Showing posts sorted by relevance for query Locke state of nature. Sort by date Show all posts
Showing posts sorted by relevance for query Locke state of nature. Sort by date Show all posts

Tuesday, July 27, 2021

The Evolutionary Science of Locke's State of Nature: A Response to Seabright, Stieglitz, and Van der Straeten

 I have written a long series of posts on the evolutionary science of John Locke's state of nature (here, here, here, here, here, and here).  I have argued that the idea of the state of nature in the writings of Hobbes, Locke, and Rousseau is an example of an empirical claim by political philosophers about human nature and human history that can be evaluated by the Darwinian science of how human beings originally evolved as hunter-gatherers, which we can identify as the evolutionary state of nature.  I have said that if we apply that evolutionary science of hunter-gatherer life to the philosophic debate over the state of nature, we can see that Hobbes was partly right, Rousseau was mostly wrong, and Locke was mostly right.

I was pleased, therefore, to see a recent article by Paul Seabright, Jonathan Stieglitz, and Karine Van der Straeten--"Evaluating Social Contract Theory in the Light of Evolutionary Social Science," Evolutionary Human Sciences 3 (2021): e20--which uses the evolutionary science of small-scale societies to evaluate what Hobbes, Locke, and Rousseau say about the state of nature.  They see these philosophers as distinguishing between human beings living in a state of nature and human beings living in societies with formal institutions, and they see "formal institutions" as institutional norms (usually written) that are enforced by legal and political authorities.  They accept this distinction because they see the state of nature as the condition of human life in foraging bands before the invention of agriculture, which was followed by large-scale societies with formal legal and governmental institutions.  But they conclude that these three social contract philosophers were wrong about the state of nature as studied by evolutionary scientists, because these philosophers "overlooked the central role of informal social institutions in governing human behavior" (1).  

While this criticism is partly true for Hobbes, and mostly true for Rousseau, it is not true at all for Locke.  This should be clear to any careful reader of their article who notices that their specific criticisms are directly more at Hobbes and Rousseau than at Locke.  And any careful reader of Locke will know that he recognized the importance of "informal social institutions" in the state of nature, which has been confirmed by modern scientific studies of the human hunting-gathering way of life.

Seabright and his colleagues rightly criticize Hobbes and Rousseau for describing life in the state of nature as "solitary," because in fact hunter-gatherers always have a complex social life.  But they also note that Locke never uses the word "solitary," and "his description of the state of nature does not seem to indicate solitude at all" (17).

They explain:

"Across small-scale societies there is a modal pattern of social organization characterized by a three-generational system of resource flows (including co-resident offspring, parents and grandparents), a sexual and age-graded division of labor within long-term adult pair bonds . . . . and high levels of cooperation between kin and non-kin . . . . Human hunter-gatherers were probably highly inter-dependent long before the invention of agriculture, contrary to Rousseau's claim that agriculture and its associated divisions of labor paved the way for high inter-dependencies."

"Despite the popular idea that hunter-gatherers are organized in a system of small groups of co-residing kin, their social structure is actually quite fluid and comprises networks of interaction between spatially and genetically distant individuals that extend far beyond a local residential group" (11-12).

Seabright and his colleagues don't recognize that Locke sees all of this.  He speaks of the human family in the state of nature as the "first society" (Second Treatise, sec. 77), first the conjugal bonding of husband and wife based on a "voluntary compact," and then the parental care of their children.  He sees a division of labor based on sex and age.

Locke also sees social networks of cooperation and exchange extending beyond the family.  In Locke's state of nature, there are networks of exchange and trade based on "promises and compacts" (ST, sec. 14).  This extended order of cooperation is governed by social norms that Locke identifies as the "law of nature."

Seabright and his colleagues see that social norms are enforced among hunter-gatherers through violent punishment (including capital punishment), reputational costs for those who violate the norms, and third party mediation of disputes.  But they don't recognize that Locke also sees this in his state of nature, where everyone 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 praise and blame, and where disputes are often settled by those known to be good mediators (ST secs. 6-14, 108; Essay Concerning Human Understanding II.28.5-14).

Locke's understanding of the state of nature comes largely from his study of the European reports about the American Indians, because he assumed that "in the beginning all the World was America" (ST 49), and that the American Indians provide a "Pattern of the first Ages in Asia and Europe" (ST 108).  And while it is true that Locke did not have the extensive ethnographic record of hunter-gatherers that we have today, the books in his library about the American Indians did give him a good grasp of hunting-gathering societies.

So, for example, he saw in those reports that foraging bands were sometimes at war with one another, and so he did not make Rousseau's mistake of assuming that the state of nature was utterly peaceful (ST secs. 107-108; A Letter Concerning Toleration, ed. Mark Goldie, Liberty Fund, p. 76).  Hobbes was partly right about the state of nature insofar as he saw this propensity to war.  He was partly wrong, however, in that he did not see, as Locke did, that most of the time hunter-gatherers can live by social norms of peaceful cooperation.

Although Locke's state of nature is a roughly egalitarian condition, in the sense that everyone is equally free from the arbitrary absolute power of anyone else, some people have higher status or prestige than others.  Seabright and his colleagues write:

"Status hierarchies do indeed exist across diverse small-scale societies, but rather than resulting simply from variation in material wealth, they are often linked to relational wealth (i.e. social ties in marriage, food-sharing, and other cooperative networks) and embodied wealth (i.e. physical and cognitive abilities, such as strength and knowledge/skill, underlying variation in food production and reproductive success)" (13).

They do not recognize, however, that Locke sees all of these status hierarchies in his state of nature (ST secs. 54, 74, 94, 105).  While Locke saw the American Indians in the state of nature as showing relative equality compared with other societies, he also saw that all human societies will have some inequality due to individual differences in age, birth, talents, social networks, and luck, which will make some individuals more highly ranked than others.  So, for example, among hunter-gatherers, some individuals would inevitably distinguish themselves as skillful hunters or as leaders of their groups.  Borgerhoff Mulder and her colleagues (2009) confirmed this, and concluded that those Marxist anthropologists who wanted to find "primitive communism" in foraging societies were mistaken, because hunter-gatherers have a Gini coefficient of around 0.25.  I have written about this in a previous post.

Nevertheless, the reputation of hunter-gatherers for being egalitarian is warranted when they are compared with herding and farming societies that have much higher Gini numbers.  And yet, among modern nation-states, those that have Lockean liberal social orders have lower inequality.  The United States has a slightly lower Gini number than the small-scale herding and farming societies.  And the Nordic capitalist welfare states--such as Denmark, Norway, and Finland--have Gini numbers about the same as the foraging societies.  (I have written about the Nordic social democracies as liberal regimes here.)  This suggests that modern Lockean liberal social orders approximate the equal liberty of human beings in the state of nature.

In all of these ways, the evolutionary science of the hunter-gatherer way of life as the original social life for our human ancestors confirms Locke's account of the state of nature; and thus it confirms the Lockean liberalism based on this view of the state of nature.

In Spinoza's Theological-Political Treatise, perhaps the first full defense of modern liberal democracy, he declared that the democratic state is "the most natural state," because it approaches most nearly the equal liberty of human beings in the state of nature.

Darwinian evolutionary psychology can confirm this by showing that the social life of our hunter-gatherer ancestors manifested the individual liberty and equality that liberal theorists have attributed to the state of nature.  And therefore the liberal conception of government as instituted among men to secure the individual rights that first arose in the state of nature might indeed be "the most natural state."

Foragers assert their individual autonomy and liberty in resisting the attempts of anyone to establish dominance over them.  So the liberal ideas of equal liberty and dignity for all individuals and resistance to the sort of dominance hierarchies established in agrarian states (with extractive or limited access institutions) can be understood as appealing to the original liberalism of the state of nature.

This kind of Darwinian liberal thinking is suggested in the writings of people like Alexandra Maryanski, Jonathan Turner, Paul Rubin, Christopher Boehm, and Christian Welzel.

Sunday, September 23, 2018

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.

Friday, September 09, 2022

The State of Nature in the American Revolution: Confirming Locke, Denying Hobbes

In his Second Treatise, John Locke identifies five ways in which the state of nature arises in human history.  First, when our hunter-gatherer ancestors lived without formal institutions of government, they were living in a state of nature, in which all human beings are equally free; and during Locke's lifetime, he saw that the foraging bands of native Americans were still living in such a state of nature (ST, 49, 101-111).  

Second, people living under a government can choose to leave that country, and thus revert to a state of nature, and then they can emigrate either to another society with a ruling government or to a vacant part of the world where they can set up a new government (ST, 113-18, 121).  

Third, whenever people living under a government find themselves under the immediate attack of aggressive individuals, and there is no way to call in the protection of government, then the people under this threat have the natural right to momentarily enter the state of nature, so that they can reclaim "the executive power of the law of nature" to punish those who violate that law of nature, which includes the natural right of killing in self-defense (ST, 19).  

Fourth, whenever a government is dissolved, the people revert back to the state of nature, and they have the right to establish a new government by consent; this includes the dissolution of government by popular rebellion against a government that has become despotic (ST, 211-43).

Fifth, all the rulers of independent governments around the world are in a state of nature in their international relations because there is no world government over them (ST, 14).

In all five of these ways, we can see Locke's state of nature in the American Revolution.  Much of the evidence for this is conveniently collected in a book by Mark Somos--American States of Nature: The Origins of Independence, 1761-1775 (Oxford University Press, 2019).


1.  THE ORIGINAL STATE OF NATURE

First of all, many American colonial thinkers explicitly recognized that many of the Native American Indians were living in a state of nature as described by Locke.  As early as 1725, John Bulkley, a prominent clergyman and surgeon in colonial Connecticut, quoted from Locke's account of the state of nature in the Second Treatise and argued that the "Aborigines of this Country" were living in this state of nature.  Bulkley also followed Locke's lead in applying Jose de Acosta's Natural and Moral History of the Indies (1604) to the Native Americans.  (Bulkley's writing can be found in Exploring the Bounds of Liberty: Political Writings of Colonial British America from the Glorious Revolution to the American Revolution, eds. Jack P. Greene and Craig B. Yirush [Liberty Fund, 2018], I: 595-627.)

In 1768, the Massachusetts House of Representatives sent a letter to their colonial agent in London, which argued that the colonists had a natural right to property, so that the British Crown could not take their property without their consent.  James Otis and Samuel Adams were probably the primary authors of this letter.  In one passage, they wrote:

"Property is admitted to have an existence, even in the savage state of nature.  The bow, the arrow, and the tomahawk; the hunting and the fishing ground, are species of property, as important to an American savage, as pearls, rubies, and diamonds ae to the Mogul, . . . . And if property is necessary for the support of savage life, it is by no means less so in civil society" (quoted in Somos, 68, n. 29).

Particularly interesting here is the recognition that the American Indians had a natural claim to property in their hunting and fishing grounds.  Bulkley had argued that the Indians did not own the land on which they hunted and fished, because they had not invested their labor in the land by cultivating it for agriculture; and consequently, the colonists in Connecticut could claim the land that they had appropriated for farming.

Remarkably, the freedom that the American Indians enjoyed in their state of nature was so attractive that many of the English and French settlers chose to become Indians--"White Indians" they were called.  Hector de Crevecoeur observed that "thousands of Europeans are Indians, and we have no examples of even one of those Aborigines having from choice become Europeans!"  Some of the Europeans who became Indians said that they did this because they had "the most perfect freedom."  In his study of the White Indians, historian James Axtell suggested that "it may well be that the adults who chose to become Indians did so for some of the reasons that many of their countrymen turned to revolution" (The Invasion Within: The Contest of Cultures in Colonial North America [Oxford University Press, 1985], 302-303, 327, 377).

In applying the Lockean understanding of the state of nature to the American Indians, the American colonists saw that in that state of nature all men were equally free and independent, in that no man could rule any other man without that man's consent.  They saw that this natural equality of liberty did indeed apply to all men, including slaves, and to all women as well as men.  This radical conception of human equality of rights was clearly affirmed, for example, by James Otis in his 1761 speech in Paxton's Case and in 1764 in his Rights of the British Colonies Asserted and Proved.


2.  EMIGRATING TO THE STATE OF NATURE

Some of the colonists argued that it was this equal freedom in the state of nature that had drawn so many of the original European settlers to leave Great Britain and go to America, where they could revert to the state of nature.  This would illustrate what Locke identified as the second way in which people could enter a state of nature by leaving their native country to find freedom somewhere else.  For example, in 1765, Dennys Deberdt, who had just been appointed the colonial agent for Massachusetts in London, wrote a public letter that claimed that all the colonies, except Georgia and Nova Scotia, were settled by Englishmen fleeing oppression and seeking "civil and religious liberties," and that when they moved to America, "they were then in a state of nature, under no civil government, but what they form'd themselves."  Their colonial charters should therefore be understood as "compacts" with Britain to which they had freely consented.


3.  SELF-DEFENSE IN THE STATE OF NATURE

The revolutionary colonists also contended that once Great Britain violated those original compacts with the colonies and launched an attack on the rights of the colonists--their natural rights and their rights as Englishmen--the colonists could rightly invoke their natural right of self-defense in the state of nature, which was Locke's third way in which people could return to a state of nature.  The American colonists, however, expanded the individual right of self-defense to a collective right of the American people to defend their community against attack.

One of the clearest statements of this idea came some years after the Revolution in James Wilson's Lectures on Law (1790-1791):

"The defence of one's self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law.  This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man; it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation--of his wife, of his parent, of his child, of his master, or his servant: nay, it extends to the person of everyone, who is in danger; perhaps, to the liberty of everyone, whose liberty is unjustly and forcibly attacked.  It becomes humanity as well as justice" (Works of James Wilson, ed. Robert Green McCloskey [Harvard University Press, 1967], 2: 609).

Thus, the people acting as a community could exercise their natural right of self-defense in defending their liberty from unjust attack.

The revolutionary colonists also protested against King George III's attempts to disarm the colonists as a violation of their natural rights and their rights as Englishmen.  That individuals have a natural right to momentarily enter a state of nature in defending themselves against attacks has been recognized by the U.S. Supreme Court as a natural right that is also a constitutional right.  This was most clearly stated in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), which ruled that cities and states that ban handguns have violated the natural right to keep and bear arms for self-defense, a natural right protected in the Second and Fourteenth Amendments.

In the McDonald decision, Justice John Paul Stevens wrote a dissent in which he argued that recognizing the right of individuals to carry handguns for self-defense is contrary to the state's monopoly on legitimate violence.  In support of this argument, he quoted from section 128 of Locke's Second Treatise, which speaks of the powers individuals have in the state of nature that they must give up when they enter civil society.  In the state of nature, a man has the power "to do whatsoever he thinks fit for the preservation of himself and others within the permission of the Law of Nature."  But when he joins a particular political society, he "gives up" this power that he had in the state of nature.  But here Stevens ignores what Locke says in explaining that a man "gives up" natural rights only "the better to preserve" them in a civil society, and that a man in civil society may kill a thief or anyone who acts as an aggressor threatening his life, in circumstances where there is no way to call in officers of the government for protection (ST, 18-19, 131).


4.  IN THE STATE OF NATURE AFTER THE DISSOLUTION OF GOVERNMENT

In 1774, the American colonists were divided by a debate between Patriots and Loyalists over the state of nature.  The Patriots believed that since the British imperial government over the colonies had been dissolved, the Americans had been thrown back into a state of nature, in which the American people had the natural authority to establish a new government to secure their natural rights.  The Loyalists believed that Parliament still had governmental authority over the colonies, and therefore the Americans were not in a state of nature, although there was a need to settle the American disputes with Parliament in a way that would preserve American liberty while maintaining Parliamentary rule over the colonies.

On September 5, 1774, the Continental Congress met in Philadelphia for the first time.  On the next day, they began their debates; and Patrick Henry of Virginia was the first to speak.  Here is what John Adams wrote in his Diary for that speech:

Mr. Henry. Government is dissolved. Fleets and Armies and the present State of Things shew that Government is dissolved. -- Where are your Land Marks? your Boundaries of Colonies.

We are in a State of Nature, Sir. I did propose that a Scale should be laid down. That Part of N. America which was once Mass. Bay, and that Part which was once Virginia, ought to be considered as having a Weight. Will not People complain, 10,000 People Virginians have not outweighed 1,000 others.

I will submit however. I am determined to submit if I am overruled.

A worthy Gentleman Ego near me, seemed to admit the Necessity of obtaining a more Adequate Representation.

I hope future Ages will quote our Proceedings with Applause. It is one of the great Duties of the democratical Part of the Constitution to keep itself pure. It is known in my Province, that some other Colonies are not so numerous or rich as they are. I am for giving all the Satisfaction in my Power.

The Distinctions between Virginians, Pensylvanians, New Yorkers and New Englanders, are no more.

I am not a Virginian, but an American.

Patriots like John Adams, Samuel Adams, and Roger Sherman agreed with Henry in arguing that they were in a state of nature, and that they would need to establish a new government.

On September 8, Joseph Galloway spoke for the Loyalists in denying that the colonists were in a state of nature.  Here is what Adams wrote in his Diary:

Mr. Galloway. I never could find the Rights of Americans, in the Distinctions between Taxation and Legislation, nor in the Distinction between Laws for Revenue and for the Regulation of Trade. I have looked for our Rights in the Laws of Nature -- but could not find them in a State of Nature, but always in a State of political Society.

I have looked for them in the Constitution of the English Government, and there found them. We may draw them from this Soursce securely.

Galloway went on later to propose a Plan of Union, which would create a Colonial Parliament that would act together with the British Parliament in legislating for the colonies.  The Congress voted to reject this plan, and the plan was even stricken from the records of the Congress's proceedings.

Loyalists like Galloway had to contend either that the state of nature never existed, or that while it could exist, it was a dangerous condition of violent disorder, and therefore should be avoided at all costs.  In taking the second position, they assumed a Hobbesian view of the state of nature as a "war of all against all."

Patriots like Henry had to contend that the state of nature was a reality of human history, and that it could be a state of social order in which people act as a community capable of establishing a new government.  Thus, the Patriots assumed a Lockean view of the state of nature as a social state of peace, even if it could become a state of war in the absence of government.

The Patriots thought that the experience of Massachusetts in 1774 confirmed their view of the state of nature.  As a result of Parliament's passage of the Coercive Acts in the spring, the government of Massachusetts under its colonial charter was dissolved, and Massachusetts was reduced to a state of nature; but the people of Massachusetts organized themselves through hundreds of local meetings and committees of correspondence to create extralegal governing bodies that could send delegates to the Continental Congress, which could then become a provisional government for a union of the colonies.

We can see here that the fundamental debate in the American Revolution and American Founding was over the state of nature.

This debate continued in some form throughout the Founding period.  For example, when the Constitutional Convention of 1787 proposed the ratification of its Constitution as a substitute for the Articles of Confederation, some of the opponents of ratification argued that the Constitutional Convention did not have the legal authority to frame and propose this Constitution.  They made two arguments.  First, in February of 1787, the Congress of the United States under the Articles of Confederation had recommended a Convention that would propose alterations in the Articles.  But then the Convention in Philadelphia proposed a Constitution that consisted not of alterations in the Articles but a total substitution for the Articles, which went beyond the authorization of the Congress.  Secondly, while under the Articles of Confederation (Article XIII), any "alteration" of the Articles would have to be ratified by the legislatures of all thirteen of the states, the Constitutional Convention proposed that the new Constitution should be submitted to a convention of delegates "chosen in each State by the People thereof," and that the Constitution would come into effect as soon as the conventions of nine states had ratified it.  Far from being a mere alteration or revision of the Articles of Confederation, the Constitution of 1787 looked like a revolutionary overthrow of the Articles, with an appeal to the authority of the People in a state of nature to establish a new government to better secure their natural rights.

In The Federalist, James Madison responded to this objection by in effect admitting that the Constitution Convention was proposing a Second American Revolution based on the principles that justified the First American Revolution.  He did this in two ways.  First, he invoked the revolutionary language of the Declaration of Independence.  He claimed to speak for those at the Convention:

"They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory, the transcendent and precious right of the people to 'abolish or alter their governments as to them shall seem most likely to effect their safety and happiness;' since it is impossible for the people spontaneously and universally, to move in concert towards their object; and it is therefore essential, that such changes be instituted by some informal and unauthorised propositions, made by some patriotic and respectable number of citizens" (no. 40).

In doing this, the Framers of the Constitution were "recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed" (no. 43).

Second, Madison says that the Framers of the Constitution must have understood that what they were doing in 1787 was similar to what was done by the American Revolutionaries in 1774 to 1776:

"They must have recollected that it was by this irregular and assumed privilege of proposing to the people plans for their safety and happiness, that the States were first united against the danger with which they were threatened by their antient government; that Committees and Congresses, were formed for concentrating their efforts, and defending their rights; and that Conventions were elected in the several States, for establishing the constitutions under which they are now governed; nor could it have been forgotten that no little ill-timed scruples, no zeal for adhering to ordinary forms, were any where seen, except in those who wished to indulge under these masks, their secret enmity to the substance contended for" (no 40).

Notice that without using the term state of nature, Madison implicitly affirms that the Framers of the Constitution had entered a state of nature in which the People had the natural right to dissolve the Articles of Confederation and establish a new national government through the Constitution that would better secure their rights.

And if we see the Constitution as the Second American Revolution, should we also see the Civil War and the Civil War Amendments (13-15) as the Third American Revolution.  Because didn't America need that Third Revolution to fulfill the original promise of the First Revolution to secure equality of rights for all men and women, which required the Civil War as an "appeal to Heaven" and new amendments overturning the constitutional protections for slavery and establishing the "equal protection of the laws"?


5.  INTERNATIONAL RELATIONS AS A STATE OF NATURE

The Declaration of Independence concludes with the Continental Congress declaring "that these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."

Just as in the state of nature, all individuals are free and independent, and so any social order is based on the mutual consent of those individuals, likewise in the international state of nature, all states are free and independent, and so any international order is based on the mutual consent of states.  So here we see how for Locke, and other theorists of the state of nature, international relations are a fifth way in which human beings can be in a state of nature.

In their thinking through this idea, the American Revolutionaries were much influenced by their reading of Emer de Vattel's The Law of Nations, or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns (1758).  Vattel's fundamental principle was that the law of nations was the law of nature of individuals in the state of nature applied to states.

Much of the modern theorizing about international relations and international law has turned on this idea of international politics as a state of nature.


CONCLUSION

In the American Revolution, we can see the five ways in which the Lockean state of nature appears--in the original human condition of hunter-gatherers, in human emigration from an established government, in individual and collective self-defense against attacks, as a consequence of the dissolution of government, and in international relations.

We can also see here that the American Revolution was a historical experiment that confirmed Locke's account of the state of nature as superior to Hobbes's.  For Hobbes, the state of nature must always be a state of war; and therefore it must be avoided at all costs.  For Hobbes, any government is better than none, because peace is always better than war.  

But for Locke, the dissolution of government does not necessarily lead to the dissolution of society and the state of war.  Although there is always the risk that it will collapse into a state of war, a state of nature can be a state of peaceful cooperation as people organize themselves into a social order without any formal government.  And therefore, even though the state of nature is risky, there are circumstances in which it can become a sanctuary from a condition that is even worse--the loss of liberty under the rule of an oppressive government.  For Locke, people consent to government with the trust that it will secure their natural rights.  When a government has violated that trust, the government can be dissolved, and the people can regroup as a society in the state of nature and establish a new government.  The American people did that in the American Revolution.

 

Thursday, August 18, 2022

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.

Saturday, August 26, 2017

West on the American Founding (7): Zuckert and the Evolutionary State of Nature

West and Zuckert agree that the fundamental idea for the natural rights philosophy of the American founders was the state of nature.  West writes: "The state of nature is the basis of the founders' understanding of politics.  If human beings are born free and equal in a natural state, subject only to the laws of nature, then government is a product of human making to secure the equal natural rights of the citizens" (409).  Zuckert sees the Declaration of Independence structured as a syllogism, in which the second paragraph states the major premises arranged in a temporal sequence corresponding to the history of human political experience, which begins with the pre-political condition in the state of nature, where all men are free and equal and endowed with certain unalienable rights (18-19).  If that is not true, the Declaration's syllogism fails.

Many critics of social contract theory and of the Declaration of Independence have denied the historical reality of this state of nature.  After all, all human beings have been born into societies, subjected to the authority of their parents and others in their society.  Human infants living a solitary life would soon die.

Although this criticism might apply to Rousseau's account of the state of nature as an utterly asocial condition of solitary individuals, it does not apply to Locke's account of the state of nature as human beings living in social bands of hunter-gatherers without formal government or laws but with customary norms of conduct that constitute a law of nature.  For Locke, the historical reality of this state of nature is evident in the life of the American Indians, who lived the sort of hunting-gathering way of life that must have characterized our ancient human ancestors: "In the beginning, all the world was America."

As I have indicated in some other posts, Locke studied the reports of the American Indians living in foraging bands as evidence of how human beings originally lived in a state of nature prior to the turn to agriculture and the establishment of government, and most of what Locke inferred has been confirmed by modern research in evolutionary anthropology. 

Here Locke was following the lead of ancient authors like Lucretius and Dicaearchus, who saw that the first human beings must have lived as hunter-gatherers, which Dicaearchus called "the state of nature."  Although the Declaration of Independence does not use the term "state of nature," the idea is implied in the claim that human beings are naturally equal in their liberty until "governments are instituted among men."

Remarkably, however, Zuckert argues that "the Declaration does not present literal or empirical history, but moral history." "The Declaration is not speaking of some primordial prepolitical condition in which human beings wander the forests 'lonely as a cloud'" (23).  The Declaration's history is actually "mythic history" (145). But then he seems to contradict this when he says that the Declaration is exploring "the primeval human condition, the condition prior to the establishment of government and prior to all humanly established laws and rights" (102).

Moreover, Zuckert recognizes that Jefferson, like Locke, thought that the American Indians showed the historical reality of the state of nature (68-69).  According to Jefferson, the Indians manifest "the circumstance of their having never submitted themselves to any laws, any coercive power, any shadow of government.  Their only controls are their manners, and that moral sense of right and wrong, which, like the sense of tasting and feeling, in every man makes a part of his nature.  An offense against these is punished by contempt, by exclusion from society, or, where the case is serious, as that of murder, by the individuals whom it concerns" (Notes on the State of Virginia, Query XI). 

Jefferson's insight here into the evolution of the moral sense in foraging bands has been confirmed by the evidence gathered and analyzed by evolutionary anthropologists like Christopher Boehm, who see the evolution of morality through indirect reciprocity, or what Locke called "the law of reputation," which has been the subject of a post.

From the evolutionary anthropology of the 18th century Scottish philosophers and historians, Jefferson adopted the "four stages theory" of human evolutionary progress--hunting, pastoral, agricultural, and commercial (see Jefferson, Letter to James Madison, Jan. 30, 1787; Letter to William Ludlow, Sept. 6, 1824; and Ronald Meek, Social Science and the Ignoble Savage, 1976).

West quotes a remark by John Adams that West takes as expressing a "view shared by all the founders" (103):
"Men, in their primitive conditions, however savage, were undoubtedly gregarious; and they continue to be social, not only in every stage of civilization, but in every possible situation in which they can be placed.  As nature intended them for society, she has furnished them with passions, appetites, and propensities, as well as a variety of faculties, calculated both for their individual enjoyment, and to render them useful to each other in their social connections.  There is none among them more essential or remarkable, then the passion for distinction. A desire to be observed, considered, esteemed, praised, beloved, and admired by his fellows, is one of the earliest, as well as keenest dispositions discovered in the heart of man" (Discourses on Davila, II).
The natural sociality of human beings, even in the primitive state of nature without government, and the evolution of a natural moral law from the natural social concern for praise and blame have been corroborated by modern research in evolutionary anthropology.

West argues that the American founders did not see the state of nature as something found only in the distant primeval past, because they thought it was an ever present reality.  So, for example, when the Americans declared their independence from Great Britain, they momentarily entered the state of nature until they instituted a new government over them.  Moreover, in affirming the natural right to revolution, the Americans understood that people could enter the state of nature at any time in the future when they might judge that their government was not securing their natural rights, and that they must invoke their natural right to alter or abolish their government, and institute new government that might seem to them most likely to effect their safety and happiness by securing their natural rights.

I agree with this, but I also believe that Locke was correct in thinking that the only way to explain how these natural rights are really natural for human beings is to see how they express the primordial human nature shaped in the original state of nature of our hunter-gatherer ancestors.