Greece, Rome, and the Bill of Rights (16 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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to show that property, and equality, could be explained in a way consistent with natural law."

42

Quentin Skinner notes the significance of the fact that Locke nowhere in his
Two Treatises
appeals to the prescriptive force of the ancient English constitution. By his silence, Skinner surmises, Locke is tacitly rejecting one of the most persuasive forms of political reasoning available to him, the appeal to history.
43
Instead, Locke emphasizes the link between natural law and natural rights that lay in the belief in human reason, now freed from Aquinas's attribution of reason to God and attached instead to the rule of law. This version of natural rights holds that human beings are born endowed with such rights, not granted them by any superior authority.
For Locke, the function of natural law and of the state is to establish as inalienable the rights of the individual. In this state of nature, individuals are bound to be peaceful and take care of each other. Given the human predisposition to look out first for oneself and to violate the rights of others, however, it is necessary to set up civil government. Within the framework of mutual agreement or "social contract," human beings set up a single political body. This is not a contract between ruler and ruled but among free individuals. All participants must assent to this body politic, either tacitly or explicitly; by remaining in it as an adult, assent is implied. Even though individuals thus transfer to government the right to make and enforce laws and to decide on war and peace, they still retain their own powers of judgment. If they see tyranny developing over a long course of time, it is their rightalthough one never exercised lightlyto rebel against the tyrant and establish a new government. This "dramatically populist claim"
44
of a right to resistance resides in the whole body of the people.
Locke alters the tradition of natural law theory by according a central position to the state of nature and the social contract. He does not view nature as does Hobbes, as the war of all against all. Rather, it is a state of "peace, good-will, mutual assistance, and preservation" and also

 

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of equality in political authority, made up of ''creatures of the same species and rank, promiscuously born to all the same advantages of nature and the use of the same faculties ... without subordination or subjection."

45
For Locke, natural equality was the basis of the doctrine of consent to government.

Locke's accomplishment was that he moved from worshiping natural law as a static abstraction to affirming it as the moral infrastructure of tolerance and freedom, providing what we might call a pre-ethical proposition. That is, natural law now underlies rather than determines human freedom and worth.
Unlike Grotius or Pufendorf, Locke held a view of the social contract that did not permit persons to enslave themselves or to submit to absolute government. For Locke, the natural freedom of human beings was not merely a descriptive fact of the state of nature, as in Hobbes's theory, but was a moral
right
: "Every man is born with ... a right of freedom to his person which no other man has a power over."
46
Among the social contractarians, Locke is thus the only unqualified liberal.
47
The essence of his liberalism is not his belief in the social contract but rather his conception of individuals and the limitation on the state's function and power, which may or may not derive from the social contract. In this concept, the dignity of persons is ultimately independent of their interaction with other people; that is, it does not depend absolutely on their position in the community, as it did, say, with Aristotle. With Locke, one could leave society, at least theoretically, and still maintain one's dignity. With Aristotle, this is impossible.
48
Locke thus incorporates human beings into nature, closing the mind-body distinction that is at least as old as Plato.
Locke on Property
Locke devised a remarkably workable political theory in part because of his practical solution to the dilemma of private property. By incorporating a doctrine of private

 

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ownership into natural rights theory, he achieved a pragmatic synthesis that avoided the extremes of both communitarianism and greed.

49
Locke's thesis is controversial, because anything having to do with property is always controversial. Its great strength, however, is that it seems to take the actual human situation into account.

Natural law theory from Aristotle to Rousseau and even the positivists holds that we come into existence with certain inherent rights, first of all, to life and property. The integrity of one's own being and security depends on the ability to secure one's life and well-being. That safeguarding of the person stems from the first natural right of all, the right of one's own individual life, which lies at the basis of the legal order. From this perspective, property is the direct outcome of ego and therefore not an arbitrary fabrication but a natural extension of personality. H. A. Rommen states the thesis in bold form: "In the long run man cannot exist, cannot make good his right to marriage or to a family or to security of life, and cannot maintain his sphere of individual right to a life of his own, unless he is entitled to ownership through the acquisition of goods. The right to private property follows from the physical, ontological make-up of the individual person, from the body-spirit nature of man."
50
Locke differs from earlier theorists, most of whom had been ambivalent about private property, in asserting that it is an integral part of human nature and a fundamental characteristic of human activity.
51
God's intention, Locke would hold, is that we work in and with nature to make it our own. It is our nature to work and to enjoy the fruits of our labors; indeed, our work makes us who we are.
52
In his views on property, Locke once again revises his heritage from Aristotle.
53
For Locke, the state is not what defines one's very humanity, as Aristotle believed, but rather a pragmatic arrangement for protecting the private pursuits of individuals and to help avoid conflict. Its chief end, he says in Section 124 of the
Second Treatise
, is the preservation of property. True, Aristotle supports private property, arguing in the
Politics
that it helps reduce quarrels, as each takes care of what is his own, and increases

 

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pleasure through the pleasure of giving things away: "We may add that a very great pleasure is to be found in doing a kindness and giving some help to friends, or guests, or comrades: and such kindness and help become possible only when property is privately owned" (1263b9). Earlier he asserts that moral goodness rather than legal compulsionas in Plato's schemewill ensure that individual property is made to serve the needs of all (1263b6).
Locke's break with the ancients has to do instead with the separation in classical Greek political theory between action and production. Production is now part of the good life. It is a liberating and morally significant activity.
Locke is thus an unabashed philosopher for mastery over the natural world. In this sense he insists on privatization over against Aristotle's politicization of human life. Human beings are shaped, he would argue, in the process of their encounter with nature; their labor is not something degrading or alien. Rapaczynski concludes that Locke thus closes the classical Greek schism between
praxis
or intellectual activity and
poesis
or productive labor: "The modernity of Locke's philosophy thus lies not in the elimination of the Aristotelian domain of action and its replacement with a purely positivist or utilitarian theory of human interests, but rather in an attempt to fuse the discourse of interests with the discourse of moral action and to synthesize
praxis
and
poesis
in a unified theory of human activity."

54

Locke's theory of property serves two purposes. First, the precarious insecurity of human beings is relieved not, as Hobbes thought, by a political compact but by taming or appropriating nature to serve human ends. Second, appropriation transforms human dependence on nature into a form of self-sufficiency, thus conferring moral status upon human actions.
Not to acknowledge the moral and religious basis of Locke's views on work and ownership is to engage in anachronistic thinking. A new element had been introduced into the world since the era of classical Greece and Rome, namely, the emergence of the Church with its emphasis on charity. It is not surprising that a theory

 

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about rights as claims should have evolved from an institution that allowed claims made by the needy or deserving.

55
Further, as Tully insists, enjoyment of the fruits of one's labors is not the sin of acquisitiveness but the ability to fulfill the Christian duty of liberality and charity.
56
Charity, says Locke, is the first thing we should teach our children:

''As to having and possessing of Things, teach them [children] to part with what they have easily and freely to their Friends.... Covetousness, and the Desire of having in our Possession, and under our Dominion, more than we have need of, being the Root of all Evil, should be early and carefully weeded out, and the contrary Quality of a Readiness to impart to others, implanted.... [The way to understand property as well as justice and honesty] is to lay the Foundations of it early in Liberality, and an Easiness to part with to others whatever they have or like themselves.
57
Locke's critics have accused him of many transgressions: underestimation of the social dimension of human life,
58
overconfidence in the individualistic assumption that the common good is not real
59
or that the public realm exists only to further the development of individual persons,
60
flirting with absolutism and constituting only a "freakish and fitful" aberration,
61
and serving as the point man for acquisitive capitalism.
62
Nevertheless, Locke's appropriation of natural law as a basis for individual rights, his combination of tolerance for partial knowledge with faith in divine will, his skepticism toward authority, and his political common sense all joined to ensure his leading role in the story of human rights.
Locke and God
Locke is sometimes painted with a broad brush as so thorough a rationalist of the secular Enlightenment that the religious basis of his thought is eclipsed. John Dunn emphasizes the degree to which Locke's thoughts depend on religious premises, noting that a high proportion of

 

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