Land and Justice Party

Transcription

funding for this program is provided by additional funding provided by today we turn to John Locke on the face of it Locke is a powerful ally of the libertarian first he believes, as libertarians today maintain that there are certain fundamental individual rights that are so important that no government even a representative government even a democratically elected government can override them. not only that he believes that those fundamental rights include a natural right to life liberty and property and furthermore he argues that the right to property is not just the creation of government or of law the right to property is a natural right in the sense that it is pre-political it is a right that attaches to individuals as human beings even before government comes on the scene even before parliaments and legislatures enact laws to define rights and to enforce them Locke says in order to think about what it means to have a natural right we have to imagine the way things are before government before law and that's what Locke means by the state of nature. he says the state of nature is the state of liberty human beings are free and equal beings there is no natural hierarchy it's not the case that some people are born to be kings and others were born to be serfs we're free and equal in the state of nature and yet he makes the point but there's a difference between a state of liberty and the state of license and the reason is that even in the state of nature there is a kind of the law it's not the kind of law the legislatures enact it's the law of nature and this law of nature constrains what we can do even though we're free even though we're in the state of nature well what are the constraints? the only constraint given by the laws of nature is that the rights we have the national rights we have we can't give up nor can we take them from somebody else under the law of nature I'm not free take somebody else's life or liberty or property nor am I free to take my own life liberty or property even though I'm free, I'm not free to violate the laws of nature, I'm not free to take my own life or to sell myself into slavery or to give to somebody else arbitrary absolute power over me so where does this constraint you may think it's a fairly minimal constraint, but where does it come from? Well Locke tells us where it comes from and he gives two answers here's the first answer for men being all the workmanship of one omnipotent and infinitely wise maker, namely God, they're his property whose workmanship they are, made to last during his, not one another's pleasure. so one answer the question is why can't I give up my natural rights to life liberty and property well they're not strictly speaking yours after all you are the creature of God. God has a bigger property right in us a prior priority right now you might say that an unsatisfying unconvincing answer at least for those who don't believe in God what did Locke have to say to them well here's where Locke appeals to the idea of reason and this is the idea that if we properly reflect on what it means to be free we will be lead to the conclusion that freedom can't just be a matter of doing whatever we want I think this is what Locke means when he says the state of nature has a law of nature to govern it which obliges everyone 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 for possessions this leads to a puzzling paradoxical feature to Locke's account of rights familiar in one sense but strange in another it's the idea that out natural rights are inalienable what does unalienable mean? it's not for us to alienate them or to get them up to give them a way to trade them the way to sell them consider an airline ticket airline tickets are nontransferable or tickets to the patriots or to the red sox nontransferable tickets are unalienable I own them in the limited sense that I can use them for myself but I can't trade them away so in one sense an unalienable right, a nontransferable right makes something I own less fully mine but in another sense of unalienable rights especially where we're thinking about life liberty and property for a right to be unalienable, makes it more deeply more profoundly mine and that's Locke's sense of unalienable we see it in the American declaration of independence Thomas Jefferson drew on this idea of Locke unalienable rights to life liberty and as Jefferson amended Locke, to the pursuit of happiness. unalienable rights rights that are so essentially mine that even I can't trade them away or give them up so these are the rights we have in the state of nature before there is any government in the case of life and liberty I can't take my own life I can't sell myself into slavery anymore than I can take somebody else's life or take someone else as a slave by force but how does that work in the case of property? because it's essential to Locke's case that private property can arise even before there is any government how can there be a right to private property even before there is any government? Locke's famous answer comes in section twenty seven every man has a property in his own person this nobody has any right to but himself the labor of his body the work of his hands we may say are properly his so he moves as the libertarians later of would move from the idea that we own ourselves that we have property in our persons to the closely connected idea that we own our own labor and from that to the further claim that whatever we mix our labor with is unowned becomes our property whatsoever then he removes out of the state that nature has provided, and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property why? because the labor is the questionable property of the laborer and therefore no one but the laborer can have a right to what is joined to or mixed with his labor and then he adds this important provision at least where there is enough and as good left in common for others. but we not only acquire our property in the fruits of the earth in the deer that we hunt in the fish that we catch but also if we till and plow and enclose the land and grow potatoes we own not only the potatoes but the land the earth 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 encloses it from the commons. so the idea is that rights are unalienable seems to distance Locke from a libertarian libertarian wants to say we have an absolute property rate in our selves and therefore we can do with ourselves whatever we want Locke is not a sturdy ally for that view in fact he says if you take natural rights seriously you'll be led to the idea that there are certain constraints on what we can do with our natural rights, constraints given either by God or by reason reflecting on what it means really to be free and really to be free means recognizing that our rights are unalienable so here's the difference between Locke and the libertarians but when it comes the Locke's account of private property he begins to look again like a pretty good ally because he's argument for private property begins with the idea that we are the proprietors of our own person and therefore of our labor and there of the fruits of our labor including not only the things we gather and hunt in the state of nature but also we acquire a property right in the land that we enclosed and cultivate and improve there are some examples that can bring out the the moral intuition that our labor can take something that is unowned and make it ours though sometimes there are disputes about this there's a debate among rich countries and developing countries about trade related intellectual property rights it came to a head recently over drug patent laws western countries and especially the united states say we have a big pharmaceutical industry that develops new drugs we want all countries in the world to agree to respect the patents then there came along the aids crisis in south Africa and the American aids drugs were hugely expensive far more than could be afforded by most Africans so the south African government said we're going to begin to buy a generic version of the AIDS antiretroviral drug at a tiny fraction of the cost because we can find an Indian manufacturing company that figures out how the thing is made and produces it and for a tiny fraction of the cost we can save lives if we don't respect that patent and then the American government said no here's a company that invested research and created this drug you can just start mass-producing these drugs without paying the licensing fee so there was a dispute the US and the pharmaceutical companies sued the south African government to try to prevent their buying the cheap generic this they saw it, pirated version of an aids drug and eventually the pharmaceutical industry gave in and said all right you can do that but this dispute about what the rules of property should be of intellectual property of drug patenting in a way is the last frontier of the state of nature because among nations where there is no uniform law of patent rights and property rights it's up for grabs until by some act of consent some international agreement people enter into some settled rules. what about Locke's account of private property and how it can arise before government and before law comes on the scene is it successful? how many think it's pretty persuasive? how many don't find it persuasive? now let's hear from some critics what is wrong with Locke's account of how private property can arise without consent I think it's justifies European cultural norms as far as you look at how native Americans may not cultivated American land by their arrival in the America's that that contributed to the development of America which would have otherwise necessarily happened then or by that specific group so you think that this defense this defense of private property in land yes because it complicate original acquisitions if you only site the arrival of foreigners that cultivated the land I see, and what's your name? Rachelle Rachelle? Rachelle says this account of how property arises would fit what was going on in north America during the time of the settlement, the European settlement do you think Rochelle, that it's it's a way of defending the appropriation of the land indeed, because he is also you know, justifying the glorious revolution, so I don't think it's inconceivable that he's also justifying colonization as well well that's an interesting historical suggestion and I think there's a lot to be said for it what do you think of the validity of his argument though? because if you're right that this would justify the taking of land in north America from native Americans who didn't enclose it, if it's a good argument then Locke's given us a justification for that if it's a bad argument then Locke's given us a mere rationalization it is morally indefensible I'm leaning to the second one. You're leaning to the second one, but that's my opinion as well alright let's hear if there's a defender of Locke’s account of private property and it would be interesting if they could address Rachelle's worried that this is just a way of defending the the appropriation of land by the American colonists from the native Americans who didn't enclose it is there someone who will defend Locke on that point? you're ready are you going to defend Locke? but you're you're accusing him of justifying the European basically massacre of the native Americans but who says he's defending it maybe the European colonization isn't right you know maybe it's the state of war that he talked about in his second treatise, you know so the war is between the native Americans and the colonists, the settlers that might have been a state of war that we can only emerged from by an agreement or an act of consent and that's what would have been required yeah and both sides would have to agree to and carry out and everything but what about and what's your name? Dan. Dan, what about Rachelle's says this argument in section twenty seven and then in thirty two about appropriating land that argument if it's valid would justify the settlers appropriating that land and excluding others from it you think that argument’s a good argument? well does it kind of imply that the native Americans hadn't already done that? well the native Americans as hunter gatherers didn't actually enclose enclose land so I think Rochelle is on to something there what I wanted I go ahead Dan. At the same time he's saying that just by picking an acorn or taking a apple or maybe killing of buffalo on a certain amount of land that makes it yours because it's your labor and that's your labor would enclose that land so by that definition maybe they didn't have fences around little plots of land but didn't they were using it so by Locke's definitions, so maybe by Locke's definition the native Americans could have claimed a property rights in the land itself but they just didn't have Locke on their side as she points out. good okay that's good One more defender of Locke well I mean just to defend Locke, he does say there are some times in which you can't take another person's land for example you can't acquire land that is common property to people and in terms of American Indians I feel like they already have civilizations themselves and they were using land in common so it's kind of like an analogy to what he was talking about with like the common English property you can't take land that everyone has in common. That's very interesting and you can't take land unless you make sure that there's as much land as possible enough for other people take as well so if you're taking common, so you have to make sure whenever you take land or that there's enough let for other people to use that's just as good as the land that you took That's true, Locke says there has to be this right to private property in the earth is subject to the provision that there be as much and as good left for others what's your name. I'm Fang So Fang in a way agrees with Dan that maybe there is a claim within Locke's framework that could be developed on behalf of the native Americans here's the further question, if the right to private property is natural not conventional, if it's something that we acquire even before we agree to government how does that right constrain what the legitimate government can do in order for finally to see, whether Locke is an ally or potentially a critic of the libertarian idea of the state we have to ask what becomes of our natural rights once we enter into society we know that the way we enter into society is by consent by agreement to leave the state of nature and to be governed by the majority and by a system of laws, human laws but those human laws our only legitimate if they respect our natural rights if they respect our inalienable rights to life liberty and property No parliament no legislature however democratic its credentials can legitimately violate our natural rights. this idea that no law can violate our right to life liberty and property would seem to support the idea of a government so limited that it would gladden the heart of the libertarian after all but those hearts should not be so quickly gladdened because even though for Locke the law of nature persists once government arrived even though Locke insists on limited government government limited by the end for which it was created namely the preservation of property even so there's an important sense in which what counts as my property what counts as respecting my life and liberty are for the government to define that there be property that there be respect for life and liberty is what limits government but what counts as respecting my life and respecting my property that is for governments to decide and define how can that be is Locke contradicting himself or is there an important distinction here in order to answer that question which will decide Locke's fit with the libertarian view we need to look closely at what legitimate government looks like for Locke, and we turn to that next time. Nikola, if you didn't think you'd get caught would you pay your taxes umm, I don't think so I would rather have a system personally that I could give money to exactly those sections of the government that I support and not just blanket support everything. you'd rather be in the state of nature at least on April fifteenth last time we began to discuss Locke's state of nature his account of private property his theory of legitimate government which is government based on consent and also limited government Locke believes in certain fundamental rights that constrain what government can do and he believes that those rights are natural rights not rights that flow from law or from government and so Locke's great philosophical experiment is to see if he can give an account of how there could be aright of private property without consent, before government and legislators arrive on the scene to define property that's his question that's his claim. there is a way, Locke argues, to create property, not just in the things we gather and hunt but in the land itself provided there is enough and it's good enough for others today I want to turn to the question of consent which is Locke’s second big idea, private property is one consent is the other what is the work of consent people here have been invoking the idea of consent since we began since the first week you remember when we were talking about pushing the fat man off the bridge someone said but he didn't agree to sacrifice himself it would be different if he consented or when we were talking about the cabin boy killing and eating the cabin boy some people said well if they had consented to a lottery it would be different then it would be all right so consent has come up a lot and here in John Locke we have one of the great philosophers of consent consent is an obvious, familiar idea in moral and political philosophy Locke says that legitimate government is government founded on consent and who nowadays would disagree with him? sometimes when ideas of political philosophies are as familiar as Locke’s ideas about consent it's hard to make sense of them or at least to find them very interesting but there are some puzzles some strange features of Locke’s account of consent as the basis of legitimate government and that's what I’d like to take up today one way of testing the possibility of Locke's idea of consent and also probing some of its perplexities, is to ask just what a legitimate government founded and consent can do what are its powers according to Locke, well in order to answer that question it helps to remember what the state of nature is like. remember the state of nature 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, what's Locke's to answer to that question he says there's some inconveniences in the state of nature but what are those inconveniences? the main inconveniences is that everyone can enforce the law of nature everyone is an enforcer or what Locke calls the executor of the state of nature and he means executor literally if someone violates the law of nature he's an aggressor he's beyond reason and you can punish him and you don't have to be too careful or fine about gradations of punishment in the state of nature you can kill him you can certainly kill someone who comes after you tries to murder you that's self-defense but the enforcement power the right to punish everyone can do the punishing in the state of nature and not only can you punish with death people who come after you seeking to take your life you can also punish a thief who tries to steal your goods because that also counts as aggression against the law of nature if someone has stolen from a third party you can go after him why is this well violations of the law of nature are an act of aggression there's no police force there are no judges, no juries so everyone is the judge in his or her own case and Locke observes that when people are the judges of their own cases they tend to get carried away and this gives rise to the inconvenience in the state of nature people over shoot the mark there's aggression there's punishment and before you know it everybody is insecure in their enjoyment of his or her unalienable rights to life liberty and property now he describes in pretty harsh and even grim terms what you can do to people who violate the law of nature one may destroy a man who makes war upon him for the same reason that he may kill a wolf or a lion such men have no other rule, but that of force and violence, listen to this and so may be treated as beasts of prey those dangerous and noxious creatures that would be sure to destroy you if you fall into their power so kill them first so what starts out as a seemingly benign state of nature where everyone's free and yet where there is a law and the law respects people's rights and those rights are so powerful that they're unalienable what starts out looking very benign once you look closer is pretty fierce and filled with violence and that's why people want to leave how do they leave well here's where consent comes in the only way to escape from the state of nature is to undertake an active of consent where you agree to give up the enforcement power and to create a government or a community where there will be a legislature to make law and where everyone agrees in advance everyone who enters agrees in advance to abide by whatever the majority decides but then the question and this is our question and here's where I want to get your views then the question is what powers what can the majority decide now here it gets tricky for Locke because you remember alongside the whole story about consent and majority rule there are these natural rights, the law of nature these unalienable rights and you remember they don't disappear when people join together to create a civil society so even once the majority is in charge the majority can't violate you' re inalienable rights can't violate your fundamental right to life liberty and property so here's the puzzle, how much power does the majority have how limited is the government created by consent? it's limited by the obligation on the part of the majority to respect and to enforce the fundamental natural rights of the citizens they don't give those up we don't give those up when we enter government that's this powerful idea taken over from Locke by Jefferson in the Declaration unalienable rights so let's go to our two cases remember Michael Jordan, Bill Gates libertarian objection to taxation for redistribution well what about Locke’s limited government is there anyone who thinks that Locke does give grounds for opposing taxation for redistribution anybody? if you, if the majority rules that there should be taxation even if the minority should still not have to be taxed because that's taking away property which is one of the rights of nature so and what's your name? Ben so if the majority taxes the minority without the consent of the minority to that particular tax law it does amount to the taking of their property without their consent and it would seem that Locke should object to that you want some textual support for your reading of Locke, Ben I brought some along just in case you raised it if you've got, if you have your text look at one thirty eight passage one thirty eight the supreme power by which Locke means legislature, cannot take from any man any part of his property without his own consent for the preservation of property being the end of government and that for which men enter into society it necessarily supposes and requires that people should have property that was the whole reason for entering a society in the first place to protect the right to property and when Locke speaks about the right to property he often uses that as a kind of global term for the whole category, the right to life liberty and property so that part of Locke at the beginning of one thirty eight seems to support Ben's reading but what about the part of one thirty eight if you keep reading Men therefore in society having property they have such a right to the goods which by the law of the community are theirs, look at this, and that no one can take from them without their consent and then at the end of this passage we see he said so it's a mistake to think that the legislative power can do what it will to dispose to the estates of the subject arbitrarily or take any part of them at pleasure here's what's elusive on the one hand he says the government can't take your property without your consent he's clear about that but then he goes on to say and that's the natural right to property but then it seems that property, what counts as property is not natural but conventional defined by the government the goods which by the law of the community are theirs and the plot thickens if you look ahead to section one forty in one forty he says governments can't be supported without great charge. Government is expensive and it's fit that everyone who enjoys his share of the protection should pay out of his estate and then here's a crucial line but still it must be with his own consent i.e. the consent of the majority giving it either by themselves or through their representatives so what is Locke actually saying property is natural in one sense but conventional in another it's natural in the sense that we have a fundamental unalienable right that their be property that the institution of property exist and be respected by the government so an arbitrary taking property would be a violation of the law of nature and would be illegitimate but it's a further question here's the conventional aspect of property, it's a further question what counts as property, how it's defined and what counts as taking property, and that's up to the government so the consent here we're kind of back to our question what is the work of consent what it takes for taxation to be legitimate is that it be by consent not the consent of Bill Gates himself that he's the one who has to pays the tax but by the content that he and we, all of us within the society gave when we emerged from the state of nature and created the government in the first place it's the collective consent and by that reading it looks like consent is doing a whole lot and the limited government consent creates isn't all that limited does anyone want to respond that or have a question about that? go ahead, stand up well I'm just wondering what Locke's view is on once you have a government that's already in place whether it is possible for people who are born into that government to then leave and return to the state of nature I mean, I don't think that Locke mentioned that at all. what do you think? well I think as the convention it would be very difficult to leave the government because you were no longer there's because nobody else is just living in the state of nature, everybody else is now governed by this legislature what would it mean today, you're asking and what's your name? Nicola to leave the state, suppose you wanted to leave civil society today, you want to withdraw your consent and return to the state of nature. Well because you didn't actually consent to it, you were just born into it, it was your ancestors who joined you didn't sign the social contract I didn't sign all right so what does Locke say there I don't think Locke says that you have to sign anything I think he says that it's kind of implied consent by willingly taking government services you are implying you're consenting to the government taking things from you all right so implied consent, that's a partial answer to this challenge now you may not think that implied consent is as good as the real thing is that what you're shaking your head about Nicola? speak up stand up and I don't think that necessarily just by utilizing the government's you know various resources that we are necessarily implying that we agree with the way that this government was formed or that we have consented to actually join into the social contract so you don't think the idea of implied consent is strong enough to generate any obligation at all to obey government not necessarily no, Nicola if you didn't think you'd get caught would you pay your taxes umm I don't think so I would rather have a system, personally, that I could give money to exactly those sections of the government that I support and not just blanket support everything. you'd rather be in the state of nature of at least on April fifteenth but what I'm trying to get at is you consider that you're under no obligation since you haven't actually entered into an active consent but for prudential reasons you do what you're supposed to do according to the law. exactly. if you look at it that way then you're violating another one of Locke's treatises which is that you can't take anything from anyone else like you can't you can't take the government's services and then not give them anything in return if you if you want to go live in a state of nature that's fine but you can't take anything from the government because by the government's terms which are the only terms under which you can enter the agreement say that you have to pay taxes to take those things. so you're saying that Nicola can go on back to the state of nature if she wants to but you can't drive on Mass Ave. Exactly I want to raise the stakes beyond using Mass Ave, and even beyond taxation what about life what about military conscription yes, what do you think, stand up first of all we have to remember that sending people to war is not necessarily implying that they'll die, I mean obviously you're not raising their chances here, it's not a death penalty so if you're going to discuss whether or not military conscriptions is equivalent to you know suppressing people's right to life you shouldn't approach it that way secondly the real problem here is Locke has this view about consent and natural rights but you're not allowed to give up your natural rights either so the real question is how does he himself figure it out between I agree to give up my life give up my property when he talks about taxes or military conscription for the fact, but I guess Locke would be against suicide and that's still you know my own consent I mean. Good. What's your name? Eric. so I Eric brings us back to the puzzle we've been wrestling with since we started reading Locke on the one hand we have these unalienable rights to life liberty and property which means that even we don't have the power to give them up and that's what creates the limits on legitimate government 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 that's the that's the point at the heart of Locke's whole account of legitimate government but now you say well if we can't give up our own life, if we can't commit suicide if we can't give up our rights to property how can we then agree to be bound by a majority that will force us to sacrifice our lives or give up our property does Locke have a way out of this or is he basically sanctioning an all-powerful government despite everything he says about unalienable rights does he have a way out of it? who would speak here in defense of Locke or make sense find a way out of this predicament all right go ahead. I feel like there's a general distinction to be made between the right to life that individuals possess and the the fact that the government cannot take away an individual's right to life I think if you look at conscription as the government picking out certain individuals to go fight in war then that would be a violation of the rights their national right to life on the other hand if you have conscription of let's say a lottery for example then in that case I would view that as the population picking their representatives defend them in the case of war the idea being that since the whole population cannot go out there to defend its own right of property it picks its own representatives through a process that's essentially random and the these these sort of elected representatives go out and fight for the rights of the people it looks very similar, it works just like an elected government in my opinion alright so an elected government can conscript citizens to go out and defend the way of life the community that makes the enjoyment of rights possible. I think I think it can because to me it seems that it's very similar to the process of electing representatives the legislature although here it's as if the government it's electing by conscription certain citizens to go die for the sake of the whole is that consistent with respect for a natural right to liberty well what I would say is there's a distinction between picking out individuals and having a random choice of individuals. between let me make sure, between picking out individuals, well I don't, let me what's your name? Gogol. Gogol says there's a difference between picking out individuals to lay down their lives and having a general law I think this is on I think this is the answer Locke would give, actually Locke is against arbitrary government he's against the arbitrary taking the singling out of Bill Gates to finance the war in Iraq he's against singling out a particular citizen or group of people to go off and fight but if there's a general law such that the the government's choice the majority's action is non arbitrary, it doesn't really amount to a violation of people's basic rights what does count as a violation is an arbitrary taking because that would essentially say not only to Bill Gates, but to everyone there is no rule of law there is no institution of property because at the whim of the king or for that matter of the parliament we can name you or you to give up your property or to give up your life but so long as there is a no arbitrary rule of law then it's permissive now you may say this doesn't amount to a very limited government and the libertarian may complain that Locke is not such a terrific ally after all the libertarian has two grounds for disappointment in Locke first that the rights are unalienable and therefore I don't really own myself after all I can't dispose of my life or my liberty or my property in a way that violates my rights that's disappointment number one, disappointment number two once there is a legitimate government based on consent the only limits for Locke are limits on arbitrary the takings of life or of liberty or of property but if the majority decides or if the majority promulgates a generally applicable law and if it votes duly according to fare procedures then there is no violation whether it's a system of taxation or system of conscription so it's clear that Locke is worried about the absolute arbitrary power of kings but it's also true and here's a darker side of Locke that this is great theorist of consent came up with a theory of private property that didn't require consent that may and this goes back to the point Rochelle made last time, may have had something to do with Locke's second concern which was America you remember when he talks about the state of nature 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 we're enclosing land and engaged in wars with the native Americans Locke who was an administrator of one of the colonies may have been as interested in providing a justification for private property through enclosure without consent through enclosure and cultivation 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 the fundamental question we still haven't answered 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 from markets and beginning next time we're going to take up questions of the limits of consent in the buying and selling of goods don't miss the chance to interact online with other viewers of Justice join the conversation, take a pop quiz watch lectures you've missed, and a lot more. Visit justiceharvard.org it's the right thing to do funding for this program is provided by additional funding provided by