哈佛大学公开课《公正：该如何做是好》：第四课：英文字幕

哈佛大学公开课《公正：该如何做是好》：第四课：英文字幕 1 00:00:03,469 --> 00:00:06,170 Funding for this program is provided by... 2 00:00:07,550 --> 00:00:09,910 Additional funding provided by... 3 00:00:32,000 --> 00:00:35,550 Today, we turn to John Locke. 4 00:00:39,760 --> 00:00:46,770 On the face of it, Locke is a powerful ally of the libertarian. 5 00:00:47,570 --> 00:00:53,630 First, he believes, as libertarians today maintain, 6 00:00:55,169 --> 00:01:01,520 that there are certain fundamental individual rights that are so important 7 00:01:01,830 --> 00:01:05,750 that no government, even a representative government, 8 00:01:05,860 --> 00:01:10,170 even a democratically elected government, can override them. 9 00:01:12,490 --> 00:01:18,560 Not only that, he believes that those fundamental rights include 1 10 00:01:19,520 --> 00:01:26,420 a natural right to life, liberty, and property, 11 00:01:29,229 --> 00:01:35,030 and furthermore he argues that the right to property 12 00:01:37,280 --> 00:01:42,330 is not just the creation of government or of law. 13 00:01:42,899 --> 00:01:47,110 The right to property is a natural right in the sense 14 00:01:47,240 --> 00:01:50,420 that it is prepolitical. 15 00:01:51,960 --> 00:01:59,340 It is a right that attaches to individuals as human beings, 16 00:01:59,559 --> 00:02:02,440 even before government comes on the scene, 17 00:02:02,600 --> 00:02:05,000 even before parliaments and legislatures 18 00:02:05,280 --> 00:02:10,460 enact laws to define rights and to enforce them. 2 19 00:02:10,769 --> 00:02:15,530 Locke says in order to think about what it means to have a natural right, 20 00:02:16,100 --> 00:02:19,530 we have to imagine the way things are 21 00:02:21,500 --> 00:02:28,000 before government, before law, and that's what Locke means 22 00:02:28,239 --> 00:02:30,240 by the state of nature. 23 00:02:31,459 --> 00:02:34,860 He says the state of nature is a state of liberty. 24 00:02:39,109 --> 00:02:42,510 Human beings are free and equal beings. 25 00:02:42,709 --> 00:02:45,810 There is no natural hierarchy. 26 00:02:46,769 --> 00:02:49,750 It's not the case that some people are born to be kings 27 00:02:49,850 --> 00:02:52,860 and others are born to be serfs. 28 3 00:02:53,840 --> 00:02:58,540 We are free and equal in the state of nature and yet, 29 00:02:59,299 --> 00:03:02,700 he makes the point that there is a difference between 30 00:03:02,910 --> 00:03:05,940 a state of liberty and a state of license. 31 00:03:08,810 --> 00:03:11,260 And the reason is that even in the state of nature, 32 00:03:11,480 --> 00:03:12,610 there is a kind of law. 33 00:03:12,890 --> 00:03:15,180 It's not the kind of law that legislatures enact. 34 00:03:15,739 --> 00:03:23,160 It's a law of nature. And this law of nature constrains 35 00:03:23,280 --> 00:03:25,920 what we can do even though we are free, 36 00:03:26,030 --> 00:03:28,120 even though we are in the state of nature. 37 4 00:03:29,000 --> 00:03:31,800 Well what are the constraints? 38 00:03:33,480 --> 00:03:37,970 The only constraint given by the law of nature 39 00:03:38,720 --> 00:03:45,210 is that the rights we have, the natural rights we have 40 00:03:45,780 --> 00:03:50,280 we can't give up nor can we take them 41 00:03:50,519 --> 00:03:52,650 from somebody else. 42 00:03:53,950 --> 00:03:56,490 Under the law of nature, I'm not free to take somebody else's 43 00:03:56,829 --> 00:04:06,260 life or liberty or property, nor am I free to take 44 00:04:06,619 --> 00:04:11,480 my own life or liberty or property. 45 00:04:12,420 --> 00:04:17,150 Even though I am free, I'm not free to violate the law of nature. 46 00:04:17,310 --> 00:04:22,410 I'm not free to take my own life 5 or to sell my self into slavery 47 00:04:22,870 --> 00:04:28,620 or to give to somebody else arbitrary absolute power over me. 48 00:04:28,830 --> 00:04:32,200 So where does this constraint, you may think it's a fairly 49 00:04:32,300 --> 00:04:35,020 minimal constraint, but where does it come from? 50 00:04:36,360 --> 00:04:40,250 Well, Locke tells us where it comes from 51 00:04:40,599 --> 00:04:45,300 and he gives two answers. Here is the first answer. 52 00:04:45,960 --> 00:04:53,040 "For men, being all the workmanship of one omnipotent, 53 00:04:53,090 --> 00:04:55,970 and infinitely wise maker," namely God, 54 00:04:57,349 --> 00:05:00,360 "they are His property, whose workmanship they are, 55 00:05:00,640 --> 00:05:05,900 6 made to last during His, not one another's pleasure." 56 00:05:06,020 --> 00:05:09,100 So one answer to the question is why can't I give up 57 00:05:09,200 --> 00:05:13,500 my natural rights to life, liberty, and property is well, 58 00:05:13,700 --> 00:05:16,840 they're not, strictly speaking, yours. 59 00:05:19,140 --> 00:05:28,140 After all, you are the creature of God. God has a bigger property right in us, 60 00:05:28,300 --> 00:05:30,800 a prior property right. 61 00:05:31,680 --> 00:05:34,420 Now, you might say that's an unsatisfying, 62 00:05:34,520 --> 00:05:36,020 unconvincing answer, at least for those 63 00:05:36,380 --> 00:05:38,260 who don't believe in God. 64 00:05:38,550 --> 00:05:43,150 What did Locke have to say to them? 7 Well, here is where Locke appeals 65 00:05:43,479 --> 00:05:48,580 to the idea of reason and this is the idea, 66 00:05:50,120 --> 00:05:54,510 that if we properly reflect on what it means to be free, 67 00:05:55,240 --> 00:05:59,690 we will be led to the conclusion that freedom can't just be a matter 68 00:05:59,969 --> 00:06:02,140 of doing whatever we want. 69 00:06:02,969 --> 00:06:07,390 I think this is what Locke means when he says, "The state of nature 70 00:06:07,460 --> 00:06:11,170 has a law of nature to govern it which obliges everyone: and reason, 71 00:06:11,280 --> 00:06:16,560 which is that law, teaches mankind who will but consult it 72 00:06:16,760 --> 00:06:21,210 that all being equal and independent, no one ought to harm another 73 00:06:21,310 --> 00:06:24,030 in his life, health, 8 liberty, or possessions." 74 00:06:25,120 --> 00:06:31,840 This leads to a puzzling paradoxical feature of Locke's 75 00:06:32,000 --> 00:06:38,420 account of rights. Familiar in one sense but strange in another. 76 00:06:39,960 --> 00:06:44,560 It's the idea that our natural rights are unalienable. 77 00:06:44,770 --> 00:06:47,540 What does "unalienable" mean? It's not for us to alienate them 78 00:06:47,640 --> 00:06:51,260 or to give them up, to give them away, to trade them away, to sell them. 79 00:06:52,520 --> 00:06:56,610 Consider an airline ticket. Airline tickets are nontransferable. 80 00:06:56,760 --> 00:07:00,130 Or tickets to the Patriots or to the Red Sox. 81 00:07:00,840 --> 00:07:05,330 Nontransferable tickets are unalienable. 9 82 00:07:06,680 --> 00:07:11,020 I own them in the limited sense that I can use them for myself, 83 00:07:11,120 --> 00:07:15,850 but I can't trade them away. So in one sense, an unalienable right, 84 00:07:16,080 --> 00:07:23,850 a nontransferable right makes something I own less fully mine. 85 00:07:25,729 --> 00:07:30,420 But in another sense of unalienable rights, 86 00:07:31,440 --> 00:07:34,820 especially where we're thinking about life, liberty, and property, 87 00:07:37,270 --> 00:07:40,620 or a right to be unalienable makes it more deeply, 88 00:07:40,960 --> 00:07:44,570 more profoundly mine, and that's Locke's sense 89 00:07:45,630 --> 00:07:47,440 of unalienable. 90 00:07:47,960 --> 00:07:50,370 We see it in the American Declaration of Independence. 10 91 00:07:50,650 --> 00:07:53,710 Thomas Jefferson drew on this idea of Locke. 92 00:07:54,640 --> 00:07:59,790 Unalienable rights to life, liberty, and as Jefferson amended Locke, 93 00:08:00,310 --> 00:08:03,550 to the pursuit of happiness. Unalienable rights. 94 00:08:05,250 --> 00:08:13,350 Rights that are so essentially mine that even I can't trade them away 95 00:08:13,400 --> 00:08:15,200 or give them up. 96 00:08:17,840 --> 00:08:20,660 So these are the rights we have in the state of nature 97 00:08:21,080 --> 00:08:23,480 before there is any government. 98 00:08:24,479 --> 00:08:27,330 In the case of life and liberty, I can't take my own life. 99 00:08:27,429 --> 00:08:30,230 I can't sell myself into slavery any more than I can take 100 11 00:08:30,330 --> 00:08:32,140 somebody else's life or take someone else 101 00:08:32,240 --> 00:08:35,340 as a slave by force. 102 00:08:36,600 --> 00:08:39,420 But how does that work in the case of property? 103 00:08:39,520 --> 00:08:46,940 Because it's essential to Locke's case that private property can arise 104 00:08:47,459 --> 00:08:50,130 even before there is any government. 105 00:08:51,040 --> 00:08:54,310 How can there be a right to private property 106 00:08:54,650 --> 00:08:58,360 even before there is any government? 107 00:08:59,720 --> 00:09:04,110 Locke's famous answer comes in Section 27. 108 00:09:04,630 --> 00:09:08,260 "Every man has a property in his own person. 109 00:09:08,680 --> 00:09:11,740 12 This nobody has any right to but himself." 110 00:09:12,150 --> 00:09:15,500 "The labor of his body and the work of his hands, 111 00:09:16,020 --> 00:09:18,900 we may say, are properly his." 112 00:09:19,480 --> 00:09:24,940 So he moves, as the libertarians later would move, 113 00:09:25,400 --> 00:09:32,180 from the idea that we own ourselves, that we have property in our persons 114 00:09:32,579 --> 00:09:35,740 to the closely connected idea that we own our own labor. 115 00:09:36,360 --> 00:09:43,220 And from that to the further claim that whatever we mix our labor with 116 00:09:43,600 --> 00:09:48,130 that is un-owned becomes our property. 117 00:09:49,350 --> 00:09:52,040 "Whatever he removes out of the state that nature has provided, 118 00:09:52,160 --> 00:09:55,230 13 and left it in, he has mixed his labor with, 119 00:09:55,430 --> 00:09:58,860 and joined it to something that is his own, and thereby 120 00:09:59,199 --> 00:10:01,660 makes it his property." 121 00:10:02,170 --> 00:10:07,920 Why? Because the labor is the unquestionable property 122 00:10:08,180 --> 00:10:13,460 of the laborer and therefore, no one but the laborer 123 00:10:13,699 --> 00:10:19,600 can have a right to what is joined to or mixed with his labor. 124 00:10:19,800 --> 00:10:22,700 And then he adds this important provision, 125 00:10:22,760 --> 00:10:27,760 "at least where there is enough, and as good left in common for others." 126 00:10:28,560 --> 00:10:35,420 But we not only acquire our property in the fruits of the earth, 127 00:10:35,790 --> 00:10:39,770 14 in the deer that we hunt, in the fish that we catch 128 00:10:41,000 --> 00:10:47,290 but also if we till and plow and enclose the land and grow potatoes, 129 00:10:48,520 --> 00:10:53,250 we own not only the potatoes but the land, the earth. 130 00:10:53,920 --> 00:10:57,580 "As much land as a man tills, plants, improves, cultivates 131 00:10:57,800 --> 00:11:03,580 and can use the product of, so much is his property. 132 00:11:03,800 --> 00:11:07,820 He by his labor encloses it from the commons. 133 00:11:09,640 --> 00:11:14,980 So the idea that rights are unalienable seems to distance 134 00:11:15,319 --> 00:11:17,220 Locke from the libertarian. 135 00:11:17,600 --> 00:11:21,340 Libertarian wants to say we have an absolute property right 136 00:11:21,680 --> 00:11:24,900 15 in ourselves and therefore, we can do with ourselves 137 00:11:25,160 --> 00:11:26,380 whatever we want. 138 00:11:26,560 --> 00:11:30,780 Locke is not a sturdy ally for that view. 139 00:11:31,160 --> 00:11:34,460 In fact, he says if you take natural rights seriously, 140 00:11:34,520 --> 00:11:37,740 you'll be led to the idea that there are certain constraints 141 00:11:37,959 --> 00:11:39,900 on what we can do with our natural rights, 142 00:11:40,000 --> 00:11:44,420 constraints given either by God or by reason reflecting 143 00:11:44,860 --> 00:11:49,120 on what it means really to be free, and really to be free 144 00:11:50,660 --> 00:11:54,090 means recognizing that our rights are unalienable. 145 00:11:54,370 --> 00:11:56,460 16 So here is the difference between Locke and the libertarians. 146 00:11:56,750 --> 00:12:01,720 But when it comes to Locke's account of private property, 147 00:12:02,180 --> 00:12:06,020 he begins to look again like a pretty good ally 148 00:12:06,360 --> 00:12:08,820 because his argument for private property begins 149 00:12:08,959 --> 00:12:13,030 with the idea that we are the proprietors of our own person 150 00:12:13,240 --> 00:12:14,860 and therefore, of our labor, and therefore, 151 00:12:14,959 --> 00:12:17,620 of the fruits of our labor, including not only 152 00:12:17,719 --> 00:12:26,180 the things we gather and hunt in the state of nature 153 00:12:27,680 --> 00:12:30,870 but also we acquire our property right in the land that we enclose 154 17 00:12:31,199 --> 00:12:33,560 and cultivate and improve. 155 00:12:34,650 --> 00:12:39,700 There are some examples that can bring out the moral intuition 156 00:12:40,709 --> 00:12:47,450 that our labor can take something that is unowned and make it ours, 157 00:12:48,520 --> 00:12:50,880 though sometimes, there are disputes about this. 158 00:12:54,480 --> 00:13:00,000 There is a debate among rich countries and developing countries 159 00:13:00,329 --> 00:13:04,070 about trade-related intellectual property rights. 160 00:13:04,589 --> 00:13:08,360 It came to a head recently over drug patent laws. 161 00:13:09,180 --> 00:13:11,590 Western countries, and especially the United States say, 162 00:13:11,849 --> 00:13:14,020 "We have a big pharmaceutical industry 163 18 00:13:14,300 --> 00:13:16,060 that develops new drugs. 164 00:13:17,180 --> 00:13:21,660 We want all countries in the world to agree 165 00:13:21,760 --> 00:13:23,900 to respect the patents." 166 00:13:25,250 --> 00:13:28,600 Then, there came along the AIDS crisis in South Africa, 167 00:13:29,640 --> 00:13:35,890 and the American AIDS drugs were hugely expensive, 168 00:13:36,880 --> 00:13:40,430 far more than could be afforded by most Africans. 169 00:13:40,870 --> 00:13:42,300 So the South African government said, 170 00:13:42,640 --> 00:13:47,580 "We are going to begin to buy a generic version of the AIDS 171 00:13:48,579 --> 00:13:53,550 antiretroviral drug at a tiny fraction of the cost 172 00:13:53,719 --> 00:13:57,670 19 because we can find an Indian manufacturing company 173 00:13:58,000 --> 00:14:03,520 that figures out how the thing is made and produces it, 174 00:14:03,939 --> 00:14:06,170 and for a tiny fraction of the cost, we can save lives 175 00:14:06,449 --> 00:14:08,730 if we don't respect that patent." 176 00:14:09,480 --> 00:14:11,420 And then the American government said, 177 00:14:11,640 --> 00:14:15,960 "No, here is a company that invested research 178 00:14:17,000 --> 00:14:19,180 and created this drug. 179 00:14:19,510 --> 00:14:24,500 You can't just start mass producing these drugs without paying 180 00:14:24,760 --> 00:14:26,040 a licensing fee." 181 00:14:26,160 --> 00:14:32,440 And so there was a dispute and the pharmaceutical company 20 182 00:14:32,599 --> 00:14:36,780 sued the South African government to try to prevent their buying 183 00:14:37,060 --> 00:14:43,410 the cheap generic, as they saw it, pirated version of an AIDS drug. 184 00:14:44,240 --> 00:14:49,240 And eventually, the pharmaceutical industry gave in and said, 185 00:14:49,699 --> 00:14:51,000 "All right, you can do that." 186 00:14:51,170 --> 00:14:56,060 But this dispute about what the rules of property should be, 187 00:14:56,280 --> 00:15:01,620 of intellectual property of drug patenting, in a way, 188 00:15:01,839 --> 00:15:06,350 is the last frontier of the state of nature because among nations 189 00:15:06,449 --> 00:15:11,100 where there is no uniform law of patent rights and property rights, 190 00:15:11,459 --> 00:15:15,360 it's up for grabs until, by some act of consent, 21 191 00:15:15,640 --> 00:15:23,420 some international agreement, people enter into some settled rules. 192 00:15:26,510 --> 00:15:30,100 What about Locke's account of private property 193 00:15:30,199 --> 00:15:34,690 and how it can arise before government and before law 194 00:15:34,920 --> 00:15:38,400 comes on the scene? Is it successful? 195 00:15:39,890 --> 00:15:43,100 How many think it's pretty persuasive? 196 00:15:43,410 --> 00:15:44,620 Raise your hand. 197 00:15:46,939 --> 00:15:49,580 How many don't find it persuasive? 198 00:15:51,170 --> 00:15:53,630 All right, let's hear from some critics. 199 00:15:53,969 --> 00:15:58,470 What is wrong with Locke's account of how private property can arise 200 22 00:15:58,640 --> 00:16:02,060 without consent? Yes? 201 00:16:02,920 --> 00:16:07,060 Yes, I think it justifies European cultural norms as far as 202 00:16:07,439 --> 00:16:11,790 when you look at how Native Americans may not have cultivated American land, 203 00:16:11,890 --> 00:16:17,410 but by their arrival in the Americas, that contributed 204 00:16:17,520 --> 00:16:19,460 to the development of America, which wouldn't have otherwise 205 00:16:19,780 --> 00:16:23,420 necessarily happened then or by that specific group. 206 00:16:24,079 --> 00:16:28,840 So you think that this is a defense, this defense of private property in land... 207 00:16:29,069 --> 00:16:31,300 Yes, because it complicates original acquisition 208 00:16:31,760 --> 00:16:35,900 if you only cite the arrival of foreigners that cultivated the land. 209 23 00:16:36,229 --> 00:16:38,300 I see. And what's your name? - Rochelle. 210 00:16:38,579 --> 00:16:39,790 Rochelle? - Yes. 211 00:16:40,069 --> 00:16:44,850 Rochelle says this account of how property arises 212 00:16:45,120 --> 00:16:51,140 would fit what was going on in North America during the time 213 00:16:51,410 --> 00:16:55,380 of the European settlement. 214 00:16:56,599 --> 00:17:01,780 Do you think, Rochelle, that it's a way of defending 215 00:17:02,079 --> 00:17:04,500 the appropriation of the land? 216 00:17:04,720 --> 00:17:08,940 Indeed, because I mean, he is also justifying 217 00:17:09,320 --> 00:17:10,380 the glorious revolutions. 218 00:17:10,600 --> 00:17:13,580 I don't think it's inconceivable 24 that he is also justifying 219 00:17:13,919 --> 00:17:15,460 colonization as well. 220 00:17:16,080 --> 00:17:20,340 Well, that's an interesting historical suggestion 221 00:17:20,600 --> 00:17:22,860 and I think there is a lot to be said for it. 222 00:17:24,040 --> 00:17:26,970 What do you think of the validity of his argument though? 223 00:17:27,680 --> 00:17:30,540 Because if you are right that this would justify the taking 224 00:17:30,800 --> 00:17:35,060 of land in North America from Native Americans 225 00:17:35,290 --> 00:17:39,970 who didn't enclose it, if it's a good argument, 226 00:17:40,240 --> 00:17:42,060 then Locke's given us a justification for that. 227 00:17:42,350 --> 00:17:46,770 If it's a bad argument, 25 then Locke's given us a mere 228 00:17:46,879 --> 00:17:50,420 rationalization that isn't morally defensible. 229 00:17:52,220 --> 00:17:54,990 I'm leaning to the second one... - You're leaning toward the second one. 230 00:17:55,149 --> 00:17:57,610 But that's my opinion as well. 231 00:17:57,840 --> 00:18:02,420 All right, well, then, let's hear if there is a defender 232 00:18:02,639 --> 00:18:05,520 of Locke's account of private property, 233 00:18:05,919 --> 00:18:10,490 and it would be interesting if they could address Rochelle's worry 234 00:18:10,639 --> 00:18:13,930 that this is just a way of defending the appropriation 235 00:18:14,270 --> 00:18:17,960 of land by the American colonists from the Native Americans 236 00:18:18,060 --> 00:18:20,020 who didn't enclose it. 26 237 00:18:20,300 --> 00:18:24,400 Is there someone who will defend Locke on that point? 238 00:18:27,720 --> 00:18:29,710 Are you going to defend Locke? 239 00:18:29,810 --> 00:18:32,350 Like, you're accusing him of justifying the European 240 00:18:32,450 --> 00:18:34,410 basically massacre of the Native Americans. 241 00:18:34,520 --> 00:18:36,060 But who says he is defending it? 242 00:18:36,159 --> 00:18:39,460 Maybe the European colonization isn't right. 243 00:18:40,159 --> 00:18:42,720 You know, maybe it's the state of war that he talked about 244 00:18:43,000 --> 00:18:44,860 in his Second Treatise, you know. 245 00:18:45,800 --> 00:18:51,180 So the wars between the Native Americans and the colonists, 246 27 00:18:51,550 --> 00:18:57,010 the settlers, that might have been a state of war that we can only 247 00:18:57,340 --> 00:19:01,000 emerge from by an agreement or an act of consent 248 00:19:01,389 --> 00:19:05,300 and that's what would have been required fairly to resolve... 249 00:19:05,399 --> 00:19:07,200 Yes, and both sides would have had to agree to it and carry it out 250 00:19:07,300 --> 00:19:08,700 and everything. 251 00:19:08,860 --> 00:19:11,090 But what about when, what's your name? - Dan. 252 00:19:11,419 --> 00:19:17,140 But Dan, what about Rochelle says this argument in Section 27 253 00:19:17,360 --> 00:19:22,260 and then in 32 about appropriating land, 254 00:19:23,600 --> 00:19:28,820 that argument, if it's valid, would justify the settlers' appropriating 255 28 00:19:28,919 --> 00:19:32,460 that land and excluding others from it, 256 00:19:32,740 --> 00:19:34,580 you think that argument is a good argument? 257 00:19:34,960 --> 00:19:37,620 Well, doesn't it kind of imply that the Native Americans 258 00:19:37,720 --> 00:19:39,620 hadn't already done that? 259 00:19:42,720 --> 00:19:44,580 Well, the Native Americans, as hunter-gatherers, 260 00:19:44,970 --> 00:19:48,220 didn't actually enclose land. 261 00:19:48,570 --> 00:19:51,780 So I think Rochelle is onto something there. 262 00:19:52,360 --> 00:19:54,660 What I want to -- go ahead, Dan. 263 00:19:55,020 --> 00:19:57,020 At the same time, he is saying that just by picking 264 00:19:57,240 --> 00:20:00,540 an acorn or taking an apple 29 or maybe killing a buffalo 265 00:20:00,639 --> 00:20:02,940 on a certain amount of land, that makes it yours 266 00:20:03,360 --> 00:20:06,460 because it's your labor and your labor would enclose that land. 267 00:20:07,070 --> 00:20:09,700 So by that definition, maybe they didn't have fences 268 00:20:10,639 --> 00:20:12,530 around little plots of land but didn't... 269 00:20:12,720 --> 00:20:13,840 They were using it. 270 00:20:14,070 --> 00:20:15,820 Yes. By Locke's definition, you can say... 271 00:20:16,080 --> 00:20:18,020 So maybe by Locke's definition, the Native Americans 272 00:20:18,120 --> 00:20:20,940 could have claimed a property right in the land itself. 273 00:20:21,159 --> 00:20:24,660 Right, but they just didn't have 30 Locke on their side, as she points out. 274 00:20:25,040 --> 00:20:30,270 All right, good. Okay, that's good. One more defender of Locke. Go ahead. 275 00:20:31,389 --> 00:20:32,540 Well, I mean, just to defend Locke, 276 00:20:32,720 --> 00:20:35,580 he does say that there are some times in which 277 00:20:35,800 --> 00:20:37,260 you can't take another person's land. 278 00:20:37,480 --> 00:20:41,840 For example, you can't acquire a land that is common property so people, 279 00:20:41,990 --> 00:20:44,760 in terms of the American Indians, I feel like they already have 280 00:20:44,860 --> 00:20:47,540 civilizations themselves and they were using land in common. 281 00:20:47,840 --> 00:20:50,250 So it's kind of like what an analogy to what he was talking about 282 00:20:50,350 --> 00:20:54,610 31 with like the common English property. You can't take land that 283 00:20:54,710 --> 00:20:55,860 everybody is sharing in common. 284 00:20:55,970 --> 00:20:57,200 Oh, that's interesting. That's interesting. 285 00:20:57,300 --> 00:21:00,360 And also, you can't take land unless you make sure 286 00:21:00,460 --> 00:21:04,280 that there is as much land as possible left for other people to take as well. 287 00:21:04,520 --> 00:21:07,050 So if you're taking common, so you have to make sure 288 00:21:07,300 --> 00:21:10,220 that whenever you take land that there is enough left 289 00:21:10,600 --> 00:21:11,820 for other people to use... - Right. 290 00:21:12,040 --> 00:21:14,070 ...that's just as good as the land that you took, so... 291 00:21:14,300 --> 00:21:17,900 That's true. 32 Locke says there has to be this right 292 00:21:18,100 --> 00:21:21,600 to private property in the earth is subject to the provision 293 00:21:21,649 --> 00:21:26,040 that there be as much and as good left for others. What's your name? 294 00:21:26,159 --> 00:21:27,480 Right. I'm Feng. 295 00:21:27,600 --> 00:21:30,100 So Feng, in a way, agrees with Dan that maybe there is 296 00:21:30,200 --> 00:21:34,180 a claim within Locke's framework that could be developed on behalf 297 00:21:34,399 --> 00:21:40,540 of the Native Americans. Here is the further question. 298 00:21:42,730 --> 00:21:47,460 If the right to private property is natural, not conventional, 299 00:21:48,399 --> 00:21:53,980 if it's something that we acquire even before we agree to government, 300 00:21:54,689 --> 00:21:59,900 how does that right constrain 33 what a legitimate government can do? 301 00:22:04,840 --> 00:22:10,220 In order, finally, to see whether Locke is an ally 302 00:22:10,520 --> 00:22:17,620 or potentially a critic of the libertarian idea of the state, 303 00:22:18,200 --> 00:22:20,560 we have to ask what becomes of our natural rights 304 00:22:20,840 --> 00:22:23,530 once we enter into society. 305 00:22:23,790 --> 00:22:28,390 We know that the way we enter into society is by consent, by agreement 306 00:22:29,159 --> 00:22:32,800 to leave the state of nature and to be governed by the majority 307 00:22:33,159 --> 00:22:36,060 and by a system of laws, human laws. 308 00:22:36,590 --> 00:22:42,740 But those human laws are only legitimate 309 00:22:43,560 --> 00:22:50,600 if they respect our natural rights, 34 if they respect our unalienable rights 310 00:22:50,980 --> 00:22:59,380 to life, liberty, and property. No parliament, no legislature, 311 00:22:59,659 --> 00:23:06,670 however democratic its credentials, can legitimately violate 312 00:23:07,040 --> 00:23:09,140 our natural rights. 313 00:23:10,080 --> 00:23:17,380 This idea that no law can violate our right to life, liberty, and property 314 00:23:17,600 --> 00:23:23,780 would seem to support the idea of a government so limited 315 00:23:25,490 --> 00:23:29,620 that it would gladden the heart of the libertarian after all. 316 00:23:29,919 --> 00:23:35,620 But those hearts should not be so quickly gladdened because 317 00:23:35,840 --> 00:23:41,380 even though for Locke, the law of nature persists 318 00:23:42,280 --> 00:23:46,660 once government arrives, 35 even though Locke insists 319 00:23:46,919 --> 00:23:50,700 on limited government, government limited by the end 320 00:23:50,800 --> 00:23:54,170 for which it was created, namely the preservation of property, 321 00:23:54,510 --> 00:24:00,820 even so, there is an important sense in which what counts as my property, 322 00:24:01,800 --> 00:24:07,600 what counts as respecting my life and liberty 323 00:24:08,320 --> 00:24:13,220 are for the government to define. 324 00:24:15,310 --> 00:24:19,510 That there be property, that there be respect 325 00:24:20,200 --> 00:24:26,490 for life and liberty is what limits government. 326 00:24:27,080 --> 00:24:37,410 But what counts as respecting my life and respecting my property, 327 00:24:38,040 --> 00:24:43,210 that is for governments 36 to decide and to define. 328 00:24:44,250 --> 00:24:45,700 How can that be? 329 00:24:46,080 --> 00:24:50,600 Is Locke contradicting himself or is there an important 330 00:24:50,810 --> 00:24:54,140 distinction here? 331 00:24:54,409 --> 00:24:58,070 In order to answer that question, which will decide Locke's fit 332 00:24:58,240 --> 00:25:02,100 with the libertarian view, we need to look closely 333 00:25:02,200 --> 00:25:05,180 at what legitimate government looks like for Locke, 334 00:25:05,649 --> 00:25:08,220 and we turn to that next time. 335 00:25:14,840 --> 00:25:17,260 Nicola, if you didn't think you'd get caught, 336 00:25:18,780 --> 00:25:20,480 would you pay your taxes? 337 37 00:25:23,750 --> 00:25:28,610 I don't think so. I would rather have a system 338 00:25:28,820 --> 00:25:34,340 personally that I could give money to exactly those sections 339 00:25:34,429 --> 00:25:38,930 of the government that I support and not just blanket support of it. 340 00:25:39,110 --> 00:25:40,420 You'd rather be in the state of nature, 341 00:25:40,520 --> 00:25:42,350 at least on April 15th. 342 00:25:49,740 --> 00:25:57,420 Last time, we began to discuss Locke's state of nature, 343 00:25:58,760 --> 00:26:05,210 his account of private property, his theory of legitimate government, 344 00:26:05,730 --> 00:26:10,100 which is government based on consent and also limited government. 345 00:26:12,520 --> 00:26:15,190 Locke believes in certain fundamental rights that constrain 346 38 00:26:15,520 --> 00:26:19,230 what government can do, and he believes that those rights 347 00:26:19,340 --> 00:26:23,940 are natural rights, not rights that flow from law 348 00:26:24,590 --> 00:26:26,790 or from government. 349 00:26:27,570 --> 00:26:32,090 And so Locke's great philosophical experiment 350 00:26:32,189 --> 00:26:37,450 is to see if he can give an account of how there could be a right 351 00:26:37,679 --> 00:26:44,610 to private property without consent before government and legislators 352 00:26:44,830 --> 00:26:47,930 arrive on the scene to define property. 353 00:26:48,649 --> 00:26:51,220 That's his question. That's his claim. 354 00:26:51,439 --> 00:26:55,100 There is a way Locke argues to create property, 355 00:26:55,460 --> 00:26:58,420 not just in the things 39 we gather and hunt, 356 00:26:58,570 --> 00:27:02,780 but in the land itself, provided there is enough 357 00:27:03,090 --> 00:27:05,580 and as good left for others. 358 00:27:05,909 --> 00:27:09,520 Today, I want to turn to the question of consent, 359 00:27:09,860 --> 00:27:12,220 which is Locke's second big idea. 360 00:27:12,500 --> 00:27:15,820 Private property is one; consent is the other. 361 00:27:19,470 --> 00:27:22,530 What is the work of consent? 362 00:27:23,760 --> 00:27:27,360 People here have been invoking the idea of consent 363 00:27:27,500 --> 00:27:30,000 since we began since the first week. 364 00:27:30,100 --> 00:27:32,100 Do you remember when we were talking about 40 365 00:27:32,899 --> 00:27:34,900 pushing the fat man off the bridge, someone said, 366 00:27:35,120 --> 00:27:38,550 "But he didn't agree to sacrifice himself. 367 00:27:39,060 --> 00:27:41,380 It would be different if he consented." 368 00:27:42,220 --> 00:27:44,780 Or when we were talking about the cabin boy, 369 00:27:46,820 --> 00:27:48,700 killing and eating the cabin boy. 370 00:27:49,330 --> 00:27:51,660 Some people said, "Well, if they had consented 371 00:27:51,760 --> 00:27:53,460 to a lottery, it would be different. 372 00:27:53,800 --> 00:27:55,380 Then it would be all right." 373 00:27:55,699 --> 00:27:59,780 So consent has come up a lot and here in John Locke, 374 00:28:00,429 --> 00:28:04,260 41 we have one of the great philosophers of consent. 375 00:28:05,699 --> 00:28:08,500 Consent is an obvious familiar idea in moral 376 00:28:08,800 --> 00:28:11,200 and political philosophy. 377 00:28:11,500 --> 00:28:15,100 Locke says that legitimate government is government founded 378 00:28:15,100 --> 00:28:18,900 on consent and who, nowadays, would disagree with him? 379 00:28:20,310 --> 00:28:22,660 Sometimes, when the ideas of political philosophers 380 00:28:22,879 --> 00:28:28,200 are as familiar as Locke's ideas about consent, 381 00:28:28,959 --> 00:28:32,660 it's hard to make sense of them or at least to find them very interesting. 382 00:28:33,189 --> 00:28:36,640 But there are some puzzles, some strange features 383 00:28:38,310 --> 00:28:40,030 42 of Locke's account of consent 384 00:28:40,300 --> 00:28:43,900 as the basis of legitimate government 385 00:28:44,080 --> 00:28:46,300 and that's what I'd like to take up today. 386 00:28:48,260 --> 00:28:53,590 One way of testing the plausibility of Locke's idea 387 00:28:53,750 --> 00:28:57,850 of consent and also of probing some of its perplexities 388 00:29:00,720 --> 00:29:04,380 is to ask just what a legitimate government 389 00:29:04,740 --> 00:29:08,540 founded on consent can do, what are its powers 390 00:29:08,760 --> 00:29:10,700 according to Locke. 391 00:29:11,820 --> 00:29:14,590 Well, in order to answer that question, 392 00:29:14,780 --> 00:29:20,780 it helps to remember 43 what the state of nature is like. 393 00:29:21,260 --> 00:29:24,360 Remember, the state of nature is the condition that 394 00:29:24,620 --> 00:29:30,780 we decide to leave, and that's what gives rise to consent. 395 00:29:31,129 --> 00:29:34,700 Why not stay there? Why bother with government at all? 396 00:29:36,000 --> 00:29:39,200 Well, what is Locke's answer to that question? 397 00:29:39,490 --> 00:29:42,500 He says there are some inconveniences in the state of nature 398 00:29:42,780 --> 00:29:45,580 but what are those inconveniences? 399 00:29:45,889 --> 00:29:52,350 The main inconvenience is that everyone can enforce 400 00:29:52,480 --> 00:29:54,540 the law of nature. 401 00:29:54,919 --> 00:29:57,460 Everyone is an enforcer, 44 or what Locke calls 402 00:29:57,639 --> 00:30:05,540 "the executor" of the state of nature, and he means executor literally. 403 00:30:06,600 --> 00:30:09,980 If someone violates the law of nature, 404 00:30:10,959 --> 00:30:15,590 he is an aggressor. He is beyond reason 405 00:30:16,949 --> 00:30:18,760 and you can punish him. 406 00:30:21,129 --> 00:30:23,720 And you don't have to be too careful or fine about 407 00:30:23,879 --> 00:30:27,220 gradations of punishment in the state of nature. 408 00:30:27,320 --> 00:30:29,210 You can kill him. You can certainly kill 409 00:30:29,429 --> 00:30:34,630 someone who comes after you, who tries to murder you. 410 00:30:35,340 --> 00:30:37,100 That's self defense. 45 411 00:30:37,659 --> 00:30:39,940 But the enforcement power, the right to punish, 412 00:30:40,169 --> 00:30:42,810 everyone can do the punishing in the state of nature. 413 00:30:43,639 --> 00:30:45,630 And not only can you punish with death people 414 00:30:45,889 --> 00:30:50,280 who come after you seeking to take your life, 415 00:30:51,320 --> 00:30:55,240 you can also punish a thief who tries to steal your goods 416 00:30:55,439 --> 00:30:57,990 because that also counts as aggression against 417 00:30:58,090 --> 00:31:00,450 the law of nature. 418 00:31:01,669 --> 00:31:04,420 If someone has stolen from a third party, 419 00:31:04,590 --> 00:31:08,800 you can go after him. Why is this? 46 420 00:31:09,189 --> 00:31:13,400 Well, violations of the law of nature are an act of aggression. 421 00:31:14,550 --> 00:31:18,580 There is no police force. There are no judges, no juries, 422 00:31:18,860 --> 00:31:23,310 so everyone is the judge in his or her own case. 423 00:31:24,790 --> 00:31:27,670 And Locke observes that when people are the judges 424 00:31:27,870 --> 00:31:31,300 of their own cases, they tend to get carried away, 425 00:31:33,360 --> 00:31:35,950 and this gives rise to the inconvenience 426 00:31:36,230 --> 00:31:38,450 in the state of nature. 427 00:31:38,870 --> 00:31:41,330 People overshoot the mark. There is aggression. 428 00:31:41,500 --> 00:31:45,740 There is punishment and before you know it, 47 429 00:31:45,840 --> 00:31:51,070 everybody is insecure in the enjoyment of his or her 430 00:31:51,459 --> 00:31:55,200 unalienable rights to life, liberty, and property. 431 00:31:56,709 --> 00:32:02,300 Now, he describes in pretty harsh and even grim terms 432 00:32:03,159 --> 00:32:07,710 what you can do to people who violate the law of nature. 433 00:32:07,889 --> 00:32:11,320 "One may destroy a man who makes war upon him ... 434 00:32:11,469 --> 00:32:15,420 for the same reason that he may kill a wolf or a lion. 435 00:32:16,199 --> 00:32:19,780 Such men have no other rule, but that of force and violence," 436 00:32:20,240 --> 00:32:25,680 listen to this, "and so may be treated as beasts of prey, those 437 00:32:25,780 --> 00:32:31,240 dangerous and noxious creatures, that will be sure to destroy to you 48 438 00:32:31,350 --> 00:32:35,850 if you fall into their power", so kill them first. 439 00:32:36,260 --> 00:32:44,020 So, what starts out as a seemingly benign state of nature 440 00:32:44,300 --> 00:32:46,840 where everyone is free and yet where there is a law 441 00:32:47,120 --> 00:32:50,890 and the law respects people's rights, and those rights are so powerful 442 00:32:51,040 --> 00:32:52,850 that they're unalienable. 443 00:32:52,980 --> 00:32:59,310 What starts out looking very benign, once you look closer, 444 00:33:00,060 --> 00:33:05,890 is pretty fierce and filled with violence, and that's why people want to leave. 445 00:33:07,659 --> 00:33:11,900 How do they leave? Well, here is where consent comes in. 446 00:33:12,490 --> 00:33:15,790 The only way to escape from the state of nature 49 447 00:33:16,169 --> 00:33:26,890 is to undertake an act of consent where you agree to give up 448 00:33:27,219 --> 00:33:31,610 the enforcement power and to create a government 449 00:33:32,600 --> 00:33:39,940 or a community where there will be a legislature to make law 450 00:33:40,679 --> 00:33:46,350 and where everyone agrees in advance, everyone who enters, 451 00:33:46,679 --> 00:33:51,490 agrees in advance to abide by whatever the majority decides. 452 00:33:51,830 --> 00:33:53,480 But then the question, and this is our question 453 00:33:53,790 --> 00:33:55,260 and here is where I want to get your views, 454 00:33:55,360 --> 00:34:01,890 then the question is what powers, what can the majority decide? 455 00:34:02,510 --> 00:34:07,610 Now, here, it gets tricky for Locke 50 because you remember, 456 00:34:07,709 --> 00:34:11,870 alongside the whole story about consent and majority rule, 457 00:34:12,069 --> 00:34:15,080 there are these natural rights, the law of nature, 458 00:34:15,240 --> 00:34:17,940 these unalienable rights, and you remember, 459 00:34:17,940 --> 00:34:25,040 they don't disappear when people join together to create a civil society. 460 00:34:26,390 --> 00:34:29,820 So even once the majority is in charge, 461 00:34:30,160 --> 00:34:36,690 the majority can't violate your inalienable rights, 462 00:34:36,880 --> 00:34:39,300 can't violate your fundamental right to life, 463 00:34:39,400 --> 00:34:41,760 liberty, and property. 464 00:34:41,860 --> 00:34:43,330 So here is the puzzle. 51 465 00:34:46,009 --> 00:34:48,290 How much power does the majority have? 466 00:34:48,380 --> 00:34:52,880 How limited is the government created by consent? 467 00:34:55,620 --> 00:35:01,890 It's limited by the obligation on the part of the majority 468 00:35:02,230 --> 00:35:09,550 to respect and to enforce the fundamental natural rights of the citizens. 469 00:35:10,089 --> 00:35:11,180 They don't give those up. We don't give those up 470 00:35:11,450 --> 00:35:13,440 when we enter government. 471 00:35:13,600 --> 00:35:17,310 That's this powerful idea taken over from Locke 472 00:35:17,410 --> 00:35:23,900 by Jefferson in the Declaration. Unalienable rights. 473 00:35:24,600 --> 00:35:29,740 So, let's go to our two cases. Remember Michael Jordan, Bill Gates, 52 474 00:35:29,960 --> 00:35:33,660 the libertarian objection to taxation for redistribution? 475 00:35:33,880 --> 00:35:36,140 Well, what about Locke's limited government? 476 00:35:36,529 --> 00:35:43,480 Is there anyone who thinks that Locke does give grounds 477 00:35:43,950 --> 00:35:48,340 for opposing taxation for redistribution? 478 00:35:51,049 --> 00:35:53,300 Anybody? Go ahead. 479 00:35:54,740 --> 00:35:58,740 If the majority rules that there should be taxation, 480 00:35:59,390 --> 00:36:02,580 even if the minority should still not have to be taxed 481 00:36:02,860 --> 00:36:08,740 because that's taking away property, which is one of the rights of nature. 482 00:36:09,259 --> 00:36:12,360 All right so, and what's your name? - Ben. 53 483 00:36:12,500 --> 00:36:19,800 Ben. So if the majority taxes the minority 484 00:36:22,560 --> 00:36:24,730 without the consent of the minority 485 00:36:24,830 --> 00:36:29,330 to that particular tax law, it does amount to a taking 486 00:36:29,660 --> 00:36:33,030 of their property without their consent 487 00:36:33,200 --> 00:36:37,980 and it would seem that Locke should object to that. 488 00:36:40,480 --> 00:36:43,250 You want some textual support for your view, 489 00:36:43,350 --> 00:36:45,260 for your reading of Locke, Ben? 490 00:36:45,299 --> 00:36:46,200 Sure. 491 00:36:46,500 --> 00:36:51,000 All right. I brought some along just in case you raised it. 54 492 00:36:53,380 --> 00:36:57,780 If you have your texts, look at 138, passage 138. 493 00:36:58,630 --> 00:37:02,210 "The supreme power," by which Locke means the legislature, 494 00:37:02,390 --> 00:37:04,430 "cannot take from any man any part of his property 495 00:37:04,670 --> 00:37:09,040 without his own consent, for the preservation of property 496 00:37:09,259 --> 00:37:11,850 being the end of government and that for which men 497 00:37:12,060 --> 00:37:14,830 enter into society, it necessarily supposes 498 00:37:14,980 --> 00:37:17,810 and requires that people should have property." 499 00:37:18,140 --> 00:37:20,310 That was the whole reason for entering society in the first place, 500 00:37:20,839 --> 00:37:22,300 to protect the right to property. 55 501 00:37:22,560 --> 00:37:24,790 And when Locke speaks about the right to property, 502 00:37:25,200 --> 00:37:29,990 he often uses that as a kind of global term for the whole category, 503 00:37:30,109 --> 00:37:33,150 the right to life, liberty, and property. 504 00:37:35,460 --> 00:37:39,620 So that part of Locke, that beginning of 138, 505 00:37:39,880 --> 00:37:46,420 seems to support Ben's reading. But what about the part of 138, 506 00:37:47,640 --> 00:37:50,280 if you keep reading, "Men, therefore, in society 507 00:37:50,460 --> 00:37:54,490 having property, they have such a right to the goods, 508 00:37:54,740 --> 00:37:59,840 which by the law of the community are theirs." 509 00:38:00,069 --> 00:38:01,880 Look at this. 56 510 00:38:02,450 --> 00:38:06,110 "And that no one can take from them without their consent." 511 00:38:06,630 --> 00:38:10,380 And then at the end of this passage, he says, 512 00:38:10,600 --> 00:38:12,690 "So it's a mistake to think that the legislative power 513 00:38:13,130 --> 00:38:17,340 can do what it will and dispose of the estates of the subject arbitrarily 514 00:38:17,569 --> 00:38:20,870 or take any part of them at pleasure." 515 00:38:21,600 --> 00:38:23,560 Here's what's elusive. 516 00:38:25,380 --> 00:38:27,320 On the one hand, he says the government 517 00:38:27,529 --> 00:38:29,380 can't take your property without your consent. 518 00:38:29,750 --> 00:38:34,250 He is clear about that. But then he goes on to say, 519 57 00:38:34,339 --> 00:38:36,260 and that's the natural right to property. 520 00:38:36,480 --> 00:38:39,440 But then, it seems that property, what counts as property 521 00:38:39,650 --> 00:38:41,220 is not natural but conventional 522 00:38:41,500 --> 00:38:43,670 defined by the government. 523 00:38:46,230 --> 00:38:50,910 "The goods of which by the law of the community are theirs." 524 00:38:52,549 --> 00:38:57,520 And the plot thickens if you look ahead to Section 140. 525 00:38:58,529 --> 00:39:00,700 In 140, he says, "Governments can't be supported 526 00:39:00,839 --> 00:39:01,830 without great charge. 527 00:39:02,109 --> 00:39:05,120 Government is expensive and it's fit that everyone 528 00:39:05,220 --> 00:39:07,080 58 who enjoys his share of the protection 529 00:39:07,180 --> 00:39:09,720 should pay out of his estate." 530 00:39:11,040 --> 00:39:13,820 And then here is the crucial line. "But still, it must be 531 00:39:14,040 --> 00:39:19,740 with his own consent, i.e. the consent of the majority, 532 00:39:20,240 --> 00:39:21,180 giving it either by themselves, 533 00:39:21,400 --> 00:39:25,580 or through their representatives." So what is Locke actually saying? 534 00:39:28,160 --> 00:39:33,180 Property is natural in one sense but conventional in another. 535 00:39:33,400 --> 00:39:36,100 It's natural in the sense that we have a fundamental 536 00:39:36,359 --> 00:39:40,140 unalienable right that there be property, 537 00:39:40,480 --> 00:39:43,830 that the institution of property 59 exist and be respected 538 00:39:44,040 --> 00:39:45,450 by the government. 539 00:39:45,950 --> 00:39:49,560 So an arbitrary taking of property would be a violation 540 00:39:49,680 --> 00:39:54,810 of the law of nature and would be illegitimate. 541 00:39:55,580 --> 00:39:58,980 But it's a further question, here is the conventional 542 00:39:59,160 --> 00:40:00,940 aspect of property, it's a further question 543 00:40:01,200 --> 00:40:06,700 what counts as property, how it's defined and what counts 544 00:40:08,569 --> 00:40:12,520 as taking property, and that's up to the government. 545 00:40:13,089 --> 00:40:18,080 So the consent, here, we're coming back 546 00:40:18,359 --> 00:40:21,660 to our question, 60 what is the work of consent? 547 00:40:22,540 --> 00:40:24,950 What it takes for taxation to be legitimate 548 00:40:25,630 --> 00:40:30,260 is that it be by consent, not the consent of Bill Gates himself 549 00:40:30,589 --> 00:40:33,290 if he is the one who has to pay the tax, 550 00:40:34,120 --> 00:40:36,300 but by the consent that he and we, 551 00:40:36,650 --> 00:40:39,260 all of us within the society, gave when we emerged 552 00:40:39,520 --> 00:40:42,300 from the state of nature and created the government 553 00:40:43,680 --> 00:40:47,780 in the first place. It's the collective consent. 554 00:40:50,500 --> 00:40:56,390 And by that reading, it looks like consent is doing 555 00:40:56,600 --> 00:41:02,100 61 a whole lot and the limited government consent creates 556 00:41:02,330 --> 00:41:05,080 isn't all that limited. 557 00:41:06,930 --> 00:41:11,770 Does anyone want to respond to that or have a question about that? 558 00:41:12,600 --> 00:41:15,050 Go ahead. Stand up. 559 00:41:15,859 --> 00:41:19,550 Well, I'm just wondering what Locke's view is on 560 00:41:20,350 --> 00:41:22,780 once you have a government that's already in place, 561 00:41:22,880 --> 00:41:26,470 whether it is possible for people who are born 562 00:41:26,569 --> 00:41:29,340 into that government to then leave and return 563 00:41:29,560 --> 00:41:31,220 to the state of nature? I mean, I don't think 564 00:41:31,440 --> 00:41:34,330 that Locke mentioned 62 that at all in the... 565 00:41:35,109 --> 00:41:36,380 What do you think? 566 00:41:37,250 --> 00:41:43,780 Well, I think, as the convention, it would be very difficult to leave 567 00:41:43,880 --> 00:41:49,080 the government because you are no longer, 568 00:41:50,319 --> 00:41:52,860 because nobody else is just living in the state of nature. 569 00:41:53,000 --> 00:41:57,790 Everybody else is now governed by this legislature. 570 00:41:58,259 --> 00:42:00,020 What would it mean today, you're asking. 571 00:42:00,400 --> 00:42:01,740 And what's your name? - Nicola. 572 00:42:01,960 --> 00:42:04,860 Nicola, to leave the state. Supposed you wanted to leave 573 00:42:05,359 --> 00:42:09,860 civil society today. 63 You want to withdraw your consent 574 00:42:10,220 --> 00:42:11,710 and return to the state of nature. 575 00:42:12,000 --> 00:42:13,340 Well, because you didn't actually consent to it. 576 00:42:13,430 --> 00:42:18,780 You were just born into it. It was your ancestors who joined. 577 00:42:19,150 --> 00:42:24,720 Right. You didn't sign the social contract. I didn't sign it. 578 00:42:24,819 --> 00:42:25,500 Exactly. 579 00:42:25,790 --> 00:42:29,450 All right, so what does Locke say there? Yes? 580 00:42:31,120 --> 00:42:33,220 I don't think Locke says you have to sign anything. 581 00:42:33,600 --> 00:42:35,860 I think that he says that it's kind of implied consent. 582 00:42:36,080 --> 00:42:36,700 Implied? 64 583 00:42:36,920 --> 00:42:38,700 Taking government's services, you are implying that 584 00:42:38,799 --> 00:42:39,850 you are consenting to the government 585 00:42:40,100 --> 00:42:41,540 taking things from you. 586 00:42:41,920 --> 00:42:44,680 All right, so implied consent. That's a partial answer 587 00:42:44,880 --> 00:42:46,760 to this challenge. Now, you may not think 588 00:42:46,870 --> 00:42:49,570 that implied consent is as good as the real thing. 589 00:42:49,680 --> 00:42:51,780 Is that what you're shaking your head about, Nicola? 590 00:42:52,040 --> 00:42:54,860 Speak up. Stand up and speak up. 591 00:42:55,080 --> 00:42:58,290 I don't think that necessarily just by utilizing the government's 592 65 00:42:58,620 --> 00:43:05,780 various resources that we are necessarily implying that 593 00:43:06,000 --> 00:43:10,410 we agree with the way that this government was formed 594 00:43:11,480 --> 00:43:15,610 or that we have consented to actually join into the social contract. 595 00:43:16,420 --> 00:43:18,830 So you don't think the idea of implied consent 596 00:43:19,049 --> 00:43:21,820 is strong enough to generate any obligation at all to obey 597 00:43:22,080 --> 00:43:23,140 the government? 598 00:43:23,779 --> 00:43:25,350 Not necessarily, no. 599 00:43:25,880 --> 00:43:28,750 Nicola, if you didn't think you'd get caught, 600 00:43:29,799 --> 00:43:31,780 would you pay your taxes? 601 00:43:34,879 --> 00:43:40,190 I don't think so. I would rather 66 have a system, personally, 602 00:43:40,790 --> 00:43:45,340 that I could give money to exactly those sections 603 00:43:45,440 --> 00:43:46,820 of the government that I support 604 00:43:47,040 --> 00:43:49,780 and not just blanket support of it. 605 00:43:50,000 --> 00:43:51,350 You'd rather be in the state of nature, 606 00:43:51,580 --> 00:43:53,380 at least on April 15th. 607 00:43:58,390 --> 00:44:00,430 But what I'm trying to get at is do you consider that 608 00:44:00,640 --> 00:44:03,280 you are under no obligation, since you haven't actually entered 609 00:44:03,569 --> 00:44:07,130 into any act of consent, but for prudential reasons, 610 00:44:07,279 --> 00:44:09,810 you do what you're supposed o do according to the law? 67 611 00:44:10,150 --> 00:44:11,540 Exactly. 612 00:44:11,740 --> 00:44:14,590 If you look at it that way, then you're violating another one 613 00:44:14,690 --> 00:44:16,700 of Locke's treatises, which is that you can't take 614 00:44:16,799 --> 00:44:21,280 anything from anyone else. Like, you can't take the government's 615 00:44:21,540 --> 00:44:24,730 services and then not give them anything in return. 616 00:44:25,560 --> 00:44:28,620 If you want to go live in the state of nature, that's fine, 617 00:44:28,980 --> 00:44:30,450 but you can't take anything from the government 618 00:44:30,549 --> 00:44:32,380 because by the government's terms, which are the only terms 619 00:44:32,560 --> 00:44:34,540 under which you can enter the agreement, 68 620 00:44:34,830 --> 00:44:36,860 say that you have to pay taxes to take those things. 621 00:44:37,200 --> 00:44:40,180 So you are saying that Nicola can go back into the state of nature 622 00:44:40,500 --> 00:44:42,800 if she wants to but she can't drive on Mass. Ave.? 623 00:44:43,000 --> 00:44:44,100 Exactly. 624 00:44:44,680 --> 00:44:48,340 I want to raise the stakes beyond using Mass. Ave. 625 00:44:49,310 --> 00:44:51,400 and even beyond taxation. 626 00:44:51,629 --> 00:44:55,460 What about life? What about military conscription? 627 00:44:56,180 --> 00:44:58,460 Yes, what do you say? Stand up. 628 00:44:59,100 --> 00:45:02,630 First of all, we have to remember that sending people to war 629 69 00:45:02,779 --> 00:45:05,570 is not necessarily implying that they'll die. 630 00:45:05,790 --> 00:45:08,620 I mean, obviously, you're not raising their chances here 631 00:45:08,950 --> 00:45:11,960 but it's not a death penalty. 632 00:45:12,080 --> 00:45:14,380 So if you're going to discuss whether or not 633 00:45:14,750 --> 00:45:18,180 military conscription is equivalent to suppressing 634 00:45:18,460 --> 00:45:21,810 people's right to life, you shouldn't approach it that way. 635 00:45:22,759 --> 00:45:25,880 Secondly, the real problem here is Locke has this view 636 00:45:26,160 --> 00:45:31,010 about consent and natural rights. But you're not allowed to give up 637 00:45:31,240 --> 00:45:34,260 your natural rights either. So the real question is 638 70 00:45:34,990 --> 00:45:38,420 how does he himself figure it out between 639 00:45:38,600 --> 00:45:43,250 "I agree to give up my life, give up my property" 640 00:45:43,509 --> 00:45:47,020 when he talks about taxes or military conscription for the fact. 641 00:45:47,359 --> 00:45:49,940 But I guess Locke would be against suicide, 642 00:45:50,279 --> 00:45:53,470 and that's still my own consent. I agree by taking my life. 643 00:45:53,569 --> 00:45:55,500 All right, good. All right, what's your name? - Eric. 644 00:45:55,720 --> 00:45:57,540 So Eric brings us back to the puzzle we've been 645 00:45:57,759 --> 00:46:00,700 wrestling with since we started reading Locke. 646 00:46:00,990 --> 00:46:04,260 On the one hand, we have these unalienable rights 71 647 00:46:05,040 --> 00:46:07,430 to life, liberty, and property, which means that even we 648 00:46:07,640 --> 00:46:10,660 don't have the power to give them up, 649 00:46:10,879 --> 00:46:14,440 and that's what creates the limits on legitimate government. 650 00:46:14,650 --> 00:46:17,680 It's not what we consent to that limits government. 651 00:46:18,330 --> 00:46:21,700 It's what we lack the power to give away 652 00:46:23,529 --> 00:46:25,620 when we consent that limits government. 653 00:46:27,710 --> 00:46:32,420 That's the point at the heart of Locke's whole account 654 00:46:32,640 --> 00:46:34,430 of legitimate government. 655 00:46:35,180 --> 00:46:39,360 But now, you say, "well, if we can't give up our own life, 72 656 00:46:39,540 --> 00:46:43,120 if we can't commit suicide, if we can't give up our right 657 00:46:43,299 --> 00:46:45,260 to property, how can we then agree 658 00:46:45,370 --> 00:46:49,110 to be bound by a majority that will force us to sacrifice 659 00:46:49,210 --> 00:46:51,850 our lives or give up our property"? 660 00:46:53,990 --> 00:46:57,380 Does Locke have a way out of this or is he basically 661 00:46:59,190 --> 00:47:03,980 sanctioning an all-powerful government, 662 00:47:04,080 --> 00:47:09,170 despite everything he says about unalienable rights? 663 00:47:09,400 --> 00:47:11,020 Does he have a way out of it? Who would speak here 664 00:47:11,120 --> 00:47:15,960 in defense of Locke or make sense, find a way out of this predicament? 73 665 00:47:16,440 --> 00:47:17,760 Yes. - All right, go ahead. 666 00:47:17,879 --> 00:47:19,850 I feel like there is a general distinction we made between 667 00:47:19,950 --> 00:47:22,460 the right to life that individuals possess 668 00:47:22,569 --> 00:47:24,690 and the fact that the government cannot take away 669 00:47:24,839 --> 00:47:27,740 a single individual's right to life. 670 00:47:28,549 --> 00:47:32,160 I think if you look at conscription as the government picking out 671 00:47:32,359 --> 00:47:35,420 certain individuals to go fight in war, then that would be a violation 672 00:47:35,520 --> 00:47:38,790 of their natural right to life. On the other hand, 673 00:47:38,870 --> 00:47:43,370 if you have conscription, let's say a lottery for example, 74 674 00:47:44,009 --> 00:47:48,430 then in that case I would view that as the population picking 675 00:47:48,580 --> 00:47:51,220 their representatives to defend them in the case of war, 676 00:47:51,640 --> 00:47:53,210 the idea being that since the whole population 677 00:47:53,440 --> 00:47:55,900 cannot go out there to defend its own right to property, 678 00:47:56,129 --> 00:47:59,530 it picks its own representatives through a process that's essentially 679 00:47:59,819 --> 00:48:03,300 random and then these sort of elected representatives 680 00:48:03,580 --> 00:48:06,880 go out and fight for the rights of the people. 681 00:48:07,160 --> 00:48:09,410 It works very similar, it works just like 682 00:48:09,509 --> 00:48:11,840 an elected government, in my opinion. 75 683 00:48:12,120 --> 00:48:14,580 All right, so an elected government can conscript citizens 684 00:48:14,680 --> 00:48:17,560 to go out and defend the way of life, 685 00:48:17,870 --> 00:48:23,060 the community that makes the enjoyment of rights possible? 686 00:48:23,279 --> 00:48:27,480 I think it can because to me, it seems that it's very similar 687 00:48:27,770 --> 00:48:31,720 to the process of electing representatives for legislature. 688 00:48:32,129 --> 00:48:37,830 Although here, it's as if the government 689 00:48:38,029 --> 00:48:44,250 is electing by conscription certain citizens to go die 690 00:48:44,490 --> 00:48:49,220 for the sake of the whole. Is that consistent with respect 691 00:48:49,450 --> 00:48:51,440 for a natural right to liberty? 76 692 00:48:51,700 --> 00:48:53,720 Well, what I would say there is there is a distinction 693 00:48:53,970 --> 00:48:58,880 between picking out individuals and having a random 694 00:48:59,060 --> 00:49:01,020 choice of individuals. Like ... 695 00:49:01,020 --> 00:49:02,720 Between picking out... let me make sure, 696 00:49:02,799 --> 00:49:06,930 between picking out individuals, let me... what's your name? 697 00:49:07,109 --> 00:49:08,500 Gokul. 698 00:49:08,750 --> 00:49:11,760 Gokul says there's a difference between picking out individuals 699 00:49:11,859 --> 00:49:16,070 to lay down their lives and having a general law. 700 00:49:16,830 --> 00:49:22,500 I think this is the answer Locke would give, actually, Gokul. 701 77 00:49:23,100 --> 00:49:25,740 Locke is against arbitrary government. 702 00:49:25,960 --> 00:49:30,940 He is against the arbitrary taking, the singling out of Bill Gates 703 00:49:31,200 --> 00:49:33,660 to finance the war in Iraq. He is against singling out 704 00:49:34,000 --> 00:49:37,860 a particular citizen or group of people 705 00:49:38,080 --> 00:49:42,340 to go off and fight. But if there is a general law 706 00:49:42,560 --> 00:49:45,620 such that the government's choice, 707 00:49:45,839 --> 00:49:49,500 the majority's action is non-arbitrary, 708 00:49:50,080 --> 00:49:58,180 it doesn't really amount to a violation of people's basic rights. 709 00:49:58,400 --> 00:50:01,760 What does count as a violation is an arbitrary taking 78 710 00:50:02,100 --> 00:50:04,940 because that would essentially say, not only to Bill Gates, 711 00:50:05,310 --> 00:50:08,540 but to everyone, there is no rule of law. 712 00:50:08,890 --> 00:50:14,660 There is no institution of property. Because at the whim of the king, 713 00:50:14,759 --> 00:50:16,600 or for that matter, of the parliament, 714 00:50:16,960 --> 00:50:23,130 we can name you or you to give up your property 715 00:50:23,240 --> 00:50:25,920 or to give up your life. But so long as there is 716 00:50:26,040 --> 00:50:34,900 a non-arbitrary rule of law, then it's permissible. 717 00:50:35,270 --> 00:50:40,080 Now, you may say this doesn't amount to a very limited government, 718 00:50:40,370 --> 00:50:42,960 and the libertarian may complain that Locke is not 79 719 00:50:43,120 --> 00:50:45,570 such a terrific ally after all. 720 00:50:45,839 --> 00:50:50,220 The libertarian has two grounds for disappointment in Locke. 721 00:50:50,580 --> 00:50:55,860 First, that the rights are unalienable and therefore, 722 00:50:56,140 --> 00:50:58,780 I don't really own myself after all. 723 00:50:59,299 --> 00:51:02,910 I can't dispose of my life or my liberty or my property 724 00:51:03,250 --> 00:51:07,490 in a way that violates my rights. That's disappointment number one. 725 00:51:07,899 --> 00:51:12,080 Disappointment number two, once there is a legitimate government 726 00:51:12,310 --> 00:51:16,810 based on consent, the only limits for Locke 727 00:51:17,879 --> 00:51:23,940 are limits on arbitrary takings of life or of liberty or of property. 80 728 00:51:24,160 --> 00:51:27,060 But if the majority decides, if the majority promulgates 729 00:51:27,279 --> 00:51:34,900 a generally applicable law and if it votes duly according 730 00:51:35,120 --> 00:51:39,620 to fair procedures, then there is no violation, 731 00:51:39,950 --> 00:51:44,780 whether it's a system of taxation or a system of conscription. 732 00:51:45,040 --> 00:51:47,790 So it's clear that Locke is worried 733 00:51:48,129 --> 00:51:52,290 about the absolute arbitrary power of kings, 734 00:51:53,359 --> 00:51:56,100 but it's also true, and here is the 735 00:51:56,430 --> 00:52:01,010 darker side of Locke, that this great theorist of consent 736 00:52:01,109 --> 00:52:02,920 came up with a theory 81 of private property 737 00:52:03,040 --> 00:52:08,620 that didn't require consent that may, 738 00:52:08,970 --> 00:52:12,290 and this goes back to the point Rochelle made last time, 739 00:52:12,549 --> 00:52:16,260 may have had something to do with Locke's second concern, 740 00:52:16,859 --> 00:52:18,300 which was America. 741 00:52:18,440 --> 00:52:19,820 You remember, when he talks about 742 00:52:20,000 --> 00:52:22,120 the state of nature, he is not talking about 743 00:52:22,399 --> 00:52:27,160 an imaginary place. "In the beginning," he says, 744 00:52:27,310 --> 00:52:30,970 "All the world was America." And what was going on in America? 745 00:52:31,620 --> 00:52:37,760 The settlers were enclosing land 82 and engaged in wars 746 00:52:37,940 --> 00:52:40,140 with the Native Americans. 747 00:52:40,440 --> 00:52:46,070 Locke, who was an administrator of one of the colonies, 748 00:52:46,240 --> 00:52:51,100 may have been as interested in providing a justification 749 00:52:51,420 --> 00:52:55,870 for private property through enclosure without consent 750 00:52:56,069 --> 00:53:01,100 through enclosure and cultivation, as he was with developing a theory 751 00:53:01,580 --> 00:53:06,840 of government based on consent that would rein in kings 752 00:53:07,020 --> 00:53:09,660 and arbitrary rulers. 753 00:53:09,940 --> 00:53:12,820 The question we're left with, the fundamental question 754 00:53:13,160 --> 00:53:17,000 we still haven't answered is what then becomes of consent? 83 755 00:53:17,180 --> 00:53:20,290 What work can it do? What is its moral force? 756 00:53:20,730 --> 00:53:24,900 What are the limits of consent? Consent matters not only 757 00:53:25,069 --> 00:53:27,820 for governments, but also for markets. 758 00:53:28,279 --> 00:53:32,310 And beginning next time, we're going to take up questions 759 00:53:32,410 --> 00:53:37,500 of the limits of consent in the buying and selling of goods. 760 00:53:45,899 --> 00:53:47,900 Don't miss the chance to interact online 761 00:53:48,120 --> 00:53:50,620 with other viewers of Justice. Join the conversation, 762 00:53:50,839 --> 00:53:53,300 take a pop quiz, watch lectures you've missed 763 00:53:53,520 --> 00:53:54,620 and learn a lot more. 84 764 00:53:54,839 --> 00:53:57,960 Visit JusticeHarvard.org. It's the right thing to do. 765 00:54:38,200 --> 00:54:41,400 Funding for this program is provided by... 766 00:54:42,480 --> 00:54:44,740 Additional funding provided by... 85