John Locke is not a Libertarian, Minarchism Revisited

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When I first began writing about libertarianism back in 2018, my previous comments about minarchism elicited some comments from some of my libertarian friends. I’m going to begin this post by flagging one comment in particular, offered by Dr. J (not the Dr. J of basketball renown; This is Dr. Jason Jewell, a college friend of mine, a Faulkner University professor and affiliated scholar at the Mises Institute).

Jason writes:

Minarchism is self-defeating only if Lockean social contract theory is self-defeating. Minarchist libertarians usually resort to some sort of contract theory that justifies a “night-watchman” state, e.g. the state can defend property because each individual has the natural right to do the same, etc. So I think you’d need to deal with contract theory in some way to make this criticism stick.

Also, folks like Hayek aren’t strictly reasoning from the NAP. Hayek was an old-school classical liberal just seeking to maximize individual freedom, and he was willing to make pragmatic concessions here and there on things like the welfare state if he could get people to give up central planning.

I appreciate Jason’s observation and want to use it as the launching point for this week’s post.

Minarchism relies on social contract theory

Why John Locke was not a libertarian

Jason is correct to observe that minarchists often rely on social contract theory to justify the minimalist state. If I’m understanding Jason correctly, he is suggesting that my previous post neglects to attend to one of the major philosophical streams that informs minarchist visions of the state: Lockean social contract theory. Jason seems to be correct here.

In this post it will be considered whether or not John Locke himself resolves the problem pointed to in the previous post. Locke does–to some degree–solve the problem but only because Locke himself is not the libertarian that some interpreters would have us believe.

With regard to Hayek and the NAP, it’s hard for me to know what to take from Jason’s comment. If I’m understanding Jason correctly he seems to be suggesting that the market interventions that Hayek himself defends in Serfdom are not so much principled commitments flowing from Hayek’s own theory as they are Hayek’s pragmatic acquiescence to the welfare state.

The principal problem I see with this interpretation is that it does not make much sense of the language that Hayek himself employs when he defends state-sponsored social insurance and laws regulating working hours. Hayek doesn’t frame this commitment as a pragmatic departure on his part, a way of getting along with the welfare state. He says that such a scheme is entirely compatible with a commitment to freedom. In other words, Hayek seems to think that what he is advocating here is consistent with the thrust of his argument in Serfdom.

I find Hayek’s argument frustrating here in that he doesn’t do much to explain why he thinks guaranteeing security to individuals is compatible with his own definition of liberty. But enough about Hayek.

Recall that in my last post I argued that minarchism (i.e. the libertarian perspective that defends the legitimacy of a minimalist state) is self-defeating. My argument was that minarchism offers no distinctively libertarian basis upon which it is possible to justify even the limited actions of the minimalist state.

When a state assumes the role of protecting every member, and when that state prohibits individuals from executing justice for themselves when they believe their rights are violated, how is this not just another example of aggression?

Can a state exist that does not violate the rights of persons?

John Locke (1632-1704) was a 17th-century English philosopher, a major figure in what is today known as the social contract tradition. In his Second Treatise of Government, Locke makes the case that a limited state can exist that upholds the rights of persons (note: parenthetical citations below point to sections in Locke’s Second Treatise). The question is, does Locke’s argument offer sufficient grounds for justifying a minimalist state, or is it too self-defeating?

It will be assumed for the moment that readers are not familiar with Lockean social contract theory, begging forgiveness if the next few paragraphs are overly elementary to some readers. Without getting too bogged down in the nuances of Locke’s account of the origins of private property (an important conversation related to the topic of my post here, but something I haven’t the space to tackle) and the Lockean Proviso (also very important to understanding Locke, but not immediately relevant to what I’m focusing on here), I’m going to summarize the story that Locke tells that leads him to his conclusion about the legitimacy of a limited state.

How John Locke concludes the legitimacy of the limited state

Locke begins by asking us to imagine a world in which there are no states. Let’s call this state what Locke calls it, the “state of nature.” In the state of nature every individual possesses a natural right to their body. Every person has a natural right to labor and reap the benefits of what they produce when they mix their labor with nature.

If I am a talented wood craftsman, for example, and I see an oak tree in the forest, a tree that I proceed to cut down and carve into a fine oak chest, I can legitimately claim that this chest is mine. I have a right to this chest because I mixed my labor with nature in a way that gives me a rightful claim to what I have produced. I have this right, and so does every other individual in the state of nature (Note: I’m glossing over a lot of academic discussion about Locke’s theory of property).

My right to mix my labor with nature is not mine alone. In the state of nature every person lives in “a State of perfect freedom” and “Equality” (§4). In the state of nature there is no government that takes responsibility for enforcing my right or protecting me from those thieves that might steal what is mine. In the state of nature when my right is violated–say that an armed robber enters my home and takes that fine oak chest I created–I have a natural right to punish the thief and to exact compensation from him. He has violated my rights.

And here again, every other individual has this same right to punish and seek compensation. Says Locke, “every Man hath a Right to punish the Offender, and be Executioner of the Law of Nature” (§8).

What would life be like in this state of nature?

Locke’s vision here is not as bleak as that of his 17th-century contemporary Thomas Hobbes (1588-1679). Hobbes’s pessimistic account of human nature leads him to conclude that life in the state of nature would be terrible. With individuals being driven to-and-fro by their unchecked desires and impulses, conflict and unending war are the inevitable outcomes. Here life can only be “nasty, brutish, and short.”

Locke’s assessment of human nature is more modest. Yes, humans are acquisitive and self-interested, but humans can also embody the positive moral sentiments of compassion and other-regard. Human nature encompasses both virtue and vice. Thus, it would be quite possible for people to continue living in this state, and Locke seems to believe that there are moments historically in which humans have lived as such. Says Locke, “Men living together according to reason, without a common Superior on Earth, with Authority to judge between them is properly the State of Nature” (§19).

But this more positive assessment raises a critical question: if individuals could live in this way, each person asserting their natural right with no sovereign to interfere, what would ever compel individuals to leave the state of nature?

Hobbes’s pessimistic assessment of human nature points us to an obvious conclusion: in the state of nature our mutual fear and desire for security leads us to give up our natural right to all things. We are willing to forsake our natural rights, giving them over to a single sovereign who assumes responsibility for adjudicating our conflicts, enforcing law, and protecting us from the chaos that would ensue absent the sovereign’s rule.

But what about Locke? While life in the state of nature is possible and endurable, Locke argues that individuals will inevitably discover the disadvantages that attend life in this state. Yes, it is true that in the state of nature every individual possesses natural rights and that we will live alongside other individuals who are neither brutes nor saints. But even if humans have the capacity for compassion and other regard, in the state of nature what do we do when we disagree about what belongs to whom?

Resolving intractable disputes of property rights claims

I believe the oak chest is mine; you believe it is yours. I appeal to heaven, and so do you. How do we resolve this conflict? In the state of nature each of us asserts what we believe to be our right, and there is no superior who can adjudicate the legitimacy of our claims. Conflicting property claims will too easily devolve into a conflict of wills in which brute force wins out over reasoned assessment of our claims.

Conflict over property claims is not the only disadvantage we will encounter in the state of nature. Because of our natural self-love, individuals have a propensity to overvalue their losses when their rights are violated. Because individuals have a right to punish violators in the state of nature, this propensity will lead individuals to exact punishment and seek compensation that is excessive.

Furthermore, in the state of nature there will be circumstances in which a person can claim that their rights have been violated while lacking the power to punish the offender. What do I do if that oak chest was stolen from me and the thief’s brute force is more powerful than my reasoned objections? These disadvantages demand some solution.

Locke concludes that these disadvantages offer individuals sufficient reason to leave the state of nature. Instead of continuing to assert their executive power and to enforce their natural rights, people in the state of nature enter into a “social contract” in which they give up the “Executive Power of the Law of Nature” and “resign it to the publick” (§88).

The commonwealth that individuals establish serves as the executive arbiter of the Law, responsible for adjudicating property claims, punishing violators, and protecting the natural rights of each person who is a member of the community.

Thus, political society emerges as a constructive solution to the problems of persons seeking to secure their natural rights. States act legitimately when they protect the natural rights of those who have contracted together to create this society. The “fundamental natural Law” that governs the Legislative power of the state is, says Locke, “the preservation of Society, and (as far as will consist with the public good) of every person in it” (§134).

So let us connect this summary to minarchism

Remember that minarcho-libertarians assert that only a limited state can be justified (though recall here that minarchists divide over precisely where the limit line is to be drawn). I argued in my previous post that minarchism is self-defeating because minarchists offer no libertarian grounds that can justify the actions of the minimalist state. Locke offers one possible response to this criticism. Like minarchists, Locke argues that protection of property rights is a paramount function of the limited state, and he argues that consent is essential to the state’s legitimacy:

“…The Supream Power 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 the People should have Property, without which they must be suppos’d to lose that be entring into Society, which was the end for which they entered into it, too gross an absurdity for any Man to own. Men therefore in Society having Property, they have such a right to the goods, which by the Law of the Community are theirs, that no Body hath a right to take their substance, or any part of it from them, without their own consent; without this, they have no Property at all”(§138).

As this paragraph stands, Locke’s argument seems tailor-made for the minarchist position. The minarchist objection to contemporary states, after all, is that they regularly violate the property rights of citizens when they tax them to pay for social welfare benefits, healthcare, and the like. Locke here seems to be arguing that states function legitimately when they safeguard the property rights of citizens who have given up their individual executive power to enforce their rights.

Minarchists also point to the coercive, non-consensual way that the state confiscates the property of taxpayers (i.e. consider once again Citizen X’s objections to the state from earlier posts in this series), so Locke’s claim that consent is essential to the legitimacy of the state at first glance seems to suggest a minarchist response to my criticism: the only actions that are legitimate on the part of the state are those that I consent to.

Has John Locke solved the minarchist problem?

I don’t believe that Locke has. The fact that Locke’s argument is not self-defeating is because Locke is not a libertarian. Or more precisely, the appearance of sympathy between Locke’s argument and minarchism is an illusion; Locke’s argument depends on two crucial assumptions of Locke’s that most minarchists reject.

First, Locke’s view of consent allows that there are circumstances when states function legitimately against the explicit objections of some community members. For most libertarians when citizen X objects to being taxed his explicit rejection of the tax illustrates that the tax is non-consensual. Locke offers up a more layered view of consent in which the implicit consent that individuals express when they leave the state of nature to enter into a political community takes priority over their explicit objections in moments when they conflict with the will of the majority.

The formation of political community (i.e. what happens when we agree to leave the state of nature) incorporates individuals into a single political body (a “Body Politick”) “wherein the Majority have a Right to act and conclude the rest” (§95). Locke explicitly rejects the idea that political consent must be tied to the individual wills of each member of the community. Indeed, to require explicit consent of every member would render political communities unstable, fleeting and ineffective:

“For if the consent of the majority shall not in reason, be received, as the act of the whole, and conclude every individual; nothing but the consent of every individual can make any thing to be the act of the whole: But such a consent is next to impossible ever to be had, if we consider the Infirmities of Health, and Avocations of Business, which in a number, though much less than that of a Common-wealth, will necessarily keep many away from the publick Assembly. To which if we add the variety of Opinions and contrariety of Interests, which unavoidably happen in all Collections of Men, the coming into Society upon such terms, would be only like Cato’s coming into the Theatre, only to go out again. Such a Constitution as this would make the mighty Leviathan of a shorter duration, than the feeblest Creatures;…For where the majority cannot conclude the rest, there they cannot act as one Body, and consequently will be immediately dissolved again” (§98).

Thus, when Citizen X objects to being taxed to fund universal police protection and military defense, Locke’s argument suggests a possible response, as follows:

Citizen X: ““I don’t want to submit to your authority. I’m perfectly willing to purchase my own protection, and I’m more confident that a private personal defense contractor will provide better protective service to me than a bloated, inefficient state. Further, I object to your demand that I pay taxes to subsidize the cost of the protective services you are providing to others. If other people want your police protection, make them pay for it. I see no reason why I must pay so that other people get access to the services you are offering.”

Locke: “No, Citizen X, because you are a member of our community, you have given your implicit consent to this contract that now binds us together. In leaving the state of nature, you have given up your executive power to preserve your natural rights. There is now a single sovereign responsible for this. Your explicit objections to paying for police protection and military defense are in conflict with the will of the majority, which agrees that you and other members are obligated to pay for police protection and military defense. We can’t have a political community that is beholden to individual will. To allow your objection any sway here would make our community impossible to sustain. The consent of the majority is a reflection of your own implicit consent, the very basis of our social contract.”

Locke himself insists that governments act legitimately when they tax citizens to pay for the services they provide, and he likewise subsumes individual consent into the consent of the majority:

“‘Tis true, Governments cannot be supported without great Charge, and ’tis fit every one who enjoys his share of the Protection, should pay out of his Estate his proportion for the maintenance of it. But still it must be with his own Consent, i.e. the Consent of the Majority, giving it either by themselves, or their Representatives chosen by them” (§140).

Taking stock of Locke’s argument, readers would do well to anticipate the libertarian pushback against Locke. Locke seems to be saying that my implicit consent to a social contract (a contract that I never explicitly agreed to! This is an imaginary contract! I was born into a political community that I never explicitly chose!) takes priority over my explicit objections to taxation. He is saying that my membership in my community is a reflection of my implicit consent.

John Locke’s view of the public good should concern libertarians

One reason for libertarians to be concerned with Locke’s argument is that it implies something about the legitimacy of majorities to enforce policies that are in service to what Locke calls the “publick good,” policies that for some majorities will extend the reach of the state far beyond what minarchists will tolerate.

Locke himself similarly extends his own view of the legitimate function of the state in his “Essay on the Poor Law,” where he suggests that England establish publicly-funded working schools in English parishes responsible for teaching poor children skills that would enable them to become self-sufficient laborers, less dependent on public provision.

Locke’s own defense of something resembling a state-funded system of education for poor children points to a second more interesting facet of Locke’s thought that suggests closer affinity between his position and modern welfare state liberalism than minarchism. Matt Zwolinski, a contributor at the Bleeding Heart Libertarian blog site, made this great observation.

For Locke the law of nature that is the foundation for individual property rights is the same law that mandates a moral obligation to, in Locke’s words “preserve the rest of Mankind” (§6). The implications of this claim are made more explicit in a passage from Locke’s First Treatise (with credit to Zwolinski for drawing my attention to this quote):

“But we know God hath not left one man so to the mercy of another, that he may starve him if he please: God the Lord and Father of all has given no one of his children such a property in his peculiar portion of the things of this world, but that he has given his needy brother a right to the surplusage of his goods; so that it cannot justly be denied him, when his pressing wants call for it: and therefore no man could ever have a just power over the life of another by right of property in land or possessions; since it would always be a sin, in any man of estate, to let his brother perish for want of affording him relief out of his plenty. As justice gives every man a title to the product of his honest industry, and the fair acquisitions of his ancestors descended to him; so charity gives every man a title to so much out of another’s plenty, as will keep him from extreme want, where he has no means to subsist otherwise: and a man can no more justly make use of another’s necessity, to force him to become his vassal, by with-holding that relief, God requires him to afford to the wants of his brother, than he that has more strength can seize upon a weaker, master him to his obedience, and with a dagger at his throat offer him death or slavery” (4.42).

As Zwolinski correctly notes, Locke is not simply saying that it is a good, charitable thing for those who have means to give to those who do not. Locke is saying that those who are in need have a title to the plenty of others. Says Zwolinski,

“He is saying that the needy person has ‘title’ to the rich person’s surplusage – and it’s hard to see how ‘title’ could mean anything short of an enforceable right. If, then, the purpose of the state is to enforce natural rights, then it looks very much like it will be permissible, perhaps obligatory, for the state to have some redistributive policies.”

Conclusion: John Locke’s Minimal State Appeals to Implicit Consent

For the purposes of brevity, a conclusion to this post–for now–is to shortly return to the question that spurred this post. Does Locke resolve the minarchist problem? Yes, he does. Locke justifies the minimalist state by appealing to the implicit consent of citizens who have given up their executive power, a consent that takes priority over their explicit objections when those objections are in conflict with the majority’s will. But how minimal is Locke’s state in reality?

Locke himself defends poor laws that include the public provision of education to poor children, and his view of natural law gives ample reason for justifying this provision as well as other provisions that enforce the title that those in need have on the surplus of the wealthy. If minarchists are willing to join hands with Locke this far, then liberals like me will welcome them to our fold. The minarchist label seems inaccurate, but we will even let them keep it and get it on to the business of discussing the proper limits of this state that has commanded our implicit consent.