialism. Oxford: Oxford University Press.

Ashcraft, Richard. 1968. "Locke's State of Nature: Historical Fact or Moral Fiction?" American Political Science Review 62: 898-915.

Ashcraft, Richard. 1987. Locke's Two Treatises of Government. London: Allen and Unwin.

Batz, William G. 1974. "The Historical Anthropology of John Locke." Journal of the History of Ideas 35: 663-670.

Cumberland, Richard. 2005. A Treatise of the Laws of Nature. Ed. Jon Parkin. Indianapolis: Liberty Fund.

Dunn, John. 1969. The Political Thought of John Locke. Cambridge: Cambridge University Press.

Elliott, J. H. 1972. "The Discovery of America and the Discovery of Man." Proceedings of the British Academy 58: 101-125.

Glat, Mark. 1981. "John Locke's Historical Sense." Review of Politics 43: 3-21.

Hobbes, Thomas. 2012. Leviathan. 3 vols. Ed. Noel Malcolm. Oxford: Clarendon Press.

Locke, John. 1988. Two Treatises of Government. Ed. Peter Laslett. Cambridge: Cambridge University Press.

Locke, John. 2010. A Letter Concerning Toleration and Other Writings. Ed. Mark Goldie. Indianapolis: Liberty Fund.

Martens, Stephanie. 2016. The Americas in Early Modern Political Theory. New York: Palgrave Macmillan.

Meek, Ronald. 2011. Social Science and the Ignoble Savage. Cambridge: Cambridge University Press.

Myers, Peter C. 1998. Our Only Star and Compass: Locke and the Struggle for Political Rationality. Lanham, MD: Rowman and Littlefield.

Pangle, Thomas. 1988. The Spirit of Modern Republicanism. Chicago: University of Chicago Press.

Strauss, Leo. 1953. Natural Right and History. Chicago: University of Chicago Press.

Waldron, Jeremy. 1989. "John Locke: Social Contract Versus Political Anthropology." Review of Politics 51: 3-28.

Zuckert, Michael. 1994. Natural Rights and the New Republicanism. Princeton, NJ: Princeton University Press.

The Darwinian Anthropology of Lockean Forcible and Reputational Punishment

The scholars of John Locke's political philosophy have recognized that what Locke calls "the executive power of the law of nature"--the natural right to punish those who violate the law of nature--is crucial for his teaching because the law of nature that supports the equal liberty of all individuals would be "in vain" if transgressions of that law were not punished, and because this natural right to punish is "the true original of political power" (ST, 7, 89).  But while they recognize the expression of this natural right in the forcible punishment of those who inflict physical harm, the Locke scholars do not recognize the second form of this natural right--the reputational punishment of conduct that is offensive to society although not physically harmful (see, for example, Simmons 1991, 1992; Ward 2010; Zuckert 1994).  Nor do they recognize that both forms of natural punishment are seen in hunter-gatherer bands prior to the establishment of government, which confirms Locke's claim that "in the beginning all the World was America," because the foraging life of the American Indians "is still a Pattern of the First Ages in Asia and Europe," which is a state of nature (ST 49, 102, 105, 108).  

In his Second Treatise, Locke concentrates on forcible punishment, and that's what has held the attention of scholars; but they do not recognize that in the Essay Concerning Human Understanding, Locke identifies reputational punishment as a second kind of natural punishment.

In the Essay, Locke says that in all of their actions, all human beings are moved to satisfy their natural human desires, and while there are many natural desires, they are all part of the human pursuit of happiness; and human happiness comes from pleasure, while human misery comes from pain.  Human beings differ, however, in how they rank their natural human desires.  So, for example, some human beings pursue sensual pleasures above all, while others pursue intellectual understanding as the greatest pleasure.  So while there is no single summum bonum for all, there is a single summum bonum for each person (ECHU, 2.21.31-73).

Thus, good and evil are nothing but pleasure and pain.  But moral good and evil requires something more:  it is "the conformity or disagreement of our voluntary actions to some law, whereby good or evil is drawn on us, from the will and power of the lawmaker; which good or evil, pleasure or pain, attending our observance or breach of the law by the decree of the law-maker, is what we call reward and punishment" (2.28.5).  

There are three kinds of moral laws coming from three kinds of lawmakers with three kinds of rewards and punishments.  The divine law is made by God and enforced by His rewards and punishments in the afterlife, and this is "the only true touchstone of moral rectitude."  There are two kinds of human laws: the civil law and the law of reputation.

The civil law is made by government and enforced by governmental coercive force that punishes those who disobey:

"This law nobody overlooks: the rewards and punishments that enforce it being ready at hand, and suitable to the power that makes it: which is the force of the Commonwealth, engaged to protect the lives, liberties, and possessions of those who live according to its laws, and has power to take away life, liberty, or goods, from him who disobeys; which is the punishment of offences committed against the law" (2.28.9).

This summarizes much of what Locke says in the Second Treatise about how people in the state of nature consent to the establishment of government to secure their natural rights.

Finally, "the law of opinion or reputation" is that by which social opinion calls whatever is socially praised virtuous and whatever is social blamed vicious, and those who disobey this law are punished with a bad reputation.  And just as the people have consented to the civil law, according to Locke, they have also consented to this law of reputation:

". . . the measure of what is everywhere called and esteemed virtue and vice is this approbation or dislike, praise or blame, which, by a secret and tacit consent, establishes itself in the several societies, tribes, and clubs of men in the world: whereby several actions come to find credit or disgrace amongst them, according to the judgment, maxims, or fashion of that place.  For, though men uniting into politic societies, have resigned up to the public the disposing of all their force, so that they cannot employ it against any fellow-citizens any further than the law of the country directs: yet they retain still the power of thinking well or ill, approving or disapproving of the actions of those whom they live amongst, and converse with: and by this approbation and dislike they establish amongst themselves what they will call virtue and vice" (2.28.10).

In this way, Locke clearly implies that in the state of nature, the natural right to punish has two levels: there is a natural right to punish with physical force those who inflict physical harm on others, and the people must give up this right to public institutions with the establishment of government and civil law; but there is also a natural right to punish with social disapproval those who have engaged in blameworthy conduct, and this right is retained by the people even after the establishment of government and civil law.

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).  

Locke observed that this law of reputation introduced some cultural variability in moral standards--"and so in different societies, virtues and vices were changed."  This provoked some of his readers to criticize him as a moral relativist who denied the eternal natural law.  And yet he thought there was some universal regularity in these reputational standards of morality. He saw that "as to the main, they for the most part kept the same everywhere."  They "in a great measure, everywhere correspond with the unchangeable rule of right and wrong."  So that "even in the corruption of manners, the true boundaries of the law of nature, which ought to be the rule of virtue and vice, were pretty well preferred" (ECHU, 2.28.11).

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.

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.

Locke's claim that in the state of nature, people enforce the natural law of equal liberty through both forcible and reputational punishment can be supported by the ethnographic studies of foraging bands and other people living without formal governmental institutions.  And the fact that these two forms of natural punishment are manifest in foraging societies, which was the environment of our evolutionary adaptation, suggests that this is part of our evolved human nature.

For example, Polly Wiessner, in her studies of the the !Kung San of Southern Africa, has said that among them, "all adult members of the society are autonomous equals who cannot command, bully, coerce, or indebt others."  There is a "strong egalitarian norm that no adult can tell another what to do."  "All people as autonomous individuals are expected to stand up for their rights," and so everyone has the right to enforce the social norms of the group by punishing those who violate them" (2005, 117, 126, 135).

Punishment can take many forms--from mild to severe--mocking, mild criticism, harsh criticism, ostracism from the group, or violent acts.  Although peace was usually maintained, there was always an underlying threat of violence, and sometimes disputes escalated into general brawls.  Although everyone is free to punish transgressors, those who are judged to be too critical or harsh suffer from their bad reputation.

Among foragers, the punishment for the most violent acts--such as murder--can be execution (Balikci 1989; Boehm 2012; Hoebel 1955).  Typically, a murderer is killed by the victim's family taking revenge.  A serial killer (two or more victims) can be punished by collective action: usually the community orders a relative of the killer to kill him; less often, there is a collective attack on the killer.

Sometimes foragers have been identified by anthropologists as utterly peaceful--even called the "harmless people"--but this is because usually by the time anthropologists have contact with them, the foragers have come under state control, which has 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).  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).

Individuals living under the laws of a centralized state have given up their natural right to the forcible punishment of violent assaults, although they might still exercise their right of killing in self-defense when the officers of the state are not immediately available to protect them.  But even when they live under a government, all individuals still have the natural right to inflict reputational punishment on those who offend them, just as Locke said.  

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 (Curray, Mullins, and Whitehouse 2019; Westermarck 1906).

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).

In all of these ways, research in Darwinian anthropology indicates that Locke was correct in arguing that there is a natural right to enforce the law of nature through forcible and reputational punishment.

I have written some previous posts on some of these points here, here, here, here, and here.

REFERENCES

Alexander, Richard. 1987. The Biology of Moral Systems. Hawthorne, NY: Aldine de Gruyter.

Balikci, Asen. 1989. The Netsilik Eskimo. Long Grove, IL: Waveland Press.

Boehm, Christopher. 2012. Moral Origins: The Evolution of Virtue, Altruism, and Shame.  New York: Basic Books.

Curry, Oliver Scott, Daniel Austin Mullins, and Harvey Whitehouse. 2019. "Is It Good to Cooperate? Testing the Theory of Morality-as-Cooperation in 60 Societies." Current Anthropology 60: 47-69.

Darwin, Charles. 2004.  The Descent of Man, and Selection in Relation to Sex. 2nd edition. London: Penguin.

Deneen, Patrick. 2019. Why Liberalism Failed.  New Haven, CN: Yale University Press.

Dunbar, Robin. 2004. "Gossip in Evolutionary Perspective." Review of General Psychology 8: 100-110.

Feinberg, M., R. Willer, Stellar Keltner. 2012. "The Virtues of Gossip: Reputational Information Sharing as Prosocial Behavior." Journal of Personality and Social Psychology 102: 1015-1030.

Feinberg, M., R. Willer, M. Schultz. 2014. "Gossip and Ostracisim Promote Cooperation in Groups." Psychological Science 25: 656-664.

Hayek, Friedrich. 1960. The Constitution of Liberty. Chicago: University of Chicago Press.

Hoebel, E. Adamson. 1955.  The Law of Primitive Man: A Study in Comparative Legal Dynamics. Cambridge: Harvard University Press.

Lee, Richard Borshay. 1979. The !Kung San: Men, Women, and Work in a Foraging Society. Cambridge: Cambridge University Press.

Locke, John.  1959.  An Essay Concerning Human Understanding. 2 vols. Annotated by Alexander Campbell Fraser.  New York: Dover.

Locke, John.  1960.  Two Treatises of Government. Ed. Peter Laslett. Cambridge: Cambridge University Press.

Locke, John.  1996.  Some Thoughts Concerning Education and Of the Conduct of the Understanding. Eds. Ruth Grant and Nathan Tarcov. Indianapolis: Hackett Publishing.

Mill, John Stuart. 1956. On Liberty. Indianapolis: Bobbs-Merrill.

Raihani, Nichola, and Redouan Bshary. 2019. "Punishment: One Tool, Many Uses." Evolutionary Human Science 1: e12.

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The Lockean Liberal Tradition in America: An Assessment of Arcenas's Intellectual History

In America's Philosopher: John Locke in American Intellectual Life, Claire Rydell Arcenas gives us a meticulous and comprehensive intellectual history of Locke's reception in America, from the early colonial period to the end of the twentieth century.  For that reason, anyone who wants to understand that history will have to study her book.  There are, however, some flaws in her reasoning.

Arcenas tries to prove that Locke's Second Treatise of Government did not create "the Lockean liberal tradition in America," as Louis Hartz famously called it.  To prove this, she makes three arguments.  First, she says the term "Lockean liberalism" is so vague as to be meaningless, and thus open to endless conflicting interpretations.  "By merging the adjective Lockean and liberalism," she claims, "Hartz exemplified the murkiness--and malleability--of the concept of Lockean liberalism, which he was among the first to put into words" (138).

Her second argument is that throughout most of American history prior to the middle of the twentieth century, Locke's Second Treatise was not very influential in America.  Even in those cases where we might assume the influence of the Second Treatise is clear--as in Thomas Jefferson's writing of the Declaration of Independence--Arcenas insists that we are mistaken.

Her third argument is that for most periods of American history, Locke's reception in America came not through Americans reading the Second Treatise, but through his other books that were more popular--particularly, The Essay Concerning Human Understanding, The Letter Concerning Toleration, Some Thoughts Concerning Education, and The Reasonableness of Christianity.  Consequently, the political teaching of the Second Treatise was not very influential in America, at least prior to the middle of the twentieth century, because only then did Americans begin to identify Locke as primarily the author of the Second Treatise. 

I find all three of these arguments unpersuasive.

LOCKEAN LIBERALISM

First, does "Lockean liberalism" have any discernible meaning?  Of course, Locke himself did not use the term "liberalism," because this English word as a label for a moral and political idea did not come into use until sometime around 1820.  But if the word has any meaning, we can ask whether it applies to Locke's teaching.  And as Arcenas indicates, since the middle of the twentieth century, many scholars have defined liberalism in a way that seems to capture the core of Locke's teaching.

For example, in her book John Locke's Liberalism (1987), Ruth Grant identifies the "liberal premise" as the idea that "men are naturally free and equal" (66).  She explains liberal political theory as founded on this premise: "It takes its bearings from the thought that all men have an equal right to govern their actions as they see fit.  No man has an intrinsic or natural right to govern another.  In other words, men are equal in the sense that they are by nature free" (1).  Starting from this premise of the natural freedom and equality of all adult human beings, a liberal political theorist infers that no man can rightly rule over another man without that other man's consent.

Grant can then point to passages in the Two Treatises where Locke affirms this liberal premise.  Locke says that the natural condition of man is a "State of perfect Freedom" (FT, 67; ST, 4).  There is an "equal right that every Man hath, to his Natural Freedom, without being subjected to the Will or Authority of any other Man" (ST, 7, 54).  We can identify this as "Lockean liberalism," and we can then argue about whether Locke was right about this, and whether much of American political thought rests upon this Lockean idea.

Arcenas cites in an endnote of her book the work of Grant and other scholars who see Lockean liberalism as shaping the American political tradition (174n9).  But Arcenas never replies to their arguments.  She does this a lot--citing in her endnotes the work of scholars who would criticize her position but then never answering the criticisms.

THE SECOND TREATISE IN AMERICA

Arcenas begins her argument for minimizing the influence of Locke's Second Treatise in America by claiming that in early colonial America (from 1700 to 1760), there is almost no evidence that anyone read the Second Treatise, although they did read some of Locke's other books.  She sees only two pieces of evidence for the Second Treatise reaching colonial America during this time.  The first is a pamphlet by Elisha Williams published in 1744.  She summarizes this long pamphlet (over 60 pages) in one sentence: "Angry about the new limitations being placed on itinerant preachers in Connecticut, he paired the Letter Concerning Toleration with the Second Treatise and used them to demonstrate the 'essential rights and liberties of Protestants'" (27-28).  In one of her endnotes, she mentions a second reference to the Second Treatise by "Americano-Britannus" in the Maryland Gazette in 1748 (176n9).

There are many more cases of published references to the Second Treatise before 1760 about which Arcenas is totally silent.  For example, in 1701, John Montague quoted two long passages from the Second Treatise about "the Fundamental Principles and Ends of Government," and particularly about how the people established government by their consent to secure their property.  This may be the earliest appeal to Locke's ideas in British America--only twelve years after the publication of the Second Treatise in 1689.

Another example is in a pamphlet published in 1725, in which John Bulkley devoted about fifteen pages to quoting and paraphrasing "the Words of that Great Man Mr. Lock" in the Second Treatise about how "all Men are . . . Equal, Free & Independent & remain so till by Contracts" they establish a government to secure their natural rights.  So he affirmed the liberal premise.  Bulkley gave special attention to how Locke quoted from Josephus Acosta's anthropological report about the native Americans in the New World as evidence that the state of nature was a historical reality among the hunter-gatherers of America.  This explains Locke's famous claim that "in the beginning, all the world was America."  

This denies Arcenas's claim that the state of nature is an ahistorical fiction.  Americans had learned from Locke that his argument for natural rights in the state of nature is rooted in what he called "the history of mankind" (ST, 49, 100-112, 175; Essay, I.3.10; II.28.12).  In an endnote, Arcenas expresses her surprise that "observers in the eighteenth and nineteenth centuries did not shy away from taking [the state of nature] literally, i.e., historically" (186n14).

In 1728, three years after Bulkley's pamphlet, Daniel Dulany wrote a pamphlet published in Maryland in which he quoted and paraphrased the Second Treatise, including Locke's declaration that the state of nature is "a State of Equality, wherein all Power and jurisdiction, is reciprocal; no one having more than another" (ST, 4).  Here's the liberal premise again.

In 1741, an article in the American Magazine--"Remarks on the Maryland Government and Constitution"--provides another example of someone quoting and paraphrasing the Second Treatise.  This author explained Locke's radical interpretation of the Glorious Revolution of 1688-89 as a reversion to the state of nature, in which the British People could establish a new government by their consent to secure their natural rights.

Although Arcenas mentions Elisha Williams's political sermon of 1744, she passes over it in one sentence; and thus she does not allow her reader to notice that Williams devoted about eight long pages to a detailed summary of the Second Treatise that began: "First, as to the origin--Reason teaches us that all men are naturally equal in respect of jurisdiction or dominion one over another.  Altho' true it is that children are not born in this full state of equality, yet they are born to it."  Once again, there's Locke's liberal premise.

Oddly, in her one sentence on Williams's sermon, Arcenas says that "he paired the Letter Concerning Toleration with the Second Treatise."  In fact, Williams never cites the Letter Concerning Toleration.  All of his citations are to the Second Treatise.

Once we move into the early American revolutionary period (1760-1776), the references to Locke's Second Treatise become so great that Arcenas has to concede that the authority of Locke's political teaching increased during this time, although it decreased dramatically following American independence.  Still, however, she tries to minimize this evidence of Locke's political influence in the revolutionary debates either by ignoring much of it, or by arguing that many of the references to the Second Treatise were actually distortions of Locke's teaching.

One example of her ignoring the evidence is that she is silent about James Otis's courtroom speech in Boston in 1761 in "Paxton's Case," even though John Adams identified this as the true beginning of the American Revolution.  Although Arcenas might justify her silence about this speech by noting that, as reported by Adams, there is no explicit reference to Locke, the speech does nevertheless echo the language of Locke's Second Treatise.

According to Adams's report, Otis began his speech with "a dissertation on the Rights of Man in a State of Nature."  What he said sounded like Locke's state of nature.  He began with the liberal premise: "He asserted that every Man, merely natural, was an independent Sovereign; Subject to no Law but the Law written on his heart, and revealed to him by his Maker in the Constitution of his Nature and the Inspiration of his Understanding and his Conscience.  His Right to his Life, his Liberty no created being could rightfully contest.  Nor was his Right to his Property less incontestable."

Notably, Otis applied this liberal principle of natural equality and liberty to include black Americans.  Adams reported: "Nor were the poor Negroes forgotten.  Not a Quaker in Philadelphia or Mr Jefferson of Virginia ever asserted the Rights of Negroes in Stronger Terms; Young as I was and ignorant as I was, I shuddered at the doctrine he taught.  And I have all my lifetime Shuddered, and Still Shudder at the Consequences that may be drawn from Such Premises.  Shall We Say that the Rights of Masters and Servants clash?  and can be decided only by Force?  I adore the Idea of Gradual Abolitions!  But who Shall decide how fast or how Slowly these Abolitions Shall be made? (Letter to William Tudor, June 1, 1818).  Of course, these questions have reverberated throughout American history as Americans have struggled to apply Lockean liberal principles of equal liberty to the problems of chattel slavery and racial inequality.

Otis made clear his reliance on Locke's Two Treatises in the pamphlets he wrote in the early 1760s.  In A Vindication of the Conduct of the House of Representatives of the Province of the Massachusetts Bay (1762), Otis quoted extensively from the Two Treatises, including Locke's affirmation of the liberal premise: "The Natural Liberty of Man is to be free from any Superior Power on Earth, and not to be under the Will or Legislative Authority of Man, but to have only the Law of Nature for his Rule.  The Liberty of man, in Society, is to be under no other Legislative Power, but that established, by consent, in the Common-wealth" (ST, 22).  In The Rights of the British Colonies Asserted and Proved (1764), Otis once again cited Locke's Second Treatise extensively to support his argument for the rights of the American colonists.  He also suggested that the Lockean liberal premise of equal natural liberty must be extended to all human beings, including women and slaves.  He asked a radical question: "What man is or ever was born free, if every man is not?"

Arcenas recognizes Otis's references to Locke's Two Treatises in these two pamphlets.  But she argues that rather than showing the influence of Locke's political teaching on Otis, this actually shows how Otis had to distort and depart from Locke's teaching, because Otis actually rejected two fundamental principles of Locke's teaching.  He rejected Locke's idea that all government was originally created by a social compact.  And he rejected Locke's idea that in that social compact the people gave up or transferred their natural rights to the government.  I suggest, however, that Arcenas has not read Locke as carefully as Otis did, and that in fact Otis agreed with Locke on both of these points.

Arcenas correctly quotes Otis as saying in The Rights of the British Colonies that "government is . . . most evidently founded on the necessities of our nature," and therefore it is "by no means an arbitrary thing, depending merely on compact or human will for its existence."  If government is natural for human beings, it is not an artificial creation of human will.

But if Arcenas had compared everything Otis said about this with what Locke said in the Two Treatises, she would have seen that Otis agreed with what Locke said about human beings as naturally social animals who have a kind of "natural government" in the state of nature.

In his speech in "Paxton's Case," Otis said that in the state of nature, human beings would be "Social Animals by Nature," because their natural sexual desires would bring them together into families and their wider social desires would bring them into larger communities.  Similarly, in The Rights of the British Colonies, Otis spoke of how "the different sexes should sweetly attract each other, form societies of single families, of which larger bodies and communities are as naturally, mechanically, and necessarily combined," which would constitute a kind of "government . . . founded on the necessities of our nature."

Here Otis was echoing the language of Locke in the Two Treatises.  Like Otis, Locke identified human beings as social animals by nature because in the state of nature by the necessities of their nature, they live in families, which constitute "the first society," and within families, parents exercise a "natural Government," which is a "temporary government," over their minor children (ST, 67, 74-77, 105, 170).  In the state of nature, there are social networks of cooperation and exchange extending beyond the family that create communities.  This extended order of community is based on "promises and compacts" and on informal customary social norms that Locke identifies as the "law of nature."  These customary social norms are enforced through violent punishment (including capital punishment), reputational costs for those who violate the norms, and third-party mediation of disputes.  In the state of nature, every adult individual has the "executive power of the law of nature" to punish those who transgress the law of nature, where there is a "law of reputation" to enforce the law of nature through social praise and blame, and where disputes are often settled by those recognized as good mediators (ST, 6-14, 108; Essay, II.28.5-14).  

I have written previously about how Locke saw this in the state of nature in America from his reading of Jose de Acosta's report in his Natural and Moral History of the Indies.  We have seen that colonial Americans like Bulkley saw the importance of this.  In the Second Treatise (102), Locke quoted Acosta's claim that in America there were many societies with "no government at all" and "no kings," but with "captains" or "chiefs" that people chose to lead them when they needed leadership in war or peace.

It might seem confusing or even self-contradictory to say that while there was "no government at all," the people chose those who governed them.  But there's no contradiction if we understand "no government" to mean no centralized bureaucratic state in a hunter-gatherer society that does have some governance by leaders chosen by the people and a system of customary laws enforced by public approval and disapproval.

There is, therefore, a kind of government in the state of nature, although it's a government through informal social institutions and customs enforced by the social consensus of all the adult individuals, where there are no formal political institutions of law and governance.  As I have argued previously, the modern evolutionary anthropology of hunter-gatherer bands in "stateless societies" largely confirms Locke's account of the state of nature as the life of hunter-gatherers in societies governed by informal social institutions but without a centralized state apparatus.

Thus, Locke distinguished the "society" of individuals in the state of nature, where every adult individual has the power to enforce the law of nature, and "political society," where the community has consented to give the power of natural punishment to the officers in a formal legal and political structure (ST, 77, 87).  The first step towards establishing a "political society," Locke suggests, might have been when individual adults expressly or tacitly consented to delegate their natural power of punishment to their fathers: "since without some Government it would be hard for them to live together, it was likeliest it should, by the express or tacit Consent of the Children, when they were grown up, be in the Father, where it seemed without any change barely to continue; when indeed nothing more was required to it, than the permitting the Father to exercise alone in his Family that executive Power of the Law of Nature, which every Free-man naturally hath, and by that permission resigning up to him a Monarchical Power, whilst they remained in it" (74).

Thus, Locke would have agreed with Otis "that government is founded on the necessity of our natures," but Locke would distinguish between two kinds of government.  On the one hand, there is government in natural societies in the state of nature with informal institutions enforced by individuals exercising their natural right of punishment.  On the other hand, there is government in political societies where individuals have consented to give up their natural right of punishment to the formal institutions of law and politics, so long as that power to punish is exercised to secure their natural rights for the public good.

But here Arcenas sees another contradiction between Locke and Otis:  "Otis was interested in the preservation of natural rights in political society, while Locke stressed that rights had to be given up--that is relinquished or transferred" (35).  To support this claim, she correctly quotes Locke as explaining that those leaving "a state of Nature unite into a Community, must be understood to give up all the power, necessary to the ends for which they unite into Society, to the majority of the Community" (ST, 99).

In saying this, however, Arcenas ignores Otis's quotations from the Second Treatise that show that Locke understood that people "give up" their natural power to punish to government with the "trust" that government will use this power to "preserve" or "secure" their natural rights.  "The Reason why Men enter into Society, is the preservation of their Property."  Consequently, if the government acts "contrary to that trust reposed in them" in trying to destroy the natural rights of the people, "by this breach of Trust they forfeit the Power, the People had put into their hands, for quite contrary ends, and it devolves to the People, who have a Right to resume their original Liberty, and by the Establishment of a new Legislature (such as they shall think fit) provide for their own Safety and Security, which is the end for which they are in Society" (ST, 222).  Thus, Locke argued that people give up their natural power of punishing to government only to the extent that, and only so long as, this serves to preserve their natural rights.

Elisha Williams saw this in Locke--that, as Williams said, "no more natural liberty or power is given up than is necessary for the preservation of person and property," and therefore, "the members of a civil state or society do retain their natural liberty in all such cases as have no relation to the ends of such a society in a state of nature."  And so, for example, as Williams argued, "the members of a civil society do retain their natural liberty or right of judging for themselves in matters of religion."  That's Locke's argument in his Letter Concerning Toleration.  (I have written a post on the evolution of religious liberty in the state of nature.)

We should also notice that there are three circumstances in which Locke believed that people "have a Right to resume their original Liberty."  Two of them arise inside a society.  One arises outside a society.  If individuals leave their society and renounce their loyalty to it, then they are free to consent to join another society (ST, 118-22). And even as they live within their society, in those cases where they might be threatened by an attack on their life, liberty, or property, and there is no chance to call for protection by the officers of government, then they revert momentarily to a state of nature, and they have the right to protect themselves by punishing those threatening them.  So, for example, this would include the right of killing in self-defense (ST, 19).

Finally, when the people see a design for their government to assume an arbitrary power to tyrannize over the people, they have a right to resist and to rebel against the government, and to institute a new government that will secure their natural rights (ST, 214-43).  This sounds so much like the American Declaration of Independence that many Americans have seen echoes of Locke's Second Treatise in the Declaration.  

But Arcenas insists this is not true.  She rejects what she calls "the central myth of the American Revolution"--that the Declaration shows the influence of Locke's political teaching in the Second Treatise.  A few weeks ago, I wrote a post noting that Arcenas is silent about the many verbal echoes of the language of the Second Treatise, which illustrates how she uses deceptive silence throughout her book.

She is correct, however, when she says that public references to Locke decreased after 1776 and during the constitutional founding, because in the debates over the forming of constitutions in America, authors like Montesquieu and Blackstone seemed more helpful than Locke, who was better at stating the principles of good government than he was in stating the constitutional design of government.

Even though there were few direct references to Locke in the constitutional founding debates, Lockean principles can be seen both in the Constitution of 1787 as ratified in 1789 and in the Constitution of 1791 with the first ten amendments.  The structure of the new national government as organized around three separate branches--legislative, executive, judicial--conforms to Locke's account of these three separate powers, with the legislative power being supreme (ST, 124-26, 132-42).  The amended Constitution with its Bill of Rights manifested the Lockean principle that the end of government is to secure individual rights, and it implicitly incorporated the Lockean political philosophy of the Declaration of Independence into the Constitution.  I have written about this in a previous post.

After 1800, when Jefferson was first elected President, there was a lot of discussion of Locke's influence on Jefferson, particularly in his writing of the Declaration of Independence, which continued over the last 25 years of Jefferson's life (1801-1826).  Some of Jefferson's critics in the Federalist Party said that he should not be praised as the primary author of the Declaration because he had copied much of it from Locke's Second Treatise.  Some of his defenders in the Republican Party responded by saying that there was nothing wrong in borrowing some words and principles from a great political philosopher like Locke.  Notice that both sides in this debate agreed that Locke's influence on Jefferson's writing of the Declaration was clear.

Perhaps to settle this debate, Jefferson near the end of his life tried to explain his writing of the Declaration: "Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion.  All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c" (Letter to Henry Lee, May 8, 1825).

As Roger Weightman, the mayor of Washington, D.C., was planning the celebration of the fiftieth anniversary of the Declaration of Independence in 1826, he wrote a letter to Jefferson inviting him to attend.  In what became his last letter, Jefferson wrote that his bad health would prevent him from attending.  He then wrote about the promise to all mankind opened by the Declaration:

"May it be to the world, what I believe it will be, (to some parts sooner, to others later, but finally to all,) the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government.  That form which we have substituted, restores the free right to the unbounded exercise of reason and freedom of opinion.  All eyes are opened, or opening, to the rights of man.  The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God" (Letter to Weightman, June 24, 1826).

Amazingly, while the people in Washington and across America were celebrating the fiftieth anniversary of the Declaration, on July 4, 1826, Thomas Jefferson and John Adams, two of the leading drafters of the Declaration, died on that same day.  (I must say I have often wondered whether Jefferson and Adams secretly planned this, because it's just too good.)

So Jefferson saw the Declaration of Independence as "an expression of the American mind," particularly in the idea of "the rights of man" as founded on equal natural liberty; and he saw Locke as one of those influential authors who wrote about this idea.  Brad Thompson sums up all of this in a syllogism:

Major premise:  The Declaration of Independence is an expression of the American mind.

Minor premise:  America's revolutionary mind was an expression of Locke's political philosophy.

Conclusion:  The Declaration of Independence was an expression of Locke's mind.

(C. Bradley Thompson, "John Locke and the American Mind," American Political Thought [Fall 2019]: 575-93.)

Looking at Jefferson's letters, we can see one problem with Thompson's syllogism: according to Jefferson, Locke's mind was not the only mind that influenced the writing of the Declaration.  The American mind was shaped "in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.," all of which led to the liberal idea of "the rights of man."  If Jefferson was right, then Locke was important in the formation of the American mind, but only in combination with other philosophic writers and with many American speakers and writers.

This confirms what Michael Zuckert and a few other scholars have said about Locke as contributing to an "American Amalgam":  Locke's mind is a prominent influence, but only in combination with other minds, in forming the American mind as founded on the political philosophy of natural rights. 

As I indicated in my previous post, Arcenas is silent about all of this discussion among Jefferson's contemporaries of Locke's influence on Jefferson, particularly as manifested in the Declaration of Independence.  This is important for her argument.  Because denying the Lockean character of the Declaration of Independence then allows her to assume that whatever power the Declaration had over American political thought was not in any way a vehicle for advancing Locke's political principles in America.  So when she comes to the nineteenth century, she can say that there were few direct references to Locke's political teaching; and she can ignore the possibility that a lot of Lockean political thinking was introduced indirectly through the debates over the Declaration of Independence as a statement of American political principles.

So, for example, she can deny that Locke's thinking had any influence in the American debates over abolitionism and slavery, even though the opponents of slavery commonly appealed to the principles of the Declaration.  She does have to admit, however, that many of the proslavery apologists recognized that "Locke threatened to undermine efforts to develop intellectual justifications for slavery because his most famous thought experiments--the state of nature and social contract, articulated in the Second Treatise--emphasized the idea (catastrophic to their pro-slavery arguments) that men were born equal" (81).  But she does not allow her reader to see any of the evidence that the proslavery Southerners recognized that the principles of the Declaration of Independence were rooted in Locke's political philosophy, and therefore their attack on the Declaration had to be an attack on Locke.

For example, George Fitzhugh, in his Sociology for the South, or The Failure of Free Society (1854), says that the "abstract principles" of the Declaration of Independence are "wholly at war with slavery," and they are rooted in the "false philosophy" of Locke (175).  Fitzhugh scorns the principles of equal liberty in the Declaration as contrary to the natural fact that human beings are born unequal, and some are born to be natural slaves.  He explains:

"Men are not 'born entitled to equal rights!'  It would be far nearer the truth to say, 'that some were born with saddles on their backs, and others booted and spurred to ride them,' and the riding does them good.  They need the reins, the bit and the spur.  No two men are exactly equal or exactly alike" (179)

In 1866, he said that the conflict in the United States between the North and the South was a continuation of the debate in seventeenth-century England between John Locke and Sir Robert Filmer.  The radical North was on the side of the Whigs and Locke.  The conservative South was on the side of the Tories and Filmer ("The Impending Fate of the Country," De Bow's Review 2 [1866]: 561-70).

In her three sentences on Fitzhugh (81, 204n130), Arcenas is silent about this, because she wants to play down the importance of Locke's political thought in the Second Treatise as expressed in the Declaration of Independence as being part of the debate over slavery and abolition.

Arcenas does finally recognize the influence of Locke's Second Treatise in America when she comes to the twentieth century.  She sees here four transformations in Locke's role in American intellectual life.  First, from 1900 to 1930, scholars began to identify Locke as primarily a political thinker and the author of the Second Treatise.  Second, Locke's Second Treatise began to be seen as relevant to present-day problems that people were trying to solve.  Third, scholars began to emphasize Locke's apparent influence on the American founding.  Fourth, as a consequence of these three transformations, Locke's Second Treatise and his "Lockean liberalism" were seen as the pervasive political teaching of the  continuous stream of the American political tradition from the eighteenth century to the present.

Arcenas fills in this story with accounts of how scholars, journalists, politicians, and popular culture have contributed to this twentieth-century story of Locke as America's political philosopher.  Charles Beard, Carl Becker, Merle Curti, the Great Books Program at St. John's College, Life magazine, Louis Hartz, Hubert Humphrey, Leo Strauss, Willmoore Kendall, Allan Bloom, Gordon Wood, J. G. A. Pocock and many more contributors to the story come into play.  She concludes her book with a comparison of John Rawls's Theory of Justice (1971) and Robert Nozick's Anarchy, State, and Utopia (1974) as showing two sides of Locke's Second Treatise, with Rawls arguing for a version of the social contract, and Nozick arguing for natural rights in the state of nature.

It's disappointing that she ends her story in the 1970s.  It would have been instructive for her to carry her story into twenty-first century America.  For example, she could have considered the debate over Locke launched by "post-liberal" and "Integralist" critics of Lockean liberalism in America--people like Patrick Deneen, Rod Dreher, and D. C. Schindler--and by those on the new reactionary Right--people like Curtis Yarvin and "Bronze Age Pervert."  This is all part of the renewed debate today between Lockean liberalism and anti-Lockean illiberalism.

In any case, most of what she says about the various ways in which interpretations of Locke's Second Treatise deeply shaped American intellectual life in the twentieth century is persuasive.  But, for the reasons I have indicated, I am still not persuaded that she has shown that Locke's political philosophy had very little influence in most periods of American history prior to the middle of the twentieth century.

BEYOND THE SECOND TREATISE?

I am persuaded, however, that Arcenas has shown that for most of American history prior to the twentieth century, Locke's greatest influence came through books other than the Second Treatise--particularly, the Essay Concerning Human Understanding, the Letter Concerning Toleration, Some Thoughts Concerning Education, The Reasonableness of Christianity, and A Paraphrase and Notes on the Epistles of St. Paul.  For me, this is the most instructive feature of her book.

But I don't see how this proves her primary claim that Locke's political teaching had little influence in America prior to the twentieth century.  Her argument here depends on the false assumption that Locke's books other than the Second Treatise do not convey anything about his political teaching.

Many of the scholars that Arcenas relies on have pointed out that all of Locke's books convey some facets of his political thought, so that readers of Locke's books other than the Second Treatise would learn a lot about his political philosophy.  For example, she has drawn a lot from Merle Curti's "The Great Mr. Locke, America's Philosopher, 1783-1861" (1937).  But she says nothing about the fact that Curti indicates that Locke's "liberal" ideas appear in all of the books that Americans read (see Curti, 111, 115, 119-21, 131, 134-35, 151).  If she thinks Curti is wrong about this, she should explain why.

Similarly, Arcenas gives an account of Leo Strauss's interpretation of Locke's political teaching.  But she does not notice that Strauss's study of Locke's political thought in Natural Right and History cites not only the Two Treatises, but also the Essay Concerning Human Understanding and The Reasonableness of Christianity.

Consider the case of Locke's Letter Concerning Toleration.  Arcenas emphasizes the importance of this book as one of the most widely read of Locke's books.  But she doesn't notice that much of this book summarizes the political teaching of the Second Treatise.  One of many possible examples is the passage of Toleration where Locke speaks of how men must leave the state of nature and enter into a society and establish a legislative power that will secure their life, liberty, and properties (see Letter Concerning Toleration, ed. Mark Goldie [Liberty Fund, 2010], 46-47).

My conclusion from all of this is that Arcenas's book is an indispensable history of America's reception of Locke, but her attempt to minimize the influence in America of Locke's political thought fails.

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 . . .