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On the Edge of Anarchy
Locke, Consent, and the Limits of Society
By A. John Simmons
PRINCETON UNIVERSITY PRESS Copyright © 1993 Princeton University Press
All rights reserved.
THE LOCKEAN STATE OF NATURE
1.1. Locke's State of Nature
The state of nature is in many ways the central concept at work in Locke's Treatises. It is the concept with which Locke chooses to introduce the Second Treatise (II, 4). And it is only against and by means of the state of nature that he offers us accounts of political obligation and authority, the justification of civil government, the limits on political power, and the occasions for justified resistance. The state of nature defines for Locke the boundaries of the political. Understanding the state of nature is thus essential for understanding Locke's conception of the nature, content, and limits of the political relationship. But the state of nature is probably also the most misunderstood idea in Locke's political philosophy. Locke has puzzled many generations of readers by appearing to offer inconsistent descriptions of the state of nature and by apparently allowing the concept to play too many roles in his theory. Is the state of nature a historical period that preceded governments? Or is it the state into which every person, even today, is born? Or is it simply an analytical device used by Locke to justify civil society, a convenient fiction with no actual historical instantiations?
Progress in understanding Locke's intentions has been made in recent literature, of course; and it is, as a result, no longer fashionable to simply dismiss Locke's claims about the state of nature as bad history or bad psychology. Nor is it as easy as it once was to accuse Locke of blatant inconsistency or deceptiveness in his descriptions of the social conditions persons would endure in the state of nature. In spite of this progress, however, widespread obscurities and errors persist in discussions of Locke's state of nature, mistakes that often conceal the distinctive nature and virtues of the concept with which Locke chose to work. I will try in this chapter to remedy those mistakes. With the definition I present (in this section) in hand, many of the familiar worries about Locke's account are much easier to unravel. This definition will also enable us to locate both Locke's true confusions about the state of nature, which lie in rather different areas than is generally supposed, and the best way of understanding the value of Locke's concept of the state of nature to a Lockean program in political philosophy.
Locke begins chapter 2 of the Second Treatise by asking us to "consider what state all men are naturally in" (II, 4)—that is, the state of nature. The state of nature, of course, functions as the starting point in Locke's genetic account of the rise of civil societies. And the problems of life in that state serve to explain and justify the transition to political life. As a result, if we come to Locke fresh from a reading of Hobbes (as students often do), it is perhaps natural to suppose that Locke means by the state of nature roughly what Hobbes meant. For Hobbes (to simplify a bit), the state of nature can be defined as the state persons are (or would be) in living together without effective government over them. "Effective government" here means something like "government able to provide its citizens with adequate security against domestic and foreign assaults on their persons or property." To be sure, Hobbes fills out his picture of life in the state of nature in a way that is hard to confuse with Locke's picture. But it is easy enough to believe that in their definitions of the state of nature, Hobbes and Locke simply agree.
Let me be more precise. We must distinguish in Hobbes the definition of the state of nature (as life without effective government) from the social and moral characterizations of that state and from claims about that state's historical instantiations. People can and do actually live in the state of nature, on Hobbes' view of it, for people can live and have in fact lived together without effective government over them. When they do live in this condition, their lives will have certain social and moral properties. The social characterization of the state of nature in Hobbes is familiar (and quite different from what we find in Locke). Life in the state of nature is "solitary, poor, nasty, brutish, and short," a condition of war "of every man against every man," a war in which there is no industry, no culture, and no real society. The moral condition of persons in the state of nature for Hobbes is less clear, although it seems fair to say that they have no moral rights or obligations at all in the ordinary sense—"the notions of right and wrong, justice and injustice, have there no place." As for historical instantiations of the state of nature (i.e., actual occasions where persons lived together without effective government), Hobbes mentions savages in America, "civilized" persons during a civil war, and (at the international level) independent sovereigns. Now Locke, of course, would accept little of this (although we must for him as well clearly distinguish his definition of the state of nature from his claims about its social, moral, and historical properties). Locke's social characterization of the state of nature seems considerably less bleak than Hobbes'; his moral characterization includes individuals with full-blown moral rights and obligations; and in Hobbes' list of historical instantiations of the state of nature, Locke would certainly make changes (primarily by adding to it). But for all of these disagreements, it is not difficult to suppose that Hobbes' and Locke's definitions of the state of nature are roughly the same.
This supposition is a common one among Locke scholars, who frequently claim that for Locke the state of nature is the condition of persons without (effective) government. That view is, however, mistaken in both obvious and more subtle fashions. In the most obvious case, persons can for Locke be living under effective, highly organized governments and still be in the state of nature—provided only that those governments are illegitimate with respect to them. Prominent instances mentioned by Locke are persons living under arbitrary, tyrannical governments (II, 17–20) and under foreign powers that have dissolved their society by conquest (II, 211). In both cases effective government and the state of nature are consistent. At the very least, one wants to build into a definition of the state of nature that it is the condition of persons living together without legitimate government. Even this addition, however, will not suffice, for Locke mentions several classes of persons who can live under legitimate governments while remaining in the state of nature: visiting aliens (II, 9), minors under the age of consent (II, 15,118), and those of defective reason (II, 60). What is clearly needed in any adequate definition of Locke's state of nature is some element that captures the distinctive moral component of that state. I will suggest such a definition momentarily.
But there is a second set of problems confronted in approaching the Lockean state of nature from a Hobbesian direction. For Hobbes, the state of nature is a condition persons are either in or out of (simpliciter). And he virtually always writes of it as a condition that only groups of persons can be in or out of. Neither of these points squares well with Locke's concept of the state of nature (although Locke's own language is sometimes misleading). In the first place, Locke often writes of people being in the state of nature with respect to certain people and out of it with respect to others (at the same time). Thus, the princes of (legitimate or illegitimate) independent governments are in the state of nature with respect to each other (II, 14), although legitimate princes are (at the same time) out of that state with respect to fellow citizens of their commonwealths. And visiting citizens of an alien legitimate state are in the state of nature with respect to the state they visit (II, 9), but out of that state with respect to citizens of their own state. This suggests that the state of nature must for Locke be a relational concept, something not at all obviously true of Hobbes' parallel notion. Second, while Hobbes virtually never writes of individuals being in the state of nature while those around them are not (making his state of nature essentially a property of groups of persons), Locke's individuals are frequently in that position. Visiting aliens are, of course, in that position, and since every person for Locke is born into the state of nature (II, 15, 118, 191), it is impossible to imagine a realistic society (no matter how legitimate) within which there are not many persons in that position. Locke's state of nature is, then, both a more individualistic and a more relational concept than that of Hobbes. And the more closely we pattern our analysis of Locke's state of nature on Hobbesian notions, the more completely we will miss these essential features.
Now it may seem that in concentrating on the Hobbesian leanings of some scholars' accounts of Locke's state of nature, I have thus far managed to ignore Locke's most important claims about that state. Indeed, many take Locke to have given us a clear definition of the state of nature: "Want of a common judge with authority, puts all persons in the state of nature" (II, 19); "Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature" (II, 19).17 Here (and elsewhere) Locke claims that wherever no one is entitled to settle controversies between two persons, wherever there is no authorized umpire to judge between them, those persons are in the state of nature. Those with no fair appeal to neutral arbiters may resolve their disagreements themselves, as the law of nature permits. The absence of an authorized common judge is taken by most of the scholars who are not influenced by Hobbesian notions to be (at least the essence of) Locke's definition of the state of nature.
It is worth noting, first, that Locke's claims about the "common judge with authority" do not have the form of a definition; they have, rather, the form of a statement of a sufficient condition for being in the state of nature. Locke never, for instance, claims that it is only when there is no common judge that persons are in the state of nature (he never, that is, claims that this condition is a necessary one). For all we know (on the strength of these passages alone) there may be many quite different conditions also sufficient to put persons in the state of nature. A statement of a sufficient condition need not even approach a definition.
But lest this seem an idle, academic point, of no relevance to intelligent interpretation of Locke's text, I believe there is good reason not to want Locke to be offering his claims about the common judge as a definition of the state of nature. This is most easily seen if we remember Locke's claims about private contracts in the state of nature:
For 'tis not every compact that puts an end to the state of nature between persons, but only this one of agreeing together mutually to enter into one community, and make one body politic; other promises and compacts, men may make one with another, and yet still be in the state of nature.... For truth and keeping of faith belongs to men as men, and not as members of society. (II, 14)
In other words, people may make promises and contracts with one another, transfer rights and undertake obligations, without leaving the state of nature. Only one particular and very special agreement takes persons out of the state of nature. Is that "special agreement" simply any agreement to set up a judge between persons? Is it simply any instance of one person transferring to another his natural right to judge for himself and punish violators of the law of nature (what Locke calls the "executive power of the law of nature")? It is hard to see how either of these claims could be plausibly maintained. For if it is possible for a large group of persons to surrender (in creating a civil society) the rights necessary to make a "common judge with authority," surely it is possible for a small number of people, without creating a civil society, to erect a common judge with equally legitimate authority. Why may not two persons in the state of nature authorize a third to settle conflicts between them (i.e., both surrender to the third their rights to judge for themselves)? I can see nothing in the nature of the rights or the transaction that would preclude this for Locke. Yet if two persons thus agreed to set up a common judge, surely this would be a purely private contract, after which they would still be in the state of nature. Simply erecting an authorized umpire would not be sufficient to constitute creation of a civil society. Among other things, this "common judge" would appear to lack the right to make law for those he judges between. The judge could, of course, interpret the law of nature for those who authorized him; for possessing the right to interpret the applicable body of law is part of what Locke means when he talks of being authorized to judge. But such a judge could not make civil law (which must be consistent with but will extend well beyond the requirements of natural law). In making a civil society, persons must give up not only their rights to interpret and execute natural law, but must as well create for their governors the right to make and enforce necessary civil laws whose content goes beyond that prescribed by the law of nature (see II, 128–30; and the discussion below in 3.1). Further, it seems, there would not be a sufficient number of people involved in a private agreement of the sort described to create a functioning society. The one very special agreement that creates a civil society is considerably more complex, and involves the surrendering by citizens of far more rights, than any simple agreement merely to set up a common judge with authority. Thus, while the absence of a common judge between persons is clearly a sufficient condition for those persons being in the state of nature, it does not appear to be a necessary condition. Common judges with authority may be present even in the state of nature.
Exactly when an agreement is an agreement that creates a civil society, and when sufficiently many people are involved to create one, are questions to which Locke also provides (at least the frameworks for) answers. But he rightly concentrates his attention on one particular aspect of the agreement (the creation of an authorized judge) in his discussion of the state of nature, for it is this aspect of the agreement that solves the fundamental problems of life in the state of nature. It is still, however, only one aspect of the special agreement that creates a civil society. Without the rest of the agreement, persons remain in the state of nature. Thus, any acceptable definition of Locke's state of nature must make reference to (or otherwise capture the significance of) the full agreement that alone creates civil society and removes persons from their natural condition.
We might try to give an account of Locke's state of nature that refers to the full agreement as follows:
A person (A) is in the state of nature if and only if A has not voluntarily agreed to join some legitimate political community.
This definition (in the nontechnical sense of "definition"), while exceedingly simple, succeeds where the others we have considered failed in capturing the crucial element distinguishing the civil from the natural state—the voluntary agreement by an individual to perform according to the special terms of the contract that alone creates a civil society. This definition leaves open the precise content of the contract necessary to create a civil society. (Locke, of course, fills in much of that content for us, as we will see in subsequent chapters.) It also preserves the individualistic character of Locke's concept, since it allows that a single person may be in the state of nature (in virtue of not having agreed to join) while those around him are out of it.
But this definition is still flawed in two regards. First, it does nothing to capture the relational character of Locke's concept of the state of nature. And, second, this definition does not account for the cases of those who are returned to the state of nature from civil society. I propose, then, as an acceptable definition of Locke's state of nature the following:
A is in the state of nature with respect to B if and only if A has not voluntarily agreed to join (or is no longer a member of) a legitimate political community of which B is a member.
Excerpted from On the Edge of Anarchy by A. John Simmons. Copyright © 1993 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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