Locke and Natural Law?

How is one to make sense of John Locke's political philosophy today? Although Locke's politics are widely understood to be the very beginnings of political liberalism, I wonder what is generally understood about his thought. To be perfectly honest, I understand little myself. But I thought it would be beneficial to ask tonight: what is Locke's philosophy of the state of nature, and, what does Locke say about slavery or 'the Indians'?  These are questions that I have only begun to ask and answer. (In other words, these are questions that begin with the basic inquiry regarding which particular exclusions make Locke's thought possible at all; - that is, what thought or existences is he arguing against?). I still wonder if it is important to understand Locke at all, and what can be gained by a close reading of his work?

In any case, I found the following remarks to be perfectly put, precisely in regards to both the question of "Indians," as well as that of the state of nature. In the Second Treaties of Government Locke writes:

I doubt not but this will seem a very strange Doctrine to some Men: but before they condemn it, I desire them to resolve me, by what Right any Prince or State can put to death, or punish an Alien, for any Crime he commits in their Country. 'Tis certain their Laws by vertue of  any Sanction they receive from the promulgated Will of the Legislative, reach not a Stranger. They speak not to him, nor if they did, is he bound to hearken to them. The Legislative Authority, by which they are in Force over the Subjects of that Common-wealth, hath no Power over him. Those who have the Supream Power of making laws in England, France or Holland, are to an Indian, but like the rest of the World, Men without Authority: And therefore if by the Law of Nature, every Man hath not a Power to punish Offences against it, as Magistrates of any Community, can punish an Alien of another Country, since in reference to him, they can have no more Power, then what every Man naturally may have over another (Cambridge U. Press, 1960, 313).

It seems to me that Locke is arguing against the logical possibility of international (or even natural) law in this passage? Does this suggest that sovereignty is always (something like) national and local in Locke's view? Does this characteristic have important implications or consequences?

Comments

[voyou]

"if by the Law of Nature, every Man hath not a Power to punish Offences against it"

The "if" here could be read in two ways; as "given that..." or as a counterfactual. If we read the "if" in the former sense, we get an argument from Locke that "England, France or Holland" have no authority over an "Indian." I take it this is how you're reading the passage? If not, maybe I'm not understanding what you mean when you say that this passage provides an argument against international (and natural) law.

It seems to me to make more sense to read the passage the other way round. Locke has just asserted that natural law does give everyone a right to punish breaches of natural law, and this paragraph is supposed to give us a justification, that is, the "if" is intended as a counterfactual. Read this way, the conclusion that European states have no power over Indians isn't what Locke is actually arguing for, on the contrary, it's a reductio ad absurdam; the idea that European powers wouldn't have rights over the Indians is so obviously false that any view that implies it (viz, the view that natural law includes no right of punishment) must also be false.

What does strike me as interesting here is what's going on in the move from individuals in the state of nature to sovereigns in an international context. If a sovereign has rights over people outside that territory, which are based on natural rather than positive law, does that make the sovereign in some sense natural?

[Craig]

As an aside, Locke does maintain that relations between sovereigns are governed by natural law and natural right rather than by positive law. The point Locke is making here is that the sovereign has the right to punish those who were (or are) not party to the establishment of the state. The proof of this is that foreigners do not have immunity from the laws. But, when the foreigner is punished, it isn't in accordance with positive law, but with natural law.

[Barret]

Voyou: I was referring to "the former," and, even though I didn't provide much context in the post, my question only asked about the nature of reference to something beyond state authority. International law isn't "inter" "national," (although it does assume that all men are equal (as well as sovereigns as you identify) in the state of nature), but involves a reference to something beyond anything resembling a nation or state. This reference is, of course, God. So, there is no basis of a "Legislative Authority" to govern others (it "hath no Power over him"). Locke only argues that states and individuals have the right to self-assertion or preservation. Am I reading this properly?

Craig: If I understand you correctly, Natural law is what makes it possible to consider the "Right any Prince or State" has to put to death, "or punish an Alien." But, still, I'm not sure how this follows from, as you wrote,: "The point Locke is making here is that the sovereign has the right to punish those who were (or are) not party to the establishment of the state." I don't think there is any identification of a sovereign or inherent right within a state to punish extra-territorial beings (Indians in this case), but it must refer to an externality. Is this correct?

[Adam Thurschwell]

Barret, so glad you posted this; it is exactly on point with something I've been meaning to post here for months and haven't been able to make the time for yet. As to your concluding question, I agree with Craig that in fact Locke (like virtually all of his contemporaries) accepted the law of nations as legitimate as well as the sovereign's power to punish conduct by foreigners, and is thus working backward from a (self-evident to him) right of sovereignty to a (by necessary implication) pre-existing natural right in the individual parties to the social contract to punish violations of natural law (the only law available for transgression and punishment in the pre-contractarian state of nature). Thus, I think Voyou is right on when he suggests that what's "interesting here is what's going on in the move from individuals in the state of nature to sovereigns in an international context." In fact what's going on is that, for Locke (and it turns out for the other original social-contractarian political philosophers of the same historical vintage), it turns out that the model for individuals in the state of nature -- that is, the original contracting parties whose contract brings the soverein into existence for the first time -- is the really-existing sovereigns themselves in the "state of nature" that exists in their relations under norms of international law. This is not, by the way, my argument but the argument made by the intellectual historian Richard Tuck in his book The Rights of War and Peace (Oxford 1999). He begins with the midieval and early Renaissance scholastic and humanist traditions of international law scholarship and doesn't get to Locke until he's gone through Grotius, Hobbes and Pufendorf, but this is his precise point. He refers to this very passage in Locke in the context of pointing out that Grotius made the identical argument -- deducing a natural right to punish from the sovereign right to punish foreigners -- in a text that Locke could not have read, since it wasn't discovered and published until the late 19th Century.

In any event, I recommend the Tuck book if you're interested in pursuing this. My own angle on this comes from my current interest in the relationship between the sovereign's right to death (capital punishment in particular) and the essential attributes of political sovereignty, and so for me it's particularly fascinating that this whole quasi-circular turn in the contractarian justification of sovereignty passes through the natural right to punish in particular (and not some other natural right). In any event, hopefully I'll have the time to post more half-formed thoughts on this in the near future, but I appreciate it that others are finding the same issue rising to the surface at this historical moment . . . .

[NaturalBornEasement]

Locke forgets Hobbes continually: his presumed, pre-society "right" itself a conjecture, and rather moot (in a state of nature a "right" equals something like a broad-axe). In Hobbesian terms, whether an Alien had rights or not--the jurisdiction issue--would be decided during the contract formation (a foreigner could by peacefully entering a country agree via contract to abiding by its laws). Most countries obviously do assume jurisdiction (a type of sovereignty) over foreigners and illegal aliens: an illegal who commits a murder while in US faces murder charges.

Locke apparently upholds a rather odd, somewhat utopian view that foreigners are not necessarily subject to laws of the countries they travel in. Yet that might have been some type of backhanded justification for deportation or eviction: Locke had no problem arguing that colonialists in America had the right to seize the natives' lands, since the natives were not really citizens (nor fully humans, perhaps). Locke's no Rousseau.

[Craig]

I'd also recommend Tuck's Natural Rights Theories: Their Origin and Development (CUP, 1979). It was his dissertation, I believe, written under Skinner's supervision.

[Barret]

I would like to thank each of you for the comments and advice on this matter. I'm going to take a look at Tuck's work, as well as delve into the problem of the state of nature in the seventeeth century theorists in a much more substantive matter. I apologize for my ignorance regarding this topic in advance.

I have also been recently directed to Ian Hunter's book, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany (2001).

[Malatesta]

Tame, tepid, ball-less, superficial: the LS usual fare. Even Zizek rants or Dasein laments were preferable.