Friday, January 01, 2016

Locke's Lab for DIY Political Science Experiments - The Rule of Law in Progress or Regress pt-6b

Step Two - The American Locke on Liberty
America in the 17th & 18th centuries was a living political 'State of Nature' laboratory, perfect for tweaking old formulas, making observations, and serving as a state of the art lab for carrying out revolutionary real life Do It Yourself Political Science experiments. The philosopher of political science who was the keenest observer, and who contributed the most, and the most sound theories, for unlocking the liberty that America was formed from, was John Locke (1632-1704), who, as a child, lived through the violence of the English Civil War.

Few issues were actually resolved during that conflict, and so as the fatigue of it passed, the political climate began heating up once again, especially with questions surrounding ideas of royal power and the still developing ideas of liberty, even as the Colonies in America were being established abroad. The period that Locke grew up in was rife with political turmoil, executions, persecutions and exiles, which would eventually be resolved with the 'Glorious Revolution', and see England switching out its own monarch, for a pair more open to the idea of putting even the King's power under that of the Law. But up until that point, Royal Power ran rampant in England and those who questioned it, would become the painful focus of it. Locke, together with his compatriot and employer, the Earl of Shaftesbury, felt the sharp focus of royal power because neither one of them believed in the 'divine right of kings', and worse than not believing in it, and worse even than daring to say so, Locke explained why it wasn't so, and that, the exercise of Freedom of Speech, is something which those employing the Doppelganger's Rule of Rules cannot tolerate, and will soon seek to resolve their discomfort with orders of 'Off with their heads!' - and so off Locke and Shaftesbury went, into exile in Holland.

During that six or so years of exile, Locke devoted serious consideration to practical political philosophy (the 1st of the the three steps which we reviewed in the previous post), Richard Hooker's "Of the laws of ecclesiastical polity" found its way into his writing, and he could not have missed the strange new political developments coming from the colonies in America, particularly the likes of Thomas Hooker (possibly related to Richard Hooker) and his Fundamental Orders of Connecticut, with
"...the first written constitution known to history that created a government..."
, establishing representative government with the freedom to think and worship as a person saw fit, without interference from the government. Such ideas percolated for years in Locke's brain, and were refined into principled form, and, helping to give much weight to the adage that 'The Pen is mightier than the sword', would help contribute to that coming revolution, as well as our own, decades afterwards.

The primary work that John Locke ultimately produced, "The Two Treatises of Civil Government [1689]" (published anonymously), was the first to propose and give clear expression to the concept of Individual Rights and the critical importance of Property Rights to them, and on top of that, in his view, upholding those rights were the primary purpose of Govt and its laws (the 2nd key step pointed out in the previous post, and the focus of this one). The linking of those three together: law, rights and property; brought the highest ideas of Law into direct contact with nearly every concern of every person living under it, but now as a benign a promise to defend their actions, rather than as a malignant limitation upon those actions they'd be permitted to take (the 3rd key step pointed out in the previous post). It also established a palpable link from each person's daily concerns to the highest ideals of Western Thought. Locke's ideas found recognition and appreciation in England, but it was in America that they were taken most seriously and were given the most direct application and formal expression and expectations of (see the 1733 Freedom of the Press case of Peter Zenger).

Life in the American colonies had little or no patience for niceties without substance, in thought or deed. It was a place where the matter of a couple careless steps off the beaten path would put you face to face with raw nature and/or hostile peoples, conditions which served to clarify the importance
and the relevance of acknowledging and respecting the reality of matters around you. The colonial experience was not conducive to issues being decided at a distance - without consideration of the facts at hand, which could be known only to those persons actually dealing with them, such distant decisions were indistinguishable from stupidity, and whether issued by rulings of colonial governors, or the British Crown, they were seen as being not only wasteful, but destructive and even deadly.

IOW, your thoughts had to hang together and hold up in the face of an often harsh reality. Thinking in principles was required, your thoughts had to be integrated, ordered, whole - neither putting the cart before the horse, nor closing the barn door after the horse had gone, were going to survive reality (or community mockery!), and that applied just as much in nature and wood craft, as in designing new stoves or forming public lending libraries, and not just in material pursuits, a person's trustworthiness and ethics was of no less importance - false words could lead to unwise actions and in that environment, get you killed. Ideas, words and actions had clear and tangible importance, as was abiding with civility in disagreements and adjudicating disputes with your fellows, all of which made the importance of not just law, but Good Law, clear to all concerned.

Perhaps the reason the American experiment worked, unlike the numerous and bloody French attempts, was because the ideas it was founded upon were rooted in the reality experienced by all, rather than on the pretty notions that some distant thinker wished were true, and which those with power sought to re-form society around as if they were true.

Progressing from Step One, up to Step Two...
Locke, in his pursuit of wisdom, took into account the history and ideas of the West on up through his own experience of current events. He saw the connections between what was required to live a life, and the benefits of living it in liberty, while in society with others, and he had first hand knowledge of how oppressive power could make developing a life worth living, an impossibility. Locke showed, in the first consistent manner, the concept of Individual Rights, as extensions of Natural Law - what was required by the nature of being human - he knew the necessity of having the freedom to think and worship as a person saw fit, and even more importantly he understood that "the rigour of laws and force of penalties are not capable to convince and change men's minds". Locke was able to connect the dots that had previously seemed unrelated, and saw the critical importance of Property Rights to enabling and preserving liberty, under Law. What Locke succeeded in doing, was putting philosophical teeth into the famous observation of English Jurist Edward Coke, that "Every man's home is his castle".

Again, the Colonists had a visceral understanding of Locke as no one else did or could have, that rights were born of the fact of being, that men required the liberty to take those actions which the nature of surviving nature, requires of a person to take - if he wishes to be more than an animal, that is. The essential actions required by the nature of being human for men to be at liberty to take, boil down to those of:
thinking, acting, speaking, associating, retaining the fruits which those actions produced, and a recourse to arms to defend them all if need be
It is through the recognition of Property Rights, that those intangible requirements can be physically secured to your life. Any person or group attempting to deal with you by the persuasion of force, rather than with the force of persuasion, can only do so by severing that connection between your thoughts & actions and the physical results of them, and in doing so, they are attempting to exert arbitrary power over you, and so put themselves into a state of war with you, as Locke said, you
"...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 common-law 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."
That deeper conception of Individual Rights, and their necessary anchor in law through Property, showed why Coke's idea of 'a man's house is his castle' was not only necessary, but would have been made meaningless if some were to be allowed the power to pass through its walls and to take what was wanted at the whim and desire of either a criminal, a Govt official or by popular sentiment. That resonated in the colonies especially, as they lacked the layers of social structure and the bureaucracies of England to obscure, shuffle or delay the consequences of such bad laws. To the colonists the consequences were clear: the infringement or deprivation of property could easily mean misery, injury or even death. That understanding of the importance of Property to Rights, was seen as the means of enabling peoples with very different interests, to safely harness power through a defined and limited government, for the benefit and protection of all - without favoring one group over another.

As a later essay by James Madison, 'Property' illustrates, the recognition of Property was the means of securing the liberty of each person:
"...In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.

In the former sense, a man's land, or merchandize, or money is called his property.
In the latter sense, a man has a property in his opinions and the free communication of them.
He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.
He has a property very dear to him in the safety and liberty of his person.
He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.

Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions.

Where there is an excess of liberty, the effect is the same, tho' from an opposite cause.

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is ajust government, which impartially secures to every man, whatever is his own....

...That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest. A magistrate issuing his warrants to a press gang, would be in his proper functions in Turkey or Indostan, under appellations proverbial of the most compleat despotism. ...."
The 'common expression of the American mind' on the subject of Property, went far beyond that of mere possessions, which are what you forcibly hold onto. They recognized that Property is more than a thing, it is what is justifiably yours, not by force of possession alone, but through the right actions inherent to the reality of living life as human beings, which a civilized people secured by Law.

Near the close of that essay, Madison took special note of what was incompatible with American thoughts on government - a note that Bernie Sanders would do well to consider more carefully in his dreams of greedy benevolence - that:
"If there be a government then which prides itself in maintaining the inviolability of property; which provides that none shall be taken directly even for public use without indemnification to the owner, and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties; nay more, which indirectly violates their property, in their actual possessions, in the labor that acquires their daily subsistence, and in the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the influence [inference?] will have been anticipated, that such a government is not a pattern for the United States."
Seeing how that applies everywhere in our daily lives, is Step Three, in tomorrow's post.

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