Freedom, Rights, and Political Philosophy, Part 2
Smith discusses the major criticism of natural rights and the consent theory of government – that these doctrines will land us in anarchy.
In Anarchy, State, and Utopia (1974), Robert Nozick wrote:
The fundamental question of political philosophy, one that precedes questions about how the state should be organized, is whether there should be any state at all. Why not have anarchy? Since anarchist theory, if tenable, undercuts the whole subject of political philosophy, it is appropriate to begin political philosophy with an examination of its major theoretical alternative.
According to Nozick, exploring the problems that would arise in an anarchistic state of nature “is of crucial importance to deciding whether there should be a state rather than anarchy.” Nozick’s use of a hypothetical state of nature might seem to place him in the Lockean tradition (generally conceived), but there is a significant difference. No political philosopher during the seventeenth century (and for most of the eighteenth) questioned “whether there should be any state at all.” Rather, the need for government was taken for granted and used as a premise by all sides in political debates, defenders of absolutism and individualism alike. If one’s political theory was unable to sustain this premise, if it failed to provide a credible justification for government, then it was the theory itself, not government, that was condemned and rejected.
In other words, if a philosopher began with a state of nature, he had the burden to explain why reasonable people would ever leave that anarchistic condition voluntarily and agree to submit to a government. This is what John Locke attempted to do in his Second Treatise of Government. According to Locke, “all Men are by Nature equal.” The state of nature (that “State all Men are naturally in”) is not only a “State of perfect freedom” but “a State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another.” The most fundamental among these equal rights is the “right of freedom” of every individual “to his own Person, which no other man has power over, but the free Disposal of it lies in himself.”
The import of Locke’s notion of equal rights may be described as political reductionism. This is the doctrine that all rights and powers claimed by government must ultimately be reducible to the equal rights and legitimate powers of individuals, as they would exist in a state of nature without government. Natural rights can be transferred, delegated, or alienated only through consent, according to Locke. Therefore, no person can lay claim to a natural right of sovereignty (legitimate political power), which supposedly entitles him to rule others without their consent. Nor, contrary to Samuel Pufendorf and some other natural law philosophers, are there special rights (most notably the right to punish) that emerge and can exist only under government. (Hence the significance of Locke’s argument that even the right to punish would be possessed by individuals in a state of
nature.)
Beginning with the premise that there exists no natural dominion in a state of nature, Locke attempted to explain the origin of political obligation. How can we move from the equal and reciprocal rights of man in his natural condition to the political dominion and subordination of governments, where rulers claim rights (such as the right to punish) that are denied to individuals?
Locke was responding to Sir Robert Filmer, a dead adversary who had written his tracts decades earlier (though most were not published until 1680). Filmer’s defense of “patriarchalism” -- a popular method of defending the divine right of kings based on the natural authority of fathers over their children -- was not very persuasive, even to many seventeenth-century readers who were sympathetic to biblical arguments, so Locke (in his First Treatise) was able to dispose of Filmer’s muddled arguments for patriarchalism with relative ease.
But there was a more impressive aspect to Filmer, namely, his criticism of the doctrine that a legitimate government must be based on the consent of the governed, a theory that was grounded in a premise that Filmer characterized as “the natural liberty and equality of mankind.” Although this nascent libertarian doctrine had roots in ancient Greek and Roman philosophy (especially Stoicism) and had survived in the writings of various Catholic philosophers, its explosive potential was not fully realized until after the Reformation, when both Catholics and Protestants searched for a rationale to strip heretical or tyrannical princes of their legitimacy and thereby justify the rights of resistance and revolution.
This is the primary critical task that Filmer undertook in Patriarcha and other tracts. He articulated arguments against a consent theory of government (especially against social contract theory, which is the traditional form in which consent theory has manifested itself) that would later be repeated by a host of more famous philosophers, such as David Hume, Edmund Burke, and Jeremy Bentham.
According to Filmer, the ‘supposed natural equality and freedom of mankind” is a “desperate assertion, whereby kings are made subject to the censures and deprivations of their subjects.” If this “first erroneous principle” is refuted and exposed for the sham it is, “the whole fabric of this vast engine of popular sedition would drop down of itself.”
Filmer’s reference to “popular sedition” is highly significant. Prior to Filmer, some philosophers, both Catholic and Protestant, had used some version of social contract theory to justify the rights of resistance and revolution. This is what so alarmed the absolutist critics of political individualism who resolutely denied those rights. The most absolutists would concede was the right of passive disobedience. That is to say, if a law violates a divine commandment, then subjects should disobey that law, but they should also submit to whatever punishment is prescribed by law. Under no circumstances are subjects permitted to use force against their sovereign, even when confronted with an unjust law.
The revolutionary implications of natural-rights theory troubled not only absolutists but also later philosophers with liberal tendencies. Many of these liberals did little more than repeat the arguments that had been stated many decades earlier by Robert Filmer.
The upshot of these arguments was that the individualistic theory of natural rights, especially as manifested in various theories of social contract, can justify the rights of resistance and revolution only at the expense of government itself. No government can meet, or ever has met, the rigid criteria demanded by radical individualism, so we are left with no justification for government at all. Such theories will strand us in the anarchistic state of nature with no means of escape, so all such theories are absurd on their face.
We find this line of criticism in the writings of the liberal English clergyman Josiah Tucker, who, in his criticism of the American Revolution, trenchantly observed that “the Lockian System is an universal Demolisher of all Civil Governments, but not the Builder of any.” Writing shortly after the American victory at Yorktown, Tucker argued that if Locke’s principles “were to be executed according to the Letter, and in the Manner the Americans pretend to understand them, they would necessarily unhinge, and destroy every Government upon Earth.”
Tucker complained that the wise maxim in politics -- “Not to be very inquisitive concerning the original Title of the reigning Powers” -- had been destroyed by John Locke and other defenders of natural rights and the social contract. According to the Lockean system, consent is the basis of legitimate government, but this is a test that no real government can pass.
Americans had accused the British of violating their rights by imposing taxes and other measures without the consent of colonial assemblies. The Americans had appealed to Lockean principles in their effort to rid themselves of an old government, but would they remain true to those same principles in establishing new governments? Would those inalienable rights of mankind, which had supposedly been ravished by the British, remain sacred and pristine when the Americans were in control?
No, argued Tucker; this was an impossible task. The Lockean system can justify the demolition of an established government, but it cannot provide a secure foundation for establishing a new government. Did the victorious Americans give their citizens the choice of living in a state of nature without any government at all? No --Americans were given only one choice: “Who should govern, Americans or Englishmen?” Neither the states nor the Continental Congress truly ruled by the consent of the people. Tucker wrote:
Was any one of these Civil Governments at first formed, or is it now administered, and conducted according to the Lockian plan? And did, or doth any of their Congresses, general or provincial, admit of that fundamental Maxim of Mr. Locke, that every Man has an unalienable Right to obey no other Laws, but those of his own making? No; no -- so far from it, that there are dreadful Fines and Confiscations, Imprisonments, and even Death made use of, as the only effectual Means for obtaining that Unanimity of Sentiment so much boasted of by these new-fangled Republicans, and so little practiced.
Some Americans, such as James Madison, were painfully aware of the appearance of hypocrisy. After achieving independence, how could American governments claim political jurisdiction over people who refused to acknowledge their legitimacy? After noting the “pestilent operation of this doctrine [of consent] in the unlimited sense,” Madison appealed to another feature of the Lockean paradigm, namely, tacit consent:
I can find no relief from such embarrassments but in the received doctrine that a tacit assent may be given to established Governments and law, and that this assent is to be inferred from the omission of an express revocation…Is it not doubtful whether it be possible to exclude wholly the idea of an implied or tacit consent, without subverting the very foundation of civil society.
Filmer’s argument that natural rights and social contract will land us in anarchy, and should be rejected for that reason alone, is found in Edmund Burke’s Reflections on the Revolution in France (1790). It is also found in a much earlier piece, A Vindication of Natural Society (1756), in which a young Burke, writing anonymously, presents himself as a radical Lockean who argues against the violence, wars, and other brutalities of governments. Governments originate in violence and conquest, not in consent; so, according to the “sure and uncontested Principles” of that great philosopher, Mr. Locke, “the greatest Part of the Governments on Earth must be concluded Tyrannies, Impostures, Violations of the Natural Rights of Mankind, and worse than the most disorderly Anarchies.”
Burke, of course, intended this as satire; by embracing the anarchistic implications of consent theory, he was attempting to illustrate its absurdity. But Burke’s Vindication was so well done that some readers (most notably William Godwin) took it seriously, thus making it, unintentionally, the first modern defense of anarchism. In 1765, as Burke thought of entering Parliament, he wanted to remove all doubt about his satire, so he prefaced the second edition with a disclaimer: his defense of “natural society” (i.e., anarchy) was nothing more than a lesson in “the abuse of reason” as practiced by consent theorists -- those who live in the “fairyland of philosophy.”
Jeremy Bentham, who explicitly acknowledged his debt to Filmer, raised the specter of anarchy repeatedly in his criticisms of natural rights. Natural rights are “terrorist language,” according to Bentham. By justifying the rights of resistance and revolution, the doctrine of natural rights made it impossible to justify any kind of government, so the doctrine should be rejected on that basis. Natural rights are nothing more than “anarchical fallacies.”
Bentham illustrated his point in a colorful passage. Suppose we agree that individuals have the right to resist laws that they regard as unjust. Here is how Bentham portrayed the anarchical consequences of this doctrine:
Whenever you are about to be oppressed, you have a right to resist oppression: whenever you conceive yourself to be oppressed, conceive yourself to have a right to make resistance, and act accordingly. In proportion as a law of any kind—any act of power, supreme or subordinate, legislative, administrative, or judicial, is unpleasant to a man, especially if, in consideration of such its unpleasantness, his opinion is, that such act of power ought not to have been exercised, he of course looks upon it as oppression: as often as anything of this sort happens to a man—as often as anything happens to a man to inflame his passions,—this article, for fear his passions should not be sufficiently inflamed of themselves, sets itself to work to blow the flame, and urges him to resistance. Submit not to any decree or other act of power, of the justice of which you are not yourself perfectly convinced. If a constable calls upon you to serve in the militia, shoot the constable and not the enemy;—if the commander of a press-gang trouble you, push him into the sea—if a bailiff, throw him out of the window. If a judge sentence you to be imprisoned or put to death, have a dagger ready, and take a stroke first at the judge.
The foregoing sketch sets the historical context for understanding early debates over natural rights and a consent theory of government. Unlike Nozick and other modern libertarians, no major participants in these debates viewed anarchy as a legitimate option. On the contrary, if your political theory logically entailed anarchism, then you lost the debate and your theory was rejected out of hand. So what was the major point of these debates, if not the justification of government per se? As I shall explain in my next essay, the primary bone of contention was not the justification of government and political obligation in a general sense, but the justification of political allegiance to a particular government.