John Locke and the Basketball Analogy

            The opening moves in John Locke’s Second Treatise of Government have dramatic and rhetorical appeal, even if they lack coherence. Strictly speaking, there was no “state of nature” in which fully capable and competent individuals struck bargains with one another. And the idea of an immutable law of nature, or natural law, known axiomatically by the use of right reason begs the question of what makes reason’s claims binding in any substantive way.
            But still, Locke appeals.
            I suggest he does so for pragmatic reasons, and those reasons begin to come into focus in Chapter Three, entitled, “Of the State of War.”
            A review of basics (covered in earlier essays on Locke on this page.)
            In the state of nature men existed outside the confines and obligations of civil society and government. These autonomous creatures had the power and right to do what was necessary to assure their own survival. They consented to leave the state of nature, and to sacrifice the right to do whatsoever they thought proper, in order to enjoy the security and peace of being governed. They sacrificed natural liberty for security's – or ordered liberty’s – and property’s sake.
            Why weren’t folks happy to remain in the state of nature?
            Locke doesn’t see society as the source of all that ails us. He is no Jean Jacques Rousseau, who regarded the state of nature as a condition of pre-social bliss.
            Locke’s commitment to natural law wavers as he considers the state of nature.  If natural rights are obvious to reasonable and rational men, then why do reasonable and rational men need government?
            Watch him argue out of both sides of his mouth:
            First, “Men living together according to reason, without a common Superior on Earth, with Authority to judge between them, is properly the State of Nature.” Sounds good, in theory. Presumably rational beings living according to natural law will live harmoniously. This is the anarchist’s fantasy.
            But then, “Want of a common Judge with Authority, puts all Men in a State of Nature; Force without Right, upon a Man’s Person, makes a State of War, both where there is, and is not, a common Judge.”
            Here’s where my head begins to spin. The reasoning becomes tautological or circular. In the state nature there is no common authority or judge, Locke says. Hence, men are in a state of war. But why? Doesn’t natural right and suzerainty of right reason then govern?
            No, says Locke. Natural right, right reason, the law of nature doesn’t yield the anarchist’s imagined harmony. It yields strife. Locke is closer to Thomas Hobbes’s state of nature, wherein there is a war of all against all, and life is “nasty, poor, solitary, brutish and short,” although Locke is too much of a gentleman to drive things to such a point.
            The lack of an earthly judge, of a central power, yields instability, even violence. Contesting claims to property yield “appeals to heaven,” “it being reasonable that … I have a Right to destroy that which threatens me with Destruction.”
            Put simply, without government, each is free to do as he see fits to protect his own life, liberty and property, and that includes the right to destroy those who threaten him. Such a life is untenable. No one would choose it. Civilization makes comfortable cowards of us all.
            Locke struggles to justify the fact of government early in the Second Treatise.
            He first fumbles with a romantic and clumsy false anthropology. We left Eden to roam the world without society or government to rein us in. In this state of nature, we have natural reason and right, but no harmony.
            He then advances the claim that we have natural rights. We all have them. Presumably these rights can be known by all. But knowing them doesn’t create harmony. In fact, it increases discord, increasing the possibility of violence as we each seek to protect our stake against the claims of others.
            Finally, he settles on something like pragmatism. Look, he all but says, without government every thief in the night could well become your killer, and, because of the uncertainty, you might kill in self-defense. No one could live that way. We need and want community.
            It sort of reminds me of the basketball analogy as used Professor McConnell in his classic constitutional law essay, “Textualism and the Dead Hand of the Past.” Why, McConnell wonders, would contemporary folks care about the opinions and practices of their predecessors? Because if we want to play ball, we need rules of the game. Inventing the rules each time we left the house would be exhausting. Nothing would get done. You can’t play basketball without a prior agreement that ball should go through the hoop, even if it’s patently absurd to run up and down a court throwing a ball at a rim.
            I read Locke as posing a thought experiment to his readers: Imagine your life without government. It would be chaotic, he counsels. He’s seeking a way to justify power and authority to folks with a lively sense of their own rights. The tropes and figures of speech he used resonate still in our time. What the essays in this blog are exploring is how much weight we can actually place on the concepts he employs.

            Not that much, I suspect.
            Natural law and the state of nature have important places in Locke’s Second Treatise. But they don’t bear the weight he pretends they do. In the end, I suggest, the treatise is rooted in pragmatism.
            Next up? Locke on slavery.


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