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Locke and the Notion of Rights
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  1. Locke and the Notion of Rights

  2. Introduction • John Locke (1632-1704) • Source: Two Treatises on Government

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. What are Rights? • Claims or Permissions • Permission right • I have a permit to park here • I have no duty not to park here • I can’t legitimately be fined for parking here • If I have permission to do x, then I have no duty not to do x

  9. 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

  10. 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!

  11. 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

  12. 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 they’re 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

  13. 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.

  14. 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).

  15. 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

  16. 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

  17. 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

  18. 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

  19. 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.

  20. 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.

  21. 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.

  22. 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 can’t make proper use of it • you must leave enough and as good behind you