John Locke on stand-your-ground versus self-defense laws

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John Locke

What would John Locke say about stand-your-ground self-defense law?

Before we discuss how Locke might answer this question, we should get clear on the meaning of  “self-defense law”, “stand-your-ground law,” and “duty to retreat.”

There are two types of self-defense laws. Traditional self-defense laws give persons who are under threat of personal harm the right to defend themselves from the threat by responding with deadly force, provided that the threatened person has no way to retreat. 

For example, Esther approaches Conrad, pushes him against a wall, displays a sharp knife, and demands that Conrad hand over his wallet.  But Esther does not notice that Conrad is carrying a gun.  He quickly pulls the gun out of his pocket, and shoots Esther. 

It is lawful for Conrad to do this. This is so, even if Esther had not hurt Conrad, and even if she never said that she would kill or even hurt him if he does not do her bidding.  The knife she is waving in Conrad’s face is a sufficient threat of personal harm and Conrad had no reasonable way to retreat. 

It is the “duty to retreat” provision that marks the difference between traditional and stand-your-ground self-defense legislation.  In traditional self-defense law, a person who is under an imminent threat of personal harm must retreat from the threat if this is reasonably possible before responding with deadly force. “Nearly half of U.S. states adhere to this standard, including New York, Iowa, and Hawaii.” (Find Law).  For example, if Esther is in a wheelchair waving her knife at Conrad who is standing in front of the chair, and Conrad can move away, then he has a duty to do so.  If he takes out his gun and kills Esther, he cannot plead self-defense.

The second type of self-defense laws remove the duty to retreat provision.  These laws establish a right to stand one's ground when one is confronted with a threat of personal harm.  There is no legal duty to turn and run.  Conrad can legally “stand his ground” in front of Esther's wheelchair, take out his gun, shoot and kill Esther before she can get close enough to stab him.

 

What would John Locke add to this debate?  What version of self-defense law would he support?  Traditional or stand-your-ground? 

In his discussion of the state of war in Second Treatise of Government,  Locke argues that persons who are enslaved  have the right to resist. The resistance might involve killing the person who enslaves them. When Locke uses the words “enslaving” he means “getting another person into his power without that person’s consent” (§17). If someone attempts to make me a slave, then he "would use me as he pleased," even killing me if this is what he pleases to do. This act of enslaving me, therefore, puts himself into a state of war with me: “He that, in the state of nature, would take away the freedom that belongs to any one in that state, must necessarily be supposed to have a design to take away everything else, that freedom being the foundation of all the rest. “(§17).

Locke then applies this logic to other situations in which someone tries to take away his freedom. Locke’s most famous example is that of a thief who has him in his power. (The word “thief” in today's vernacular means “robber” or “armed robber”):

 

“[It is] lawful for a man to kill a thief, who has not in the least hurt him, nor declared any design upon his life… Using force, where he has no right, to get me into his power, let his pretense be what it will, I have no reason to suppose, that he, who would take away my liberty, would not, when he had me in his power, take away everything else. And therefore, it 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.” (§18)

 

Let’s return to the two self-defense scenarios and apply Locke’s criteria for justifiable killing.  In the first case (traditional self-defense), it is lawful for Conrad to kill Esther because she “has him in her power.”  For all he knows, Esther might kill him after he has given her his wallet.  It is this fact that makes it justifiable for Conrad to go for his gun and kill Esther before she kills him.

In the second scenario (stand-your-ground), Esther is in a wheelchair, approaching Conard, waving her knife, and shouting death threats. But Esther does not have Conrad in her power. Conrad is not her temporary slave.  Her death threats are empty because Conrad can easily retreat from the scene.

This fact (lack of power) shows a significant difference between stand-your-ground and traditional self-defense law.  Conrad has a duty to retreat because Esther lacks the power to take away his liberty.  Although Locke does not mention retreating as a duty, he would object to our killing those who would like to take away our liberty but have no power to do so. 

To summarize, stand-your-ground laws give the victim more latitude to kill a robber than ordinary self-defense laws. The difference between the two is that under traditional self-defense law you (the defendant) must show that you could not have retreated from the situation you perceived as dangerous. You have a duty to retreat when this is reasonably possible.

But under stand-your-ground legislation there is no such duty. Even if you see a way out of the situation, you are justified in either disabling or killing the person you believe is threatening you.

If Locke was here to answer our question,  he would probably say that it all depends on what it means to say "get me into his power." If I see a safe way to escape, then I am no longer in the power of the armed robber, and accordingly, it would not be "lawful" for me to kill the robber. If stand-your-ground laws would justify killing a person who threatens me but does not have me in their power, then Locke would not endorse this legislation. People who kill others who have threatened them but do not have them in their power have crossed the line between self-defense and homicide.

[for more on John Locke, see Laurence Houlgate, Understanding John Locke: The Smart Student's Guide to Second Treatise of Government  Click on the Locke book cover image below the free book offer]

Locke's Second Law of Nature

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Locke's Second Law of Nature

[This is the second in a series of posts for philosophy students who are doing their first reading of John Locke's Second Treatise of Government.  The following passages are taken from my book Understanding John Locke: The Smart Student's Guide to Second Treatise of Government.]

Here is the paragraph in which Locke wrote the famous words that many years later deeply influenced the political ideas of George Mason, John Adams, Thomas Jefferson and other revolutionary British colonists in America:

The state of nature has a law of nature to govern it, which obliges everyone: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions (§6).

The obligations listed by Locke are all negative, that is they tell us what we ought not to do, not what we ought to do.  We ought to refrain from harming others, but at the same time we are not told that we have obligations to help others in achieving a better life, better health, more liberty, or more possessions.

However, in the lengthy sentence that concludes §6 of Second Treatise, Locke writes these words:

Everyone, as he is bound to preserve himself, and not to quit his station willfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.

Locke here tells us that not only that we may not take away or impair the life, liberty, health, limb, and possessions of others, but also that we must protect and provide what “tends to the preservation” of these valuable freedoms for all persons.  This brief passage is not a mere repetition of the first iteration of the law of nature.  Locke repeats the negative duties to not harm another person’s life, liberty, health and possessions, but he also adds a positive duty to do whatever we can to keep others alive, free and healthy.

This is perfectly consistent with Locke's earlier endorsement of Richard Hooker’s claims about equality and the derived natural duties of justice and charity.  Hooker wrote that the equality of men by nature is “evident in itself, and beyond all question.”  Locke comments (in §5) that this equality is “the foundation of the obligation to mutual love among men, on which he [Hooker] builds the duties they owe one another, and from whence he derives the great maxims of justice and charity”.

If we accept Hooker’s claim that all men are equal, then any duty that I believe is owed to me, is also a duty that I owe to you.  The word “equality” implies equality of moral duties.  If I say, for example, that you have a duty to come to my aid in times of distress, then I imply that everyone else has the same duty under the same circumstances: 

For seeing those things which are equal, must needs all have one measure; if I cannot but wish to receive good, even as much at every man’s hands as any man can wish unto his own soul, how should I look to have any part of my desire herein satisfied, unless myself be careful to satisfy the like desire?  (Hooker, Eccl. Pol. Lib. 1)

 Locke points out that Hooker later derives “the great maxims of justice and charity” from the  concept of equality.   This ringing endorsement of Hooker gives us a new interpretation of  Locke’s  law of nature.  There are two laws of nature.  The first law tells us that we have a set of negative duties: not to harm one another in our life, liberty, health or possessions.  The second law says that the basic obligations of equality and justice implies that we also have a set of positive duties to do whatever we can to keep others alive, free and healthy.

The “community” to which Locke says we all belong in the state of nature is not just a group of atomic individuals in which each is surrounded by a fence with a sign announcing “Keep Out.”   We are also persons who are bound together by obligations to come to each other’s aid whenever this is needed.  Hence, the correct analogy to use in describing the relationship of persons in the state of nature is not to a group of individuals whose only relationship to one another is that they share the same set of negative rights. It is to a family, a group of friends, villagers, neighbors and other small communities of persons bound together by positive rights and duties.

Locke's "labor argument" for private property

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John Locke

[This is the first of a series of posts for beginning philosophy students who are doing their first reading of John Locke's Second Treatise of Government:  The following commentary is taken from my book Understanding John Locke: The Smart Student's Guide to Second Treatise of Government.]

In Second Treatise of Government, John Locke asks this question: If the right to the private possession of an edible thing is a necessary condition for my nourishment and preservation, then how does one acquire this right?  What can I do to make the fruit or the,] venison mine (my private property), while in the state of nature, even if I do not have the consent of others to do this?

Locke’s first answer to this question is provided as the conclusion of a deceptively simple argument, quoted here:

Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this nobody has any right to but himself.  The labor of his body, and the work of his hands, we may say are properly his.  Whatsoever then he removes out of the state that nature hath provide, and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property (§27).

Locke scholars call this “the labor argument for private property.”  Here are the steps Locke takes to get to his conclusion.

1. Everyone has property in their own person (nobody else has a right to one’s own person).

2. If everyone has property in their own person, then they have property in the labor of their body and the work of their hands (nobody else has a right to the labor of a person’s body or the work of their hands).

3. When anyone removes something that nature has left it in, then they mix their labor with that thing, or join their labor to it.

4. If someone mixes or joins their labor to a thing that nature has left it in, then they make it their property.

5. Therefore, anyone who removes something that nature has left it in, has property in that thing.

To illustrate Locke’s argument, suppose that you reside in the state of nature with ninety-nine other men and women. You and they have common ownership of all the land, animals, edible fruit, vegetables and forests.  You decide to build a shelter, and to that end, you go into the forest and cut down several trees.  The act of cutting down a tree with an axe or saw is an act of work or labor, which act is as much your property as is your body.  By cutting down the trees, you have “mixed your labor with” or “joined your labor to” the trees.  Hence, the trees are, from that moment, your property, to do with as you wish, and from which you can exclude everyone else from possessing or using. If others want trees to build their own dwellings, then they cannot justifiably take the trees that you removed from the commons by your own labor.

 Locke restates the argument in the concluding sentence of §27:

It being by him removed from the common state that nature placed it in, it hath by this labor something annexed to it, that excludes the common right of other men: for this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to…

The only difference between this and the previous statement of the argument is that Locke uses the additional metaphor of “annexing” one’s labor to that which is removed from the commons.  It is never made clear how these metaphors help us get from “She cut down the tree with an axe” to “The tree is her private property.”  If “cutting down the tree” does not get us to the conclusion (“She owns the tree”) then how does “She mixed her labor with the tree” get us there?  To put it another way, using the metaphors annexing, mixing or joining appears to do no more to prove how the tree becomes one’s private property than cutting down the tree proves this.

Finally, Locke adds an important proviso to the labor argument when he states that the right to what a man joins his labor to is limited to there being “enough, and as good, left in common for others.”  If you cut down trees for your shelter, then you must leave enough healthy trees in the forest for others to build their shelters.  You have no right to either cut down all the trees in the forest or leave only unhealthy trees.

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