Locke and the Notion of Rights

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Locke and the Notion of Rights
2
Introduction

• John Locke (1632-1704)
• Source Two Treatises on Government

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Background

• Divine Right of Kings
• Let every soul be subject unto the higher
  powers. For there is no power but of God the
  powers that be are ordained of God. Whosoever
  therefore resisteth the power, resisteth the
  ordinance of God and they that resist shall
  receive to themselves damnation.
• (Romans 13 1-2)
• James II (r. 1685-88) took it seriously
• Ignored parliament
• Aimed to Re-establish Catholicism

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Background

• Glorious Revolution (1688)
• James II repl. By William Mary (Protestants)
• Monarchy preserved
• Parliament recognised
• Bill of Rights passed (1689)
• An Act Declaring the Rights and Liberties of the
  Subject and Settling the Succession of the Crown

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Locke vs. Hobbes

• Second Treatise rebuts Leviathan and justifies
  revolutions
• Where they agree
• The legitimacy of government is based on a tacit
  or implied social contract
• The social contract is a rational response to
  deficiencies within the state of nature

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Locke vs. Hobbes

• Second Treatise rebuts Leviathan and justifies
  revolutions
• Where they disagree. Locke thinks
• Humans have a natural moral conscience
• We would have (and recognise) basic rights in the
  state of nature, guaranteed us by natural law
• Natural Law is (as Aquinas thought)
• The order of the universe created by God
• Discoverable by reason
• Enjoins us to respect others natural rights

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What are Rights?

• Claims or Permissions
• Claim right
• I have a right to be paid
• my employer has a duty to pay me
• If I have a claim right to x from person s, then
  s has a duty to provide me with x

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What are Rights?

• Claims or Permissions
• Permission right
• I have a permit to park here
• I have no duty not to park here
• I cant legitimately be fined for parking here
• If I have permission to do x, then I have no duty
  not to do x

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What are Rights?

• Positive or Negative Claims
• A positive claim right is a right I have that
  another do something for me
• I have a right to be paid
• A negative claim right is a right I have that
  others do not do something to me
• I have a right to privacy

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What are Rights?

• Example 1
• Everyone has the right to an education
• A positive claim right?
• Everyone has someone who must educate them
• There is someone who must educate everyone
• Who? Government? UN? Bob?
• A negative claim right?
• No one can stop someone else being educated
• Taliban bad!

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What are Rights?

• Example 2
• Everyone has the right to free speech
• A positive claim right?
• There is someone who must publish everyone
• A negative claim right?
• No one can stop someone else speaking
• Protesters bad
• A permission right?
• I have no duty not to speak
• Fatwas bad

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What are Rights?

• Legal rights and Natural rights
• Legal rights created by legal arrangements
• American Constitution, English Bill of Rights,
  Geneva
• Natural rights are rights independent of laws
• Everyone has them
• Locke says theyre created by God
• Modern Human Rights are a secular version
• You can have a natural right even if the
  government (etc.) denies that right
• Chinese have right of free speech even after
  Tiananmen

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What are Rights?

• Example Declaration of Independence
• We hold these truths to be self-evident, that
  all men are created equal, that they are endowed
  by their Creator with certain unalienable Rights,
  that among these are Life, Liberty and the
  pursuit of Happiness.

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The Origin of the State

• Three rights Life, Liberty, and Property
• Life the right not to be killed or allowed to
  die.
• a negative claim right and a positive claim
  right.
• Liberty the right to do as we wish
• This is a permission (at least).
• Property involves both claims and permissions
  (and also powers).

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The Origin of the State

• Law enforcement in the State of Nature
• Along with (claim) rights comes duties
• Mostly respected in the state of nature, but not
  always
• Are rights and laws of any value without
  enforcement?
• In the state of nature, victims of rights
  violations (and their friends) will be the
  enforcers police, judge, jury, executioner
• This is inadequate
• Biased
• Ineffective
• A better method is required a state

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The Origin of the State

• The Social Contract
• The key idea is universal consent / majority
  rule.
• Transition to civil society takes place in two
  steps
• First, there is universal consent to form a
  society, the nature of which is to be determined
  by the majority
• Second, the majority choose a governing body
• The governing body will probably be a
  representative collective, but the majority could
  choose monarchy

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The Origin of the State

• Natural Rights and Positive Law
• Positive laws and regulations passed by the
  government must respect natural rights if it is
  to remain legitimate
• Natural rights function in civil society as a
  means of avoiding tyranny of the majority and the
  abuse of minorities
• Illegitimate governments may be overthrown
• Only in the face of severe, incorrigible, and
  repeated violations of citizens natural rights
• Example American War of Independence

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The Origin of the State

• Example Declaration of Independence
• That to secure these rights, Governments are
  instituted among Men, deriving their just powers
  from the consent of the governed.
• That whenever any Form of Government becomes
  destructive of these ends, it is the Right of the
  People to alter or to abolish it, and to
  institute new Government, laying its foundation
  on such principles and organizing its powers in
  such form, as to them shall seem most likely to
  effect their Safety and Happiness

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The Origin of the State

• Example Declaration of Independence
• Prudence, indeed, will dictate that Governments
  long established should not be changed for light
  and transient causes and accordingly all
  experience hath shown, that mankind are more
  disposed to suffer, while evils are sufferable,
  than to right themselves by abolishing the forms
  to which they are accustomed. But when a long
  train of abuses and usurpations, pursuing
  invariably the same Object, evinces a design to
  reduce them under absolute Despotism, it is their
  right, it is their duty, to throw off such
  Government, and to provide new Guards for their
  future security.

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The Origin of the State

• Consent to the Social Contract
• A government is legitimate only because everyone
  has tacitly yet freely agreed to abide by
  majority rule.
• How have we tacitly yet freely agreed to this?
• By choosing to remain in the community.
• But this means that it must be possible to opt
  out.
• Locke thought we could always migrate or choose
  the state of nature.

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Property

• How can there be such a thing as property in the
  state of nature?
• How do we acquire property?
• We are given it, earn it, trade for it.
• But a gift giver must own what they give, etc.
• Where does property originally come from?
• This is the question of original acquisition.

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Property

• Original Acquisition
• A thing becomes (your) property for the very
  first time if it is not owned by anybody and you
  mix your labour with it
• To mix your labour with something is to work to
  improve it or make it more useable
• A stick becomes your sculpture of a snake
• A pear-tree yields up its pears
• A continent becomes a colony
• you must not acquire so much that it spoils or so
  much that you cant make proper use of it
• you must leave enough and as good behind you