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A Lockean Theory of Agency and Rights

Bryan Register

Forum: Graduate Course Essay, University of Texas at Austin

Within libertarian intellectual circles, there is an influential line of argument connecting libertarianism about the will with libertarianism about society. Tibor Machan presents a paradigm case of this position. He proposes that, if all events are determined (by, for instance, the laws of nature operating over the distribution of physical entities and forces at a given time), then "...our actions are not free. We are not capable of bona fide choice, of taking the initiative..." (Machan, xvi) Why should this matter for politics? Because "...the notion that you can make up your own mind and that you ought to be respected as a being who can not only make up his own her mind but can also use it, is indispensable to the notion of individualism" (Machan, 90), which is in turn indispensable to political liberty. For this tradition of double libertarianism, rights are justified because they protect the autonomous, unmoved movements of persons. If our actions turn out to be determined, then the autonomy which rights had sought to protect disappears.

I have two concerns with this line of argument, which I will very briefly sketch without attempting to provide a serious defense. First, I am convinced that libertarianism about free will is false, but that libertarianism about society is true. So I worry that the case for the free society might be weakened by its connection to a false ontological thesis. Second, to my knowledge, no version of libertarianism about free will avoids both simple indeterminism and agent causation. Simple indeterminism has its obviously stultifying effect on the notions of human responsibility and autonomy. But agent causalism has its own anti-libertarian effects. The agents of agent causation do not appear to be ordinary human beings; agents are not to be identified with any or even all of our bodies, our physical properties, our mental properties, or anything else about us which seems surveyable. (Were they so identifiable, then the deterministic causal laws which operate over everything which is surveyable would eliminate the indeterminism the agent causalist is trying to introduce.) Thus the agent which makes free choices becomes something mysterious. But mysterious ontological entities are like a vacuum which attract properties which certain thinkers find it convenient for them to have. These mythical properties might not be amenable to a libertarian world view; individual rights don't matter much to those who serve, for instance, the will of the agent known as 'the Aryan people'.

The best way to show that political libertarianism does not require foundations in libertarianism about the will is to ground an argument for individual rights in a theory of action which is not libertarian about the will, or which is at least noticeably silent about free will. Such a theory of action, and arguments from it to rights, are suggested in the works of no less seminal a libertarian (or proto-libertarian classical liberal, at least) than John Locke. So the goal of this paper will be to lay out a Lockean theory of action and argue, in ways suggested by Locke, for the existence of individual rights.

Locke on Agency

As soon as we begin to look at Locke's notions of substance and power, we realize that his theory of action will require revision before it can be acceptable. This is because he cannot, strictly speaking, produce an account of action. For Locke, "...all Power relat[es] to action...", of which there are two kinds "whereof we have any Idea, viz. Thinking and Motion...." ( Essay Book II, Chapter XXI, Paragraph 4, lines 10-12) 'Action' here does not refer, as it usually does nowadays, only to the intentional performances by a rational agent, but to any event. More precisely, anything can act so long as a word for that thing might figure as the subject in a sentence asserting that an event has occurred (is occurring, will occur). [1] So Locke divides out powers to act into two varieties: power to think, and power to move.

But there are also two ideas of power, passive and active. Passive power is the power to be influenced by something, while active power is the power to influence something. When fire melts wax, the wax has a passive power (the power to be melted), while the fire has an active power (the power to melt). (E II, XXI, 1-2) Since there are two kinds of action, and two kinds of power, we should have a fourfold division: there should be an active and a passive power with respect to thought, and an active and a passive power with respect to bodily motion. Persons, Locke claims, have both kinds of active power:

...we find in our selves a Power to begin or forbear, continue or end several actions of our minds, and motions of our Bodies, barely by a thought or preference of the mind ordering, or as it were commanding the doing or not doing such or such a particular action. This Power which the mind has, thus to order the consideration of any Idea , or the forbearing to consider it, or to prefer the motion of any part of the body to its rest, and vice versâ in any particular instance is that which we call the Will . (E II, XXI, 5, 11-15)

The will, then, is a pair of active powers. We find these powers "in our selves", and the power is one "which the mind has". This suggests that we identify ourselves with our minds and assign the will to ourselves (or to our minds, if we prefer this term). So it appears that the active powers which are the will are powers of us, or our minds. But Locke implies elsewhere that this doctrine is deeply obscure (and this is why I said that his account could not be acceptable), because our minds are deeply obscure. Our minds are substances, and substances are things distinct from ideas. Hence the best idea anyone has of them, as distinct from the ideas of secondary qualities to which they give rise in him, is a mere "Supposition of he knows not what support of such Qualities, which are capable of producing simple Ideas in us..." [E II, XXIII, 2, 19-20]). Locke allows little place for an idea of the mind distinct from an idea of its causal powers: " the simple Ideas we have taken from those operations of our own Minds, which we experience daily in our selves, as Thinking, Understanding, Willing, Knowing, and Power of beginning Motion [2] , etc. co-existing in some Substance, we are able to frame the complex Idea of an immaterial Spirit ." (E II, XXIII, 15, 15-20) Our idea of the mind, then, is an idea of something which possesses a will, among other things. We are not going to gain much insight about the will by wondering what possesses it, because the answer to this question would be: the thing that possesses, among other things, the will. [3]

Locke's theory of action, then, has this mysterious mental substance sitting at its core. Thus his theory is already defective. However, it seems that substance can be deleted without remainder from Locke's view of action. I'll suggest how below.

Since, for Locke, the will is related, by way of desires, to goodness, let us turn to the notion of the good. He suggests that, "That [which] we call Good , [is that] which is apt to cause or increase pleasure, [4] or diminish Pain in us; or else to procure, or preserve the possession of any other Good, or absence of any Evil ." (E II, XX, 2, 18-20) Locke proceeds to give brief characterizations of a number of passions. [5] Each one is a characterized as a kind of delight, pain, unease, or pleasure. However, it seems that Locke identifies delight with pleasure and unease with pain: "By Pleasure and Pain , Delight and Uneasiness, I must all along be understood... to mean, not only bodily Pain and Pleasure, but whatsoever Delight or Uneasiness is felt by us, whether arising from any grateful, or unacceptable Sensation or Reflection." (E II, XX, 15, 14-18) By slipping with such ease between 'pleasure' and 'delight', and 'pain' and 'unease', Locke establishes synonymy between the members of the respective pairs. Thus, any passion characterized as an unease can be likewise characterized as a pain. This is important when we come to the very important passion which Locke calls desire: "The uneasiness a Man finds in himself upon the absence of any thing, whose present enjoyment carries the Idea of Delight with it, is that which we call Desire , which is greater or less, as that uneasiness is more or less vehement." (E II, XX, 6, 25-28) Desire is unease at the absence of a thing which would cause delight; to put the point another way, desire is the pain we feel at the absence of something which would cause pleasure were it present. If there is a pain which we feel simply in virtue of the absence of a certain pleasure, then the absence of pleasure is a pain — the one called 'desire'. [6] Desire is important for Locke because it is the main (or only) cause of action: "...the chief if not only spur to humane Industry and Action is uneasiness." (E II, XX, 6, 29-30)

When goods are absent, their absence causes the pain known as desire. Desire moves us to action. But the will is the power to initiate action, so we must find out how desire interacts with the will. Locke's clearest doctrine is that one exerts one's will — one's power to initiate thought or motion — to satisfy desire: "The motive, for continuing in the same State or Action, is only the present satisfaction in it; The motive to change, is always some uneasiness : nothing setting us upon the change of State, or upon any new Action, but some uneasiness ." (E II, XXI, 29, 11-14) So one's will is determined by desire — what one wills to do is what one desires — and desire is a pain felt because of the absence of some good. (In fact, one's will might just be one's strongest desire.)

If one's will is determined (by desire), is there any sense in which one is free? Many have wanted to hold that the will is free, but Locke finds this proposal unintelligible: " is as insignificant to ask, whether Man's Will be free, as to ask, whether his Sleep be Swift..." (E II, XXI, 14, 18-20) His argument is that attributing freedom to the will is a category error. This is because liberty, like the will, is a power: " far as a Man has a power to think, or not to think; to move, or not to move, according to the preference or direction of his own mind, so far is a Man Free ." (E II, XXI, 8, 22-25) Liberty is the power to act according to one's preference, where 'to prefer' is synonymous with 'to will': "These Powers of the Mind, viz. of Perceiving, and Preferring, are usually call'd by another Name: And the ordinary way of Speaking is, That the Understanding and Will are two Faculties of the mind..." (E II, XXI, 6, 28-31) So liberty is the power to act as one wills. If liberty were a feature of the will itself, then not only would a power have a power, but the will would have the power to act according to its will. Surely the will does not have a will of its own to go with its own personal liberty. Liberty is a power of (some of) those things with wills; it is the power to carry out one's will successfully.

Moreover, we are not free with respect to whether or not we will. Rather, we are always willing (that we do) something, and desire determines which course of action we will (that we do). First, Locke proposes that willing is an action. (E II, XXI, 23, 8) He argues that we cannot forego performing this action at any time: " being unavoidable that the Action, depending on his Will , should exist, or not exist; and its existence, or not existence, following perfectly the determination, and preference of his Will, [7] he cannot avoid willing the existence, or not existence, of that Action...." (E II, XXI, 23, 12-16) We can will that we perform an action, or we an will that we perform some different action. But we can't will that we perform no action, because we will always be doing something . So we necessarily will (that we do) something. [8]

Thus far the picture is a reasonably plausible one. Persons experience pleasures and pains, and they call the causes of these, respectively, the good and the evil. The absence of something which is (thought to be) good causes a pain, desire. Desire determines which acts a person will perform. The will is the power to initiate those actions, and liberty is the power to succeed in carrying them out. The person, not the will, is free. However, Locke has other passages in which he discusses the good and the will which contradict the present account.

Recall that by 'good' Locke means 'that which causes pleasure'. We have a right, then, to be puzzled when he says:

...all absent good does not, according to the greatness it has, or is acknowledg'd to have [my italics], cause pain equal to that greatness; as all pain causes desire equal to itself: Because the absence of good is not always a pain, as the presence of pain is. And therefore absent good may be looked on, and considered without desire . But so much as there is any where of desire , so much there is of uneasiness ." (E II, XXI, 31, 17-20)

This passage, and others like it, [9] are problematic. First, Locke says that pain causes desire. This is incorrect, because at E II, XX, 6 (in light of E II, XX, 15) Locke defines desire as a kind of pain. Second, he claims that the absence of good, even when the goodness of the good in question is acknowledged by an agent, is not a pain. Strictly, this is correct: the absence of good is not, but rather causes, pain, just as the presence of good is not but causes pleasure. But it is hard to see what point Locke could be making if he were splitting a hair this fine. So it appears that he is saying that the absence of good does not cause pain. However at E II, XX, 6 Locke defines desire as a pain caused by the absence of some good. There is no contradiction, but the passage is puzzling. If the absence of the good only sometimes causes unease, what accounts for the difference between those absent goods whose absence causes unease and those whose absence does not? Locke does not appear to say. The obvious account, that we are not aware of every pleasure-inducing agent, would say that the absence of those goods which are not known to be goods (or to exist) does not cause desire for those goods. But this account is ruled out by Locke's phrase 'is acknowledged to have' applied to the degree of goodness of various goods.

How should this difficulty be dealt with? I propose that we simply ignore the phrase 'is acknowledged to have' in the troubling passage. Had Locke not written this phrase, he would not have been positing an inexplicable division between kinds of goods, but is rather (elliptically) making the point that we have to know about a good and agree that it is good before we can desire it. And that claim is certainly true. So let's treat him as having had a momentary slip of the pen.

There are likewise troubling passages concerning the will and freedom. Locke gives a rather clever proof, discussed above, that one is not free to will or not. Rather, freedom is the power to succeed in carrying out one's will. Nevertheless, he argues:

...the mind having in most cases, as is evident in Experience, a power to suspend the execution and satisfaction of any of its desires, and so all, one after another, is at liberty to consider the objects of them; examine them on all sides, and weigh them with others. In this lies the liberty Man has; and from the not using of it right comes all that variety of mistakes, errors, and faults which we run into, in the conduct of our lives, and our endeavours after happiness; whilst we precipitate the determination of our wills , and engage too soon before due examination. This seems to me the source of all liberty; in this seems to consist that, which is (as I think improperly) call'd Free will . For during this suspension of any desire, before the will be determined to action [italics, except on 'will', mine], and the action... done, we have opportunity to examine, view, and judge, of the good or evil of what we are going to do... (E II, XXI, 47, 15-31)

Here Locke provides a different account of liberty. Earlier, liberty had been the power to carry out one's will successfully, but here liberty is the power to suspend action to fulfill specific desires. Worse, however, is the remark about the will. If we are always willing, then there is no time 'before the will be determined to action'. The earlier argument had established that we are not at liberty to will or not to will; now our liberty consists in our power to refrain from willing (for a time).

There is a way to save Locke from contradiction on this point, though he clearly commits at least verbal contradiction. First, let us posit that that liberty which is the power to succeed in willed actions has two aspects, an inner and an outer. We lose our outer liberty just in case external circumstances prevent an action of ours from succeeding. We lose our inner liberty just in case internal circumstances prevent an action of ours from succeeding. The sort of action which we might lose our inner liberty to succeed in would be an inner action; specifically, the act of putting off some particular action to allow time for reflection. Recall that there are two kinds of actions, motion and thought. Inner liberty will consist in our power to think about what we prefer (will) to think about. There is good reason to attribute this doctrine to Locke; he writes that, "...sometimes a boisterous Passion hurries our Thoughts, as a Hurricane does our Bodies, without leaving us the liberty of thinking on other things, which we would rather chuse." (E II, XXI, 12, 34-1) So it is possible to lose our liberty with respect to our thoughts because inner circumstances prevent us from succeeding in our will with respect to those thoughts. A natural context in which this might occur would be one in which we want to reflect on the wisdom of a course of action, but our desire to perform that action overwhelms us and we find ourselves acting against our desire to reflect.

Now that we have inner liberty in place as the power to succeed in carrying out our will over our thoughts, we must posit that there is a will with respect to our own thoughts. One has a power to think about what one desires to think about, and that power is one's will. Since what we think about determines our actions, this will is a kind of meta-will: we determine the contents of our thoughts by way of this faculty, and the contents of our thoughts determine what other actions we will.

However, with the meta-will in place, we must then posit meta-desires for the meta-will to be our faculty of carrying out. The paradigm instance of such a desire would be the desire to reflect on a proposed course of action before carrying it out. If this meta-desire is carried out by way of the meta-will, then the ordinary will is stopped temporarily while we reflect. Thus there is a time before the will is determined, though not before the meta-will is determined.

Finally, we must give a sense to Locke's second notion of liberty, the notion of liberty as the power to suspend action. This liberty cannot be the power to succeed in fulfilling one's desires. Consider a person who has a weak desire to reflect, and a strong desire to act immediately (without reflection). Since such a person wills that she act immediately (without reflection), she wills that she not reflect. Were she to fail in this will and reflect, she would not have been at liberty to carry out her will to act (without reflection). [10] But this cannot be correct, because Locke says that the ability to reflect on one's proposed actions is a prerequisite on free agency: " soon as the Mind regains the power to stop or continue, begin or forbear any of these Motions of the Body without, or Thoughts within, according as it thinks fit to preferr either to the other, we then consider the Man as a free Agent again." (E II, XXI, 12, 2-5) So for Locke, free agency consists in our meta-desire to reflect — our unease at the prospect of ill-considered action — dominating our desire to act precipitately. That is, the second kind of liberty is not a power, but rather a possibility: the possibility that our meta-desire to reflect will be our strongest desire and so dominate our various desires to act (without reflection). This is not a power because it is not under one's immediate control what one's desires will be.

We can then take the 'meta-'s off of the various desires and wills; there is no need to posit a double array of inner powers. Rather, one always wills something, and sometimes what one wills is to contemplate. One's desires always determine one's will, but sometimes this is a desire to reflect. One has inner liberty if one's desires to act (without reflection) do not lead one to act precipitately, and one has outer liberty if one's desires to act can be carried out.

Finally, recall that Locke's whole account is vitiated by his posit of a mental substance. However, we can eliminate this posit. Let us say instead that the mind consists of all of one's ideas and a set of relations to one's body (or, preferably, not just relations to one's body but one's body itself), and that such a bundle of ideas and relations has certain powers which it can exercise in virtue of the ideas and relations which constitute it. Thus one has a will in virtue of having desires and a body, and so forth.

Some Lockean Obligations

The foregoing account seems to show, for Locke, that we have certain obligations. For instance, Locke writes:

For the inclination, and tendency of their [persons'] nature to happiness is an obligation and motive to them, to take care not to mistake, or miss it; and so necessarily puts them upon caution, deliberation, and wariness, in the direction of their particular actions, which are the means to obtain it. ...I desire it may be well consider'd, whether the great inlet, and exercise of all the liberty men have, are capable of, or can be useful to them, and that whereon depends the turn of their actions, does not lie in this, that they can suspend their desires, and stop them from determining their wills to any action, till they have duly and fairly examin'd the good and evil of it, as far forth as the weight of the thing requires. This we are able to do; and when we have done it, we have done our duty , and all that is in our power; and indeed all that needs. (E II, XXI, 52, 5-9 & 14-22; all emphases but first and last original)

Here, Locke claims that we are obligated, and have a duty, to exercise our inner liberty to reflect on the wisdom of our actions. But the reason we have this duty is our 'inclination and tendency... to happiness'. Why might having such an inclination obligate us? Recall that the object of desire is what we call the good. For Locke, there is a conceptual link between pleasure and the good. We can see here that there is a further conceptual link between obligation and pleasure. Presumably, this link exists because there is a link between obligation and the good: we are obligated to bring about the good. 'The good' is here to be understood in an agent-relative way — precisely as agent-relative as our desires are — so that we are not each obligated to bring about every possible thing which anyone might regard as good, but rather only that which we regard as the most good for us. Since the good is what brings us pleasure and what fulfills our desires, we are obligated to fulfill our desires. [11] Locke thus emerges as a hedonist. [12]

Now, Locke supposes that we have an obligation to exercise our inner liberty, which is the possibility that our desire to reflect on our actions might be stronger than our desires to act immediately (without reflection). We have this obligation because only if we reflect on prospective courses of action will we act rightly, that is, in the way which most satisfies our desires. We can bring it about that we exercise our inner liberty by bringing it about that our desire to reflect is in fact stronger than our desires which conflict with this desire. [13] So we are obligated to bring this about however we can.

But our concerns are not exclusively with inner liberty. We can fail to bring about the good because we fail in our overt attempts to fulfill our desires. This will happen if we fail to have outer liberty. When external circumstances impede our fulfillment of our desires, we ought to alter those circumstances so that we might achieve the good despite them.

Toward Rights

Sometimes, the external circumstances which hinder our fulfillment of our desires are the acts of other persons. Others may attempt to constrain our action and thus restrict our liberty. Should this occur, we have an obligation to alter the circumstance of their constraining us. Locke proposes that: "...every Man is put under a necessity by his constitution, as an intelligent Being, to be determined in willing by his own Thought and Judgment, what is best for him to do: else he would be under the determination of some other than himself, which is want of Liberty." (E II, XXI, 48, 27-31) Imagine two cases. In the first case, my own good is identical to the good of another person. In this case, acting to achieve the good of the other does not require that I fail to act to achieve my own good, and I do not want — that is, lack — liberty simply because I'm acting for the benefit of another.

In the other case, one's own good is not identical with that of another. This case further breaks down to two possibilities, one in which one acts to achieve one's own good and not the good of the other, and one in which one acts to achieve the good of the other and not one's own. In the latter case, one fails to fulfill one's obligations. This is because one's obligation is to attain the good, and the good is what satisfies one's desires, not (except by coincidence) the desires of another. So whenever one's own good is not identical with that of another, one is obligated to pursue one's own good, not that of the other.

The other, however, might try to bring it about that you pursue her good, rather than her own. She might try to constrain one's actions such that one is forced to pursue her good rather than one's own. When this happens, one is obligated to remove the constraint and/or undo its effects: if another person employs force against one so that one cannot fulfill certain of one's own desires, then one is under an obligation to defend oneself if one can and to gain restitution for the loss if the loss cannot be prevented.

This links up with Locke's idea, proposed in the Second Treatise , that one has an executive right in nature to enforce the law of nature. Locke suggests there that "...the execution of the law of nature is, in that state [of nature], put into every man's hands, whereby every one has a right to punish the transgressions of that law to such a degree, as may hinder its violation..." ( Second Treatise , II, 7) Locke's own argument for this claim is that, as there is a law of nature and there cannot be a law without some party empowered to enforce that law, and as there is no party other than individual persons in the state of nature who can be so empowered, such persons are so empowered by elimination.

Now, what is the law of nature which we are all empowered to enforce? Locke had said (just before the just-quoted passage) that "...the Law of Nature... willeth the Peace and Preservation of all Mankind ...." So what we are all empowered to do, in the state of nature, is preserve 'all mankind'. But it's not plain what this term means. Is Locke suggesting that the law of nature binds each of us to preserve each person, or all people as a whole? Simmons argues on textual grounds that Locke has the latter in mind. But this would be a cruel position to foist on Locke, as Simmons accidentally makes clear when discussing why it's moral to punish criminals:

Locke seems to believe that the rules of morality aim at insuring a decent, comfortable existence for all persons (period), without allowing for tradeoffs between persons designed to maximize total happiness. While some who threaten mankind may have to be eliminated, more mundane utilitarian trade-offs seem to have no place. (Simmons, 57)

Simmons's point is that Locke is a rule-, rather than an act-, consequentialist, and since following certain rules might have as their consequence danger to humanity as a whole, it's morally appropriate to prevent acts which accord with those rules. But the rules have certainly taken precedence over the consequences in this argument. Simmons's Locke argues as follows. (1) The ultimate goal toward which we are working is the peace and preservation of humanity, not individual persons (except insofar as they are parts of humanity). (2) But adherence to some rules, such as the rules accepted by criminals, threatens the peace and preservation of humanity. Hence, (3) action in accordance with such rules can be rightfully prevented.

However, (2) can be justified in either of two ways. First, we could argue that the universalization of criminal rules would threaten the peace and preservation of humanity. Second, we could argue that, as a likely actual consequence of failing to prevent criminal action, humanity might lose its peace and preservation. Now, the second argument is just silly; Locke cannot possibly have thought that anyone was threatening the annihilation of the human species through her criminal activities even if they went completely unchecked. So Simmons's Locke must give the first argument. But the first argument is pretty narrowly Kantian and hence not consistent with the rule- consequentialism Simmons is trying to establish Locke held; that is, the rules have taken precedence over the consequences.

Something similar is going to happen to any argument that Locke makes which relies on the law of nature commanding the preservation of humanity as a whole. We simply cannot take seriously a law of nature which says, "Whatever you do, don't kill everybody ." Such a law (at least as offered up before the advent of nuclear weapons) has no normative force, because it's impossible to break it: nobody could arrange to kill everybody. So let's see whether he really commits himself to this interpretation of the law of nature. Simmons cites three passages in which Locke seems to so commit himself. Here's the first:

...declaring by Word or Action... a sedate setled Design, upon another Mans Life, puts him in a State of War with him against whom he has declared such an Intention, and so has exposed his Life to the others Power to be taken away by him, or any one that joyns with him in his Defence, and espouses his Quarrel: it being reasonable and just I should have a Right to destroy that which threatens me with Destruction. For by the Fundamental Law of Nature, Man being to be preserved , as much as possible, when all cannot be preserv'd, the safety of the Innocent is to be preferred... (2T, III, 16)

This is pretty convincing (and gives the argument I quoted Simmons discussing before). Locke appears to be considering the engagement from a third person point of view and justifying the destruction of the criminal despite the law that humanity is to be preserved as much as possible. However, since Locke's law of nature looks so bad under such an interpretation, I think that we should be pretty motivated to find some alternate reading.

How can I render the above passage consistent with my preferred reading of the law of nature, which is that persons, rather than humanity, are to be preserved? (And especially with my preferred, hedonistic, justification of the law?) The law of nature enjoins me to preserve persons, most especially myself. Now, one way to avoid preserving myself is to make enemies: such enemies are likely to kill me. One good way to make enemies is to kill a person, because such a person likely has friends. So I should avoid killing anyone if at all possible. However, if someone forces me into a position in which I must kill her or die, then I ought to kill her. On this reading, the law of nature enjoins me to preserve other individuals as much as possible, but not when they're threats to me. The injunction deals with individuals as such, not as members of humanity. Moreover, it is hedonistically grounded: I refrain from harming others because of the negative backlash.

Simmons's next passage is this one: "...the first and fundamental positive Law of all Commonwealths, is the establishing of the Legislative Power; as the first and fundamental natural Law , which is to govern even the Legislative it self, is the preservation of the Society , and (as far as will consist with the publick good) of every person in it." (2T, XI, 134) Note the parallel construction. The first and fundamental positive law of all commonwealths is the establishing of their legislative body, so likewise the first and fundamental natural law of all commonwealths is the preservation of the society and of every person in it. It's not plain that the natural law of commonwealths is going to be the same as the natural law discussed elsewhere in the book, because the natural law of commonwealths might not govern individuals as such. So this passage might be simply irrelevant to Simmons's point. But let's assume that the natural law which governs communities is, in fact, identical in content to the natural law which governs individuals in the state of nature. Legislatures are brought about by way of a contract which empowers them to preserve those who sign the contract. Since the natural law had obliged them to preserve one another, it obliges their government to do the same, especially since their own acts of signing the contract gave the government the specific functions of preserving each of them. So again, Locke might be saying that governments are obliged to protect each of their members severally, rather than all of them collectively.

The third passage discusses the power to punish:

So that the end and measure of this Power , when in every Man's hands in the state of Nature, being the preservation of all of his Society, that is, all Mankind in general, it can have no other end or measure , when in the hands of the Magistrate, but to preserve the Members of that Society in their Lives, Liberties, and Possessions; and so cannot be an Absolute, Arbitrary Power over their Lives and Fortunes, which are as much as possible to be preserved; but a Power to make Laws , and annex such Penalties to them, as may tend to the preservation of the whole, by cutting off those Parts, and those only, which are so corrupt, that they threaten the sound and healthy, without which no severity is lawful. (2T, XV, 171)

This is the most convincing of the three passages, because Locke uses the phrase 'all Mankind in general' to refer to what must be preserved. However, this passage actually shows the plausibility of my reading. 'All mankind in general' could be each severally, or all collectively. The phrase itself certainly suggests the former, and that is Simmons's point. However, note that the law enjoins me to preserve 'all mankind in general', but that we empower the government with the end that it preserve 'the members of that society'. The two phrases should have the same referent, because the law enjoins that something be preserved and that thing is being referred to twice. Simmons's reading assumes that we read the former phrase and assume that the second is an elliptical way of putting the first, whereas my reading assumes just the opposite. It's not plain what would support one reading or another, other than the general plausibility of Locke's doctrine on the different views. Since Locke's law of nature is devoid of normative force on Simmons's reading, but not on mine, it seems that my own reading is the preferred one.

The point is borne out by a related passage which Simmons also mentions:

The law that was to govern Adam , was the same that was to govern all his Posterity, the Law of Reason . But his Off-spring... were not presently under that Law : for no Body can be under a Law, which is not promulgated to him; and this Law being promulgated or made known by Reason only, he that is not come to the Use of his Reason, cannot be said to be under this Law ... For Law , in its true Notion, is not so much the Limitation as the direction of a free and intelligent Agent to his proper Interest, and prescribed no further than is for the general Good of those under that Law. Could they be happier without it, the law, as an useless thing would of it self vanish; and that ill deserved the Name of Confinement which hedges us in only from Bogs and Precipices. (2T, VI, 57)

This passage might also appear to support Simmons, because the law is prescribed for the 'general' good of those under it. But this could as easily mean that, since the law is prescribed to each rational agent, it will be of benefit to each one severally. And this does seem to be the justification which Locke provides, since the law directs us toward our proper interest.

But there's more going on here. Note that the law does not confine us from anything worth doing from the point of view of one seeking happiness. Thus it cannot conflict with one's own pursuit of one's own happiness. This is the hedonistic justification of the law which I have been arguing for.

Note also that laws do not bind those who do not know them. It is surely going too far to think that there is a moral rule, known to all, which enjoins us not to annihilate humanity. Since the act proscribed is an impossible act, a law proscribing it is a waste of mental energy and we would be better off without it. So such a "law, as an useless thing would of it self vanish".

Hopefully I've made a persuasive case that the law of nature obliges us to preserve individuals as such, not humanity as a whole. But what, precisely, is it to 'preserve' individuals? Here is a key passage explaining the law of nature:

The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. ...Every one as he is bound to preserve himself , and not to quit his Station wilfully; so by the like reason when his own Preservation comes not in competition, ought he, as much as he can, to Preserve the rest of Mankind , and may not unless it be to do justice to an Offender, take away, or impair the life, or what tends to the Preservation of the Life, the Liberty, Health, Limb or Goods of another. (2T, II, 6)

So there are two obligations to preserve: an obligation to preserve myself, and one to preserve others. Note what the obligation to preserve myself consists in: that I not commit suicide. There is no reason to believe that the preservation of others should consist in anything other than the parallel duty not to harm them. Cohen agrees, arguing that the 'and' following 'Mankind' 'introduces a clause in apposition to what went before, in order to specify what is here meant by preserving the rest of mankind. is because 'and' is here used to introduce an apposition that, unlike what precedes it, what follows is not italicized." (Cohen, 383) Simmons, on the other hand, reads the passage as prescribing four duties: to preserve oneself, to preserve others positively (by rendering aid), and to not violate another's person or (a distinct duty) other property. He continues by noting that "Libertarian interpreters of Locke typically disregard category (2) (the class of positive duties toward others), maintaining that when Locke says we must 'preserve the rest of mankind,' he means only (reiterating his earlier claim) that we must preserve them by the negative means he goes on to mention immediately after." (Simmons, 60) I've given two reasons for thinking that the obligations imposed in II, 6 are negative: the parallel between the duties to preserve self and others, and the appositive-like structure of the last clause of the passage. Is there any good reason for thinking, with Simmons, that Locke accepted positive obligations to others as enjoined by natural law?

The best reason for so thinking is surely the following passage from the First Treatise :

...we know God hath not left one Man so to the Mercy of another, that he may starve him if he please: God the Lord and Father of all, has given to no one of his Children such a Property, in his peculiar Portion of the things of this World, but that he has given his needy Brother a Right to the Surplusage of his Goods; so that it cannot justly be denyed him, when his pressing Wants call for it. (I, IV, 42)

Here, Locke is arguing against Filmer. Filmer had claimed that, since Adam had owned the entire earth, the rest of us can live on earth, the property of Adam's proper heir, only at the sufferance of that heir. Since we do choose to live, we are liable to any demand made by the owner of the earth, the proper absolute monarch. Locke's response is that Adam did not have the right to deny others the share of the fruits of the earth necessary for minimal subsistence.

But it's not plain that this establishes a positive rights claim. In chapter 5 of the Second Treatise , Locke discusses the acquisition of property from nature, giving his famous argument that items from nature become one's in case one mixes one's labor with them: "For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good left for others." (II, V, 27) This should apply even to Adam, who, as it turns out, didn't own any more than the patch of land he worked. What's important here is that there is a limit on what can be taken from nature: nothing can be taken, even by labor, if there is not 'enough and as good left for others'. If there are persons who cannot make a living, and another has goods originally taken from nature which those persons need, then the one who has the goods did not leave as much and as good for others. Thus it's not plain that one has a positive obligation to the less-well-off, rather than a negative obligation not to take more than one's share from nature. What looks like a positive rights claim over others that they aid the less-well-off can be defended by Locke as a right to restitution, not a positive right at all.

Why do people have rights? Locke provides two arguments in 2T, II, 6:

For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker; All the Servants of one Sovereign Master, sent into the World by his Order and about his business, they are his Property, whose Workmanship they are, made to last during his, not one anothers, Pleasure. And being furnished with like Faculties, sharing all in one community of Nature, there cannot be supposed any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one anothers uses... (2T, II, 6)

One argument is a theological one, the other an argument turning on equality. The theological one argues that, since we are all the property of God (who might be thought of as having created us by way of having mixed his labor with us), it would be wrong for anyone to use us in a way not approved of by God. This argument goes wrong for a number of reasons. First, it was trying to establish that we have rights, and so cannot assume that God has some. Second, it is quite impossible for anyone to act in a way not approved of by God, since he is, after all, omnipotent and infinitely wise. Whenever anyone's rights are violated, then, such violation occurred with God's sanction; since you never acquiesce in the violation of your own rights (without the violation ceasing to be a violation), God's rights can't be violated.

The other argument turns on equality. We all have the same abilities, more or less, and specifically we all have desires for what we regard as good. So I cannot claim that you have any natural obligation to me based on some metaphysical inequality, such as that God favors me. Because I regard myself as being authorized, by my own vision of the good which moves me to action, to act in the way I see fit, and because I am aware that you have your own vision of the good, I cannot pretend that you have obligations to others (such as me) that I don't have to others (such as you). So our rights are equal because we each possess whatever features they are that lead us to think of ourselves as having the moral authority to act. The rights of all agents are identical, so I must admit that you have the same rights to act that I have.

Note the importance of this claim for Locke's overall attack on absolutism. Locke needs only to defend the claim that we do not have obligations to monarchs in virtue of anything other than the power we voluntarily vest in them for our own purposes. The equality argument surely establishes that no on else has any rights which I lack. So it is sufficient to establish Locke's overall claim.

It's plain, then, why we are empowered to engage in a revolution against a state which oversteps its proper authority. But there seems to be a problem with this account of rights. As I understand him, Locke grounds your rights in my obligations to myself. Because I have an obligation to pursue happiness, and harming you will bring about a new threat to my success in that pursuit, I have an obligation not to harm you. But what happens when I benefit more from harming you than I'm likely to suffer as a consequence? Am I now obligated to harm you?

In considering whether violating others is likely to lead to pleasure or pain, Locke supposes that God will see to it that violating others will lead to pain in another life. However, he notes that even if there were no afterlife, "...wicked Men have not much the odds to brag of, even in their present possession; nay, all things rightly considered, have, I think even the worse part here." (E II, XXI, 70, 2-4) Locke could here be suggesting (a lá Calvin) that God brings it about that the virtuous prosper and the wicked suffer here on earth. So naturally the wicked will have the worse part. However, since Locke is explicitly considering what would be the case even if God were not playing a role, this interpretation seems forced. More likely, Locke is suggesting that observation shows that persons who violate rights do not seem to be happy, as a rule.

Ordinary intuition seems to support him in this. It seems hard to imagine someone who both systematically harms other people, especially by violating their rights, and lives a good life. Even if we assume that such a person lacks guilt, is never caught, and achieves substantial material rewards, it seems implausible that a life which was as fulfilling as it could possibly be would include more inauthentic dealings with others than another life which is otherwise very similar but included only authentic dealings with others.

There is an additional response to be made on behalf of my Locke. This response suggests that the question of whether I should engage in rights-violating activity is beside the point. In Locke as I have reconstructed him, the concept of rights plays two roles, a negative and a positive. I have no obligations to others, and so am within my rights to protect myself from them. But since there's no point debating about what I can do in the state of nature, the point here is surely that I am within my rights to resist the state. But moreover, the function of the state is to protect me from others; that's what I empower it to do. The role of rights, then, is to empower and restrict the state. Rights come out as a specifically political principle, not a moral principle at all. So it's a mistake to ask a theory of rights why I ought not violate the rights of another. That's a question for moral theory, not political theory. The latter is concerned with the best kind of government and how we ought to relate to governments, while the former is concerned with my dealings with other people.

So it seems that we can generate from Locke a hedonistic, egoistic argument for rights based on each person's obligation to protect her pursuit of the good, that is, her fulfillment of her desires. Such a foundation for rights is unusual, but it has two advantages. First, it makes no appeal to libertarian free will. Second, it is consistent with a 'fallback ethics': that is, the ethics which many ethicists fear we will fall back on if their projects of ethical guidance fail. Perhaps this demonstrates that their projects are less necessary than they had thought; certainly it provides an intriguing secular perspective on rights.

Works Cited

Cohen, G. A. 1985. "Marx and Locke on Land and Labor". in Proceedings of the British Academy 71. pgs 357-388.

Locke, John. 1975 [1689]. An Essay Concerning Human Understanding . Nidditch, Peter, ed. Oxford: Oxford UP.

Locke, John. 1988 [1689]. Two Treatises of Government . Laslett, Peter, ed. Cambridge: Cambridge UP.

Machan, Tibor. Initiative: Human Agency and Society . Stanford: Hoover Institution Press, 2000.

Simmons, A. John. 1992. The Lockean Theory of Rights . Princeton: Princeton UP.


[Note 1] Locke is less clear about this than one would like. Late in E II, XXI, he seems to distinguish between actions and passions; events in which something participates due to its passive powers, "upon due consideration, will be found rather Passions than Actions ." (E II, XXI, 72, 24-5) By this new criterion, only the initiator of an event can act, though agents and non-agents can participate in events which they do not initiate.

[Note 2] Since elsewhere Locke has defined the will as the powers to think and initiate motion, it's not plain why all three of these show up independently in his list. He should have listed either the powers to think and initiate motion, or the will, but not both. No doubt this is just a minor error without greater significance.

[Note 3] Locke also explains (E II, XXIII, 22-29) that our ideas of material and spiritual substance, especially with respect to their exercise of their various passive and active powers, is completely obscure. We have no idea how minds initiate thought or motion, though we do know (Locke claims) that minds do these things.

[Note 4] Locke refrains from defining the ideas of pleasure or pain on grounds that, "These like other simple Ideas cannot be described, nor their Names defined; the way of knowing them is, as of the simple Ideas of the Senses, only by Experience." (E II, XX, 1, 9-12)

[Note 5] Locke here commits an ambiguity. For Locke, whenever a thing participates in an event which it did not initiate, its participation is a display of passive power. The passions in the sense of emotions, then, are a subset of passions in the sense of instances of being-affected. I trust that context will make clear the difference.

[Note 6] Other passages suggest the same point but without the same clarity. For instance, when Locke introduces the idea of goodness, he relates it negatively to pain but only across time. Something is good (and hence causes pleasure) if it can "diminish Pain in us "; likewise, something is evil (and hence causes pain) if it can "diminish any Pleasure in us ". (E II, XX, 2, 19 & 20-21) This shows that the diminishment of a pleasure is a pain, but not that the absence of a pain is a pleasure (and conversely). Likewise, Locke suggests that, "...the removal or Lessening of a Pain is considered, and operates as a Pleasure : And the loss or diminishing of a Pleasure, as a Pain." (E II, XX, 16, 20-21) Again we see that losing a pain is pleasurable, but this does not imply that the absence of a pain is pleasurable (or conversely).

[Note 7] Since Locke thinks that 'preferring' is synonymous with 'willing', the phrase 'preference of his Will' should strike Locke as absurd for just the same reason that the phrase 'freedom of the will' does: it attributes a power — the power to prefer or will — to a power. However, we can make sense of the phrase by taking Locke to mean the willing, by way of the will, of the person: the person employs her faculty of willing to will some action.

[Note 8] Note that inaction is, for Locke, a form of action. E II, XXI, 28, 10-18.

[Note 9] such as (but not limited to) E II, XXI, 35, 5-7 and 46, 2-5

[Note 10] I put 'without reflection' in parentheses because it's almost never one's will to fail to reflect for the sake of failing to reflect; rather, the rashness of one's actions is usually an unintended side-effect of the strength of one's desire.

[Note 11] I'm assuming in this account that we can slip between pleasure and happiness easily: happiness, I assume, is that state in which pleasures substantially outweigh pains.

[Note 12] ...and an egoist. This is because the happiness one is trying to bring about is one's own. That this might entail making other people happy as a constitutive component of the overall egoistic project does not imply that it is not egoistic.

[Note 13] Locke gives some hints about how to do this at E II, XXI, 53 and elsewhere, but discussing these passages would lead us astray.