John Locke – Sendal: Justice: Part 4 “THIS LAND IS MY LAND”

http://www.youtube.com/watch?v=MGyygiXMzRk

PART ONE: THIS LAND IS MY LAND
The philosopher John Locke believes that individuals have certain rights so fundamental that no government can ever take them away. These rights—to life, liberty and property—were given to us as human beings in the state of nature, a time before government and laws were created. According to Locke, our natural rights are governed by the law of nature, known by reason, which says that we can neither give them up nor take them away from anyone else. Sandel wraps up the lecture by raising a question: what happens to our natural rights once we enter society and consent to a system of laws?

Libertarian ally?

Fundamental rights – no government can take away – natural right to: life, liberty & property.

Right to property is not just creation of government or of law = natural right – pre-political, attaches to individuals as human beings, even before gov’ts – must imagine state of nature before gov’t, before law

HBs are equal – no natural hierarchy – we are free in a State of Nature.

Law of nature constrains what we can do, even in state of nature. Only constraint is that the natural rights we have, CAN NOT be given up, NOR can we take them away from someone else. They are given by God.

Appeals to Reason – the law of nature which governs nature – which teaches that, all being equal and independent, no one ought to harm another in his life, health, liberty or possessions.

Paradox: Unalienable rights = not mine to be given up or traded away, BUT more deeply and more fully mine, in sense that they are a part of me.

Thomas Jefferson – Declaration of Independence: Unalienable rights: Life, Liberty and Pursuit of Happiness.

Property – can arise before one is even governed – “the labor of his body and the work of his hands, we may say, are properly his…. As much land as a man tills, plants, improves, cultivates and can use the product of, so much is his property. He by his labor does, as it were, enclose it from the common.”

Idea that rights are unalienable seems to distance Locke from Libertarians:

Libertarians – we have a right to property in ourselves, and we can do with it what we want.

Locke – being truly free = recognizing that our rights are essential & unalienable = not mine to be given up or traded away.

But does Locke’s idea of property rights approach the Libertarian ideal?

South Africa vs USA pharmaceutical industry – generic drug vs aids (= “pirated version”) – violates intellectual/patent rights to save lives

Is Locke’s argument that private property arises without consent, valid?

For: Perhaps validates rights of natives (during Colonialism) to have share of property.

Against: European idea to defend Colonialism, i.e., natives did not “enclose” land

What becomes of natural rights when we enter into society?

No government can violate them! Perhaps this would gladden heart of Libertarian. BUT even though government is limited, what counts as my property (according to Locke) – my life and liberty – are left for the government to define. Necessary to look at what constitutes “legitimate government.”

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PART TWO: CONSENTING ADULTS

If we all have unalienable rights to life, liberty, and property, how can a government enforce tax laws passed by the representatives of a mere majority? Doesn’t that amount to taking some people’s property without their consent? Locke’s response is that we give our tacit consent to obey the tax laws passed by a majority when we choose to live in a society. Therefore, taxation is legitimate and compatible with individual rights, as long as it applies to everyone and does not arbitrarily single anyone out.

Theory of legitimate government: Government based on consent & also limited government

Fundamental Rights constrain what government can do, & those rights are Natural Rights – do not come from law or government.

Must show how can be a right to private property WITHOUT CONSENT – before government and legislators arrive on the scene.

There is a way to create property, not just in the things we hunt & gather, but in the land itself – provided there is enough left for others.

What is consent?

What can a legitimate government founded on consent do? What are its powers according to Locke?

Necessary first to look at what a state of nature (SON) is like. The SON is the condition that we decide to leave, and that’s what gives rise to consent. Why not stay there? Why bother with government at all?

Well, there are some inconveniences:

1) Everyone can enforce the law of nature. Everyone is an “executor” LITERALLY – if someone violates SON, he is an aggressor and can be punished, by EVERYONE/ANYONE. à no police, judge, jury à leads to: aggression, punishment, insecurity, violence

2) Necessary to protect the right to property.

The only way to escape from a SON is to undertake an act of consent where you agree to give up the enforcement power & to create a government or community where there will be a legislature to make law and where everyone agrees in advance to abide by whatever the majority decides.

What can the majority decide?

CANNOT violate one’s inalienable rights – life, liberty and property

How much power does the majority have and how limited is a government created by consent?

Limited by the obligation on the part of the majority to respect and enforce the fundamental rights of the citizens. Fundamental idea of Thomas Jefferson Declaration of Independence.

Limited government – case of taxation for redistribution? Is this a taking of property?

Locke: “The supreme power cannot take from any man any part of his property without his own consent.”

BUT

“Men therefore in society having property, they have such a right to the goods, which by the law of the community are theirs…”

è Government conventionally defines what one’s property is…

è “Governments cannot be supported without great charge, and it is fit that everyone who enjoys his share of the protection should pay out of his estate his proportion for the maintenance of it.” – “with one’s own consent, i.e., the consent of the majority, giving either by themselves or their representatives chosen by them.”

“Collective consent” = consent of the majority – can be via representatives

Can some people leave and return to a SON?

Implied consent in Social Contract?

Right to Life? Military conscription?

It’s not what we consent to that limits government, it’s what we lack the power to give away when we consent, that limits government.

Is Locke basically sanctioning an all-powerful government, despite all that he says about inalienable rights?

Locke is against arbitrary government, the arbitrary taking, the singling out of particular citizens or group of people to do something. But if there is a general law (a non-arbitrary rule of law) whereby the governments’ selection of individuals is not arbitrary, it doesn’t really lead to a violation of people’s basic rights.

Two grounds for Libertarian disappointment in Locke:

1) One’s natural rights are inalienable, and I don’t really “own” myself, after all. I can’t dispose of my life or liberty or property as I please

2) Once there is legitimate government for Locke, the only limits on government are limits on the arbitrary taking of life, liberty or property. If the majority promulgates a generally applicable law, and if it votes duly, according to fair procedures, then there is no violation of rights.

Dark side of Locke

This great theorist of consent came up with a theory of private property that didn’t require consent. This may have had something to do with Locke’s 2^nd concern: America.

When he talks about a SON, he’s not talking about an imaginary place – in the beginning he says: “All the world was America.”

And what was going on in America? The settlers were enclosing land and engaging in wars vs. the Native Americans. Locke – an administrator of one of the colonies – may have been as interested in providing a justification of private property through enclosure and cultivation, without consent, as he was with developing a theory of government based on consent – that would reign in kings and arbitrary rulers.

The question we’re left with is: What then becomes of consent? What work can it do? What is its moral force? What are the limits of consent?

Consent matters not only for governments, but also for markets.

Next will discuss questions of the limits of consent in the buying and selling of goods…