The scholars of John Locke's political philosophy have recognized that what Locke calls "the executive power of the law of nature"--the natural right to punish those who violate the law of nature--is crucial for his teaching because the law of nature that supports the equal liberty of all individuals would be "in vain" if transgressions of that law were not punished, and because this natural right to punish is "the true original of political power" (ST, 7, 89). But while they recognize the expression of this natural right in the forcible punishment of those who inflict physical harm, the Locke scholars do not recognize the second form of this natural right--the reputational punishment of conduct that is offensive to society although not physically harmful (see, for example, Simmons 1991, 1992; Ward 2010; Zuckert 1994). Nor do they recognize that both forms of natural punishment are seen in hunter-gatherer bands prior to the establishment of government, which confirms Locke's claim that "in the beginning all the World was America," because the foraging life of the American Indians "is still a Pattern of the First Ages in Asia and Europe," which is a state of nature (ST 49, 102, 105, 108).
In his Second Treatise, Locke concentrates on forcible punishment, and that's what has held the attention of scholars; but they do not recognize that in the Essay Concerning Human Understanding, Locke identifies reputational punishment as a second kind of natural punishment.
In the Essay, Locke says that in all of their actions, all human beings are moved to satisfy their natural human desires, and while there are many natural desires, they are all part of the human pursuit of happiness; and human happiness comes from pleasure, while human misery comes from pain. Human beings differ, however, in how they rank their natural human desires. So, for example, some human beings pursue sensual pleasures above all, while others pursue intellectual understanding as the greatest pleasure. So while there is no single summum bonum for all, there is a single summum bonum for each person (ECHU, 2.21.31-73).
Thus, good and evil are nothing but pleasure and pain. But moral good and evil requires something more: it is "the conformity or disagreement of our voluntary actions to some law, whereby good or evil is drawn on us, from the will and power of the lawmaker; which good or evil, pleasure or pain, attending our observance or breach of the law by the decree of the law-maker, is what we call reward and punishment" (2.28.5).
There are three kinds of moral laws coming from three kinds of lawmakers with three kinds of rewards and punishments. The divine law is made by God and enforced by His rewards and punishments in the afterlife, and this is "the only true touchstone of moral rectitude." There are two kinds of human laws: the civil law and the law of reputation.
The civil law is made by government and enforced by governmental coercive force that punishes those who disobey:
"This law nobody overlooks: the rewards and punishments that enforce it being ready at hand, and suitable to the power that makes it: which is the force of the Commonwealth, engaged to protect the lives, liberties, and possessions of those who live according to its laws, and has power to take away life, liberty, or goods, from him who disobeys; which is the punishment of offences committed against the law" (2.28.9).
This summarizes much of what Locke says in the Second Treatise about how people in the state of nature consent to the establishment of government to secure their natural rights.
Finally, "the law of opinion or reputation" is that by which social opinion calls whatever is socially praised virtuous and whatever is social blamed vicious, and those who disobey this law are punished with a bad reputation. And just as the people have consented to the civil law, according to Locke, they have also consented to this law of reputation:
". . . the measure of what is everywhere called and esteemed virtue and vice is this approbation or dislike, praise or blame, which, by a secret and tacit consent, establishes itself in the several societies, tribes, and clubs of men in the world: whereby several actions come to find credit or disgrace amongst them, according to the judgment, maxims, or fashion of that place. For, though men uniting into politic societies, have resigned up to the public the disposing of all their force, so that they cannot employ it against any fellow-citizens any further than the law of the country directs: yet they retain still the power of thinking well or ill, approving or disapproving of the actions of those whom they live amongst, and converse with: and by this approbation and dislike they establish amongst themselves what they will call virtue and vice" (2.28.10).
In this way, Locke clearly implies that in the state of nature, the natural right to punish has two levels: there is a natural right to punish with physical force those who inflict physical harm on others, and the people must give up this right to public institutions with the establishment of government and civil law; but there is also a natural right to punish with social disapproval those who have engaged in blameworthy conduct, and this right is retained by the people even after the establishment of government and civil law.
In Some Thoughts Concerning Education, Locke advised parents that they should use this law of reputation--social praise and blame--as the most powerful means for shaping the moral character of their children. This was "the great secret of education" for cultivating the moral and intellectual virtues in children, and particularly for instilling "civility"--a "respect and good will to all people" (secs. 56-65).
Locke observed that this law of reputation introduced some cultural variability in moral standards--"and so in different societies, virtues and vices were changed." This provoked some of his readers to criticize him as a moral relativist who denied the eternal natural law. And yet he thought there was some universal regularity in these reputational standards of morality. He saw that "as to the main, they for the most part kept the same everywhere." They "in a great measure, everywhere correspond with the unchangeable rule of right and wrong." So that "even in the corruption of manners, the true boundaries of the law of nature, which ought to be the rule of virtue and vice, were pretty well preferred" (ECHU, 2.28.11).
Insofar as Locke saw this moral law of reputation as compatible with individual liberty, he would have agreed with Friedrich Hayek's criticism of John Stuart Mill's "no-harm principle" in On Liberty. Mill wrote:
"The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any f their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. . . . The only part of the conduct of anyone for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign" (1956, 13).
Following this principle, Mill condemned "social tyranny" as "tyranny of the prevailing opinion and feeling" and the "despotism of custom."
Hayek disagreed: "the fact that conduct within the private sphere is not a proper object for coercive action by the state does not necessarily mean that in a free society such conduct should also be exempt from the pressure of opinion or disapproval. . . . John Stuart Mill directed his heaviest attack against such 'moral coercion.' . . . it probably makes for greater clarity not to represent as coercion the pressure that public approval or disapproval exerts to secure obedience to moral rules and conventions" (1960, 146). In a free society, Hayek believed, society but not the state enforces moral virtue. The enforcement of moral rules through the social pressure of public approval or disapproval should not be seen as coercion (1960, 62-63, 402, 451).
When Patrick Deneen (in Why Liberalism Failed) scorns Locke's liberalism for its "atomistic individualism" and its failure to cultivate the moral virtues of social life, he says nothing about this--about how Locke insisted on the importance of promoting social virtue through social praise and blame.
What Locke calls the law of reputation is what evolutionary theorists of cooperation--beginning with Richard Alexander (1987)--have called "indirect reciprocity." In direct reciprocity, we reciprocate the cooperation or defection of others: if you scratch my back, I will scratch yours (Trivers 1971). In indirect reciprocity, we reciprocate someone's reputation for cooperation or defection: if you have the reputation for scratching other people's backs, I will scratch yours. In large societies, where we need to interact with many people who are not our kin, and with whom we have not had any previous interactions, we rely on their reputations to decide whether we can trust them; and our social happiness depends on our maintaining our own good reputations for being virtuous people.
Locke's claim that in the state of nature, people enforce the natural law of equal liberty through both forcible and reputational punishment can be supported by the ethnographic studies of foraging bands and other people living without formal governmental institutions. And the fact that these two forms of natural punishment are manifest in foraging societies, which was the environment of our evolutionary adaptation, suggests that this is part of our evolved human nature.
For example, Polly Wiessner, in her studies of the the !Kung San of Southern Africa, has said that among them, "all adult members of the society are autonomous equals who cannot command, bully, coerce, or indebt others." There is a "strong egalitarian norm that no adult can tell another what to do." "All people as autonomous individuals are expected to stand up for their rights," and so everyone has the right to enforce the social norms of the group by punishing those who violate them" (2005, 117, 126, 135).
Punishment can take many forms--from mild to severe--mocking, mild criticism, harsh criticism, ostracism from the group, or violent acts. Although peace was usually maintained, there was always an underlying threat of violence, and sometimes disputes escalated into general brawls. Although everyone is free to punish transgressors, those who are judged to be too critical or harsh suffer from their bad reputation.
Among foragers, the punishment for the most violent acts--such as murder--can be execution (Balikci 1989; Boehm 2012; Hoebel 1955). Typically, a murderer is killed by the victim's family taking revenge. A serial killer (two or more victims) can be punished by collective action: usually the community orders a relative of the killer to kill him; less often, there is a collective attack on the killer.
Sometimes foragers have been identified by anthropologists as utterly peaceful--even called the "harmless people"--but this is because usually by the time anthropologists have contact with them, the foragers have come under state control, which has a pacifying effect, just as Hobbes and Locke said: because the state of nature easily becomes a state of war, people will benefit from having governments to enforce laws collectively that dampen their tendency to violent conflict. Once anthropologists probe into the distant history of foragers, they discover a history of extreme violence that was reduced once they came under governmental authority (Boehm 2012; Lee 1979, 370-400). The most violent society ever studied by anthropologists are the Waorani, living in the remote Ecuadorian rainforest, among whom for some time about 60% of all deaths were homicides. The Waorani themselves wanted to end the killing, and they were happy when they came under a governmental authority that reduced the killing (Robarchek and Robarchek 2008).
Individuals living under the laws of a centralized state have given up their natural right to the forcible punishment of violent assaults, although they might still exercise their right of killing in self-defense when the officers of the state are not immediately available to protect them. But even when they live under a government, all individuals still have the natural right to inflict reputational punishment on those who offend them, just as Locke said.
In his Descent of Man, Darwin explained the evolution of the natural moral sense as rooted in the evolved social instincts of human nature that make human beings intensely attentive to the approbation or disapprobation of people in their social groups, so that they want to have the good reputation for displaying praiseworthy virtues and avoiding blameworthy vices (2004, 120-151). Evolutionary anthropologists studying the ethnographic record have confirmed this by finding that there are universal social norms of moral good and evil enforced in societies around the world and throughout history by reputational punishment--norms of social cooperation that include helping kin, loyalty to one's group, bravery, generosity, fairness in social exchange, and respecting property rights (Curray, Mullins, and Whitehouse 2019; Westermarck 1906).
The most pervasive means of reputational punishment, deeply rooted in our evolutionary history beginning with our hunter-gatherer ancestors, is gossip (Boehm 2012; Feinberg et al. 2012; Feiberg et al. 2014; Hoebel 1955; Raihani and Bshary 2019; Wiessner 2005; Wu et al. 2016a, 2016b). Through gossip, we ridicule, shame, or denigrate people for their bad behavior and thus punish them by giving them a bad reputation that imposes social costs on them. Empirical studies have shown that most human speaking time--perhaps 65% across cultures--is devoted to gossip (Dunbar 2004).
In all of these ways, research in Darwinian anthropology indicates that Locke was correct in arguing that there is a natural right to enforce the law of nature through forcible and reputational punishment.
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