The Lockean right of self-defense–and stand-your-ground laws

February 27

There is a dispute going on in the blogs over John Locke and self-defense. Firmin DeBrabander, an associate professor of philosophy at the Maryland Institute College of Art, Baltimore, wrote about Locke at the New York Times Opinionator blog, attacking David French at NRO’s The Corner.  DeBrabander also relies on Zach Beauchamp, who in turn relies on Ari Kohen, a political theorist who teaches courses on the history of political thought at the University of Nebraska-Lincoln.

Ultimately, I part company with both sides, but at least David French is discussing some of the relevant evidence and at least he understands that John Locke recognized a natural right of self-defense within societies with generally functioning courts. Though Locke discusses self-defense between two subjects at some length, his version of the right is probably not broad enough to cover some aspects of current stand-your-ground laws.

* * *

Over a year ago, French posted a biblical analysis of self-defense and discussed John Locke’s views, quoting from a long 2008 blog post of mine.  As an atheist myself, I have only a modest interest (and no expertise) in biblical analyses, and I think that the status of stand-your-ground laws under Locke is unclear.  But that Locke believed in a natural right of self-defense even after one joined society appears so obvious that I am at a loss to understand how DeBrabander and Kohen could appear to miss this.  Locke has an entire chapter on self-defense after joining society, Chapter 3 entitled “Of the State of War.”

DeBrabander instead quotes from Chapter 2 of Locke’s Second Treatise, which deals mostly with why people leave the state of nature. And Kohen cites to chapters 18 and 19, which deal with when subjects may treat the government as having been dissolved.  Though the latter chapters are not explications of self-defense within society, Locke bases the people’s right to reconstitute the government as flowing from the individual right of self-defense.  Indeed, in that portion of the Second Treatise, Locke quotes with apparent approval his translation of Barclay, “Self-defence is a part of the law of nature.”  Thus, to the extent that chapters 18 & 19 are relevant, they tend to support, rather than undercut, a natural right of self-defense even after people make a social and political contract.

DeBrabander at the Times offers four short phrases or clauses from Locke that he thinks support his view:

Locke says we must depart nature where each is empowered to execute the Law of Nature because “it’s unreasonable for Men to be Judges in their own cases” since “self-love will make men partial to themselves and their friends” and “Ill Nature, Passion, Revenge will carry them too far in punishing others.” . . .

Civil society, and its institution of a Common Judge who takes over executing the law of nature, relieves us of the “Inconveniences of the State of Nature,” Locke argues — which can be dire indeed.

All four brief Locke clauses are from section 13 of Chapter 2 of Locke’s Second Treatise.  They address why people leave the state of nature and submit to government.  They do not address self-defense situations once both the attacker and the victim are subjects.

Professor Kohen also rejects that Locke supports the right of self-defense:

But for people to establish a political community, Locke asserts that people must give up to the government their natural right to punish criminal behavior and agree to have the government settle grievances. . . .

Perhaps some will argue that we cannot rely on the police, the courts, and prisons to protect us from criminals. I disagree, of course, but Locke has an answer there as well. If the government cannot protect us or chooses not to, Locke tells us, then we are no longer compelled to obey the government and can simply replace it with one better suited to the tasks we’ve assigned to it.

On this, Kohen is either wrong or irrelevant. Replacing the government is NOT the answer to the immediate necessity of a self-defense situation where the courts are unavailable.  Under Locke, the natural right of self-defense is.

* * *

Though all of Chapter 3 of Locke’s Second Treatise is relevant to self-defense, the following portions contain the main conclusion and some of the reasoning:

Sec. 16.  . . . I should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the commonlaw of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power.

Sec. 18. This makes it lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life, any farther than, by the use of force, so to get him in his power, as to take away his money, or what he pleases, from him . . . . [I]t is lawful for me to treat him as one who has put himself into a state of war with me, i.e. kill him if I can; for to that hazard does he justly expose himself, whoever introduces a state of war, and is aggressor in it.

Sec. 19. . . . But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho’ he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. 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.

Sec. 20. But when the actual force is over, the state of war ceases between those that are in society, and are equally on both sides subjected to the fair determination of the law; because then there lies open the remedy of appeal for the past injury, and to prevent future harm: but where no such appeal is, as in the state of nature, for want of positive laws, and judges with authority to appeal to, the state of war once begun, continues, with a right to the innocent party to destroy the other whenever he can, until the aggressor offers peace, and desires reconciliation on such terms as may repair any wrongs he has already done, and secure the innocent for the future. . . .

Locke clearly recognizes a natural right of self-defense, even though “the aggressor . . . be in society and a fellow subject.”  Accordingly, the chief questions that remain under Locke are:

  • (1) Who should or must enforce the right of self-defense—God or civil courts or both?
  • (2) What is the scope of the natural right of self-defense?

On the second issue, it is unclear how Locke’s views would apply to stand-your-ground laws.  Assume first that the courts are available, the victim can identify the aggressor, and the victim can retreat with complete safety.  Here I think the lack of necessity would point to an absence of a Lockean natural right of self-defense and a duty to preserve life, not take it.  So I don’t think that this strand of stand-your-ground laws is either required or permitted by Locke’s view of self-defense.

Now assume instead that the courts are fair and available, but the victim can’t bring the aggressor to justice because he doesn’t know his identity and thinks it highly unlikely that the aggressor can be caught. I frankly don’t know whether Locke’s version of self-defense would protect a failure to retreat in complete safety, because here the courts could not effectively judge and redress this wrong. But the inadequacy of the courts to settle this dispute might well justify Lockean self-defense.

(I leave aside Locke’s justification of using deadly force for robbery that does not explicitly threaten death.)

* * *

My bottom line is that I am unpersuaded that David French is right that Locke’s view of self-defense would support stand-your-ground laws as broad as those in force in many states, though I could see where his views might support some aspects of them where the state wouldn’t have a realistic chance of catching the aggressor.

Yet DeBrabander’s and Kohen’s attacks on David French are so inadequate on issues on which they should be expert that it is difficult to tell whether I am missing something (which is entirely possible) or whether they really don’t know that under Locke, people retain the natural right of self-defense even within a basically functioning society.

UPDATE (10:10pm ET, Friday): Professor Kohen has responded at his own blog.

[NOTE: The spelling of Professor Kohen's name was corrected after posting.]

Jim Lindgren is a law professor at Northwestern University, with a BA from Yale and a JD and a PhD in (quantitative) sociology from the University of Chicago. He is a cofounder of the Section on Scholarship of the Association of American Law Schools and a former chair of its Section on Social Science and the Law.
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Will Baude | February 26