So here’s a work up on the right to punish as communicated by John Locke in the Two Treatises. A more thorough analysis is surely possible, and desirable, but I had an upper limit of 2000 words, so this is the most succinct yet thorough account that I could come up with. (Yes, I am aware that I omitted almost fully the references to God that Locke uses in his argument, but it’s because I don’t personally find it critical to the outset of his position.)
Also, I have a very, very, very, very dear friend who is far more sophisticated with respect to Locke than myself. I hope that this treatment is fair, and offers a descent tribute that friend of mine who is so fond of Locke.
Also, a thorough treatment of Plantinga is forthcoming, but is taking more time than I would have liked on account of Dr. Plantinga’s very sophistical approach to argument. It’ll be worth the wait!
EVALUATING THE RIGHT TO PUNISH ACCORDING TO LOCKE
How do governments justify the use of force in bringing to bear the rule of law in civil society? In the second book of Two Treatises of Government (hereafter, II), John Locke sets out to answer this question. According to Locke, it all goes back to our original liberties while in the state of nature. Because there is no common authority in such a state, men are endowed with the right to control their own lives, and should anyone violate another’s right to said self-government, the victim possesses the natural right to punish the violator. It is the aim of this paper to identify what rights we possess in the state of nature (particularly as it pertains to the executive right to punish), and to what extent we transfer them to civil government to act on our behalf.
Locke identifies our natural condition (life before civil society) as a state of nature (SON) with an attendant law of nature (LON) wherein we possess certain rights and duties; we are at perfect liberty to be in control of our own lives without any interference, and this liberty belongs equally to every rational person (II, 4, 60 – 61). However, this liberty does not imply that we are free to do anything at all, in fact, we have two natural duties; the duty of self-preservation, and the duty to the preservation of mankind, and both include correlative rights to the same. These duties consist in the aim of the LON, that “… no one ought to harm another in his life, health, liberty, or possessions…” (II, 6) As with all laws, enforcement mechanisms must be in place to ensure compliance, so all men (of reason) are endowed (by God) with the natural executive right (NER) to enforce the LON by proportionately punishing violators commensurate with their crimes, and according to the dictates of “calm reason, and conscience.” (II, 7, 8)
So then, as it stands, all rational men in a SON have the duty to preserve their own natural rights, but are also charged with protecting the natural rights of the rest of mankind, and so possess the NER to punish and deter criminals from violating the LON (II, 11-12, 128). Locke acknowledges that this “strange doctrine” (II, 9) may lead to many inconveniences, including a state of war (SOW), if and when men judge unjustly, particularly by punishing others too harshly, or by judging one’s friends or relatives too leniently (II, 13). It is preferable, then, that rational men come together to form a civil society wherein a common judge can fairly and impartially judge the violations of the LON, or other laws passed for the common good. (II, 12, 127) When these men enter into such a society by properly consenting, they wholly relinquish their NER (II, 89, 130), and a portion of their right to self-government as the common-good demands (II, 87, 129). It is this transfer of rights that provides the necessary and sufficient conditions for (Locke’s) civil government to be formed (II, 89), and provide the government with the authority to punish citizens according to the terms agreed upon by them to provide for their safety and security (II, 222).
This account may seem to be nothing more than an anachronism; a vestige of an earlier time when people were not so wholly conditioned to view punishment as something that exists only in a well-defined institutional setting. Surely we recognize that the government has a monopoly on force now, but that authority must have come from somewhere. (The government is artificial, it must have acquired the right somehow.) And what of punishment in a prepolitical society? How was the LON enforced before police and courtrooms? It seems, then, that the right to punish must either come from forfeiture, or a natural right. We will examine them in turn.
Suppose that it is the case that punishment is justly dispensed against criminals who violate laws or the rights of others; why must it be the case that a NER exists? Could it not be the case that by committing crimes, criminals merely forfeit their a portion of their natural rights to self-preservation, and thus, transfer a new right of punishment to the victim? This is a coherent alternative to Locke’s NER theory, but only on first inspection, and it falls apart quickly after some evaluation. Suppose that that the criminals rights are only lost with respect to the victim. The criminal’s forfeiture provides a right to the victim, but what happens if the victim is killed in the process? Since the victim was the only one with the right to punish the violator, the violator faces no punishment for his transgression. Further, the right as construed, when transferred to the government, provides only for the punishment of those who transgress upon it. It does not provide protection for the public at large because it is only justified in punishing crimes against itself. This is clearly an affront to justice that no rational person will be happy with leaving as is.
Let us then modify the alternative slightly; suppose the forfeiture gives all of mankind the right to punish since the crime was not only against one person, it was against all of mankind in general (II, 11). Since the criminal has “declared war against all mankind” it is reasonable that a liberty right is generated such that “every man hath a right to punish the offender” (II, 8). So far so good, but what about this gives the government a monopoly on the use of force? So far nothing does. In fact, competitive interference is morally permissible in cases of the execution of liberty rights since those rights are open to everyone. For example, if Trayvon wrongs me, he gives up certain rights, and I acquire a liberty right to punish him, but so does everyone else. Now suppose that a very zealous person (George) nearby sees the crime, and as I deduce the proper punishment for Trayvon, George gets a hold of Trayvon first, and executes that same punishment upon him. My right to punish Trayvon expired when he suffered the punishment meted out by George. Now let us enter civil society; those same liberty rights, with no protection against competitive interference, are now transferred to governmental authority. There is nothing that prohibits a vigilante from getting to the criminal first, and executing the punishment. This is particularly worrisome because the individual who arrives first may punish too harshly, or too leniently, and thus “confusion and disorder” (a SOW) may be likely to break out. It is best then, to let the impartial judgment of a magistrate do the punishing, but this account does not provide for the monopoly on force possessed by the government, so there must be some other source for the government’s sole possession of the right to punish.
Since the theory of forfeiture seems to have failed, how else can we justify the government’s authority to punish violators of the law? What about the duty of preservation of mankind? Let’s go back to the rights that individuals possess in the SON. The LON requires that someone enforce the law (II, 7), but in a SON with perfect equality, if one person has the right, then everyone does! (II, 4) Locke clearly states that we have the right, and correlative duty, to act in accordance with the LON in the manner that best preserves our lives, and the lives of others, and that because of “degenerate men,” those rights include the ability to defend and execute the LON through punitive (reparative and deterrent) actions (II, 8, 128). The executive right to punish comes from our right to self-preservation, but notice that we also possess a federative right as a result of our duty/right to preserve mankind. It seems now that we have the framework of a NER, based on certain duties, that applies to everyone. We are now in ample form to determine how this translates to the government’s right to punish.
Because of the inevitable malcontent that ensues when men are judges in their own cases, or are too heavy, or light-handed when dispensing punishment, a SOW is likely to break out (II, 13). This is inconvenient to those who seek but peace and security, and the ability to control one’s own life. Men then endeavor to form civil society, and relinquish some rights of self-government (II, 129), but they give up entirely their NER (II, 130). This is the very definition of civil society according to Locke, and also the source of the government’s monopoly on punishment. Let us see how our natural rights map onto the rights of government; individuals in a SON have the right to defend themselves, and the rest of society, and also to punish those who successfully commit crime. Therefore, upon transferring those rights (particularly the concept of “open punishment”), the government gains the power to defend all of its citizens against attack, and to punish those who violate their rights. Additionally, because individuals had the right to preserve mankind, the government now has a federative power to punish violators of the LON without their borders. (This is justified on account of our being in a SON with respect to them, and having no common judge. In the same sense, the government of country is in a SON with respect to the other country, and so this executive right exists on a larger scale.) (II, 145 – 148) It is because we had these rights in the SON that we are able to transfer them to the government to act on our behalf.
Now then, we have an account for how the government obtains the right to punish; through some act of consent, we entrust them with the executive and federative duties to punish any criminal, but this also permits that government to punish violators of LON within other commonwealths, and to establish an environment of deterrence (II, 220). But one may remain obstinate and continue to decry that there is any natural right to punish! The simple response would be to contend that there is such a natural right, for if there were none governments could not justifiably punish non-citizens within, or without their borders. But one might say, “Surely this government has no right to enforce the law against those who have not consented to the rules of the commonwealth, e.g., an alien, or anarchist, etc.” This objection means to suggest that an illegal alien could kill a citizen and no one would have recourse! The citizens gave their NER to the government, and the government does not have the consent of the alien, so no punishment can be issued to him. Locke returns our attention to the rights that we possess in SON; remember that since there is no common judge, the alien would be considered in a SON with respect to the government, so the government would have the right to punish the alien because of the NER we had, then gave to the government.
In this paper I have attempted to show that Locke’s argument in support of the NER succeeds. The success of the argument, however, comes because of the assumption that the right to punish must come from either forfeiture by the criminal, or possession of some natural right. Social utility could be another possible source, but it seems that the NER and any utilitarian justifications do not have to be mutually exclusive. Clearly, the NER provides a great deal of common good through its retributive, and deterrent effects, but also through its calm and impartial means of enforcement of natural and civil laws. The natural right approach seems most apt at achieving a maximal level of good, and sufficiently describes how government comes to possess the right to punish, and to possess that right exclusively.
Yours In Contemplation,