Justice with Michael Sandel Episode 4

Episode 4
Part I - This Land Is My Land

Today, we turn to John Locke.

On the face of it, Locke is a powerful ally of the libertarian. First, he believes, as libertarians today maintain, that there are certain fundamental individual rights that are so important that no government, even a representative government, even a democratically elected government, can override them. Not only that, he believes that those fundamental rights include a natural right to life, liberty, and property, and furthermore he argues that the right to property is not just the creation of government or of law.The right to property is a natural right in the sense that it is pre-political. It is a right that attaches to individuals as human beings, even before government comes on the scene, even before parliaments and legislatures enact laws to define rights and to enforce them.

Locke and Natural Rights
Locke says in order to think about what it means to have a natural right, we have to imagine the way things are before government, before law, and that's what Locke means by the state of nature. He says the state of nature is a state of liberty. Human beings are free and equal beings. There is no natural hierarchy. It's not the case that some people are born to be kings and others are born to be serfs. We are free and equal in the state of nature and yet, he makes the point that there is a difference between a state of liberty and a state of license. And the reason is that even in the state of nature, there is a kind of law. It's not the kind of law that legislatures enact. It's a law of nature. And this law of nature constrains what we can do even though we are free, even though we are in the state of nature.

Well what are the constraints? The only constraint given by the law of nature is that the rights we have, the natural rights we have we can't give up nor can we take them from somebody else. Under the law of nature, I'm not free to take somebody else's life or liberty or property, nor am I free to take my own life or liberty or property. Even though I am free, I'm not free to violate the law of nature. I'm not free to take my own life or to sell my self into slavery or to give to somebody else arbitrary absolute power over me.

So where does this constraint, you may think it's a fairly minimal constraint, but where does it come from? Well, Locke tells us where it comes from and he gives two answers. Here is the first answer."For men, being all the workmanship of one omnipotent, and infinitely wise maker," namely God, "they are his property, whose workmanship they are, made to last during his, not one another's pleasure." So one answer to the question is why can't I give up my natural rights to life, liberty, and property is well, they're not, strictly speaking, yours. After all, you are the creature of God. God has a bigger property right in us, a prior property right.

Now, you might say that's an unsatisfying, unconvincing answer, at least for those who don't believe in God. What did Locke have to say to them? Well, here is where Locke appeals to the idea of reason and this is the idea, that if we properly reflect on what it means to be free, we will be led to the conclusion that freedom can't just be a matter of doing whatever we want. I think this is what Locke means when he says, "The state of nature has a law of nature to govern it which obliges everyone: and reason, which is that law, teaches mankind who will but consult it that all being equal and independent, no one ought to harm another in his life, health, liberty, or possessions."

This leads to a puzzling paradoxical feature of Locke's account of rights. Familiar in one sense but strange in another. It's the idea that our natural rights are unalienable. What does "unalienable" mean? It's not for us to alienate them or to give them up, to give them away, to trade them away, to sell them. Consider an airline ticket. Airline tickets are nontransferable. Or tickets to the Patriots or to the Red Sox. Nontransferable tickets are unalienable. I own them in the limited sense that I can use them for myself, but I can't trade them away. So in one sense, an unalienable right, a nontransferable right makes something I own less fully mine.

But in another sense of unalienable rights, especially where we're thinking about life, liberty, and property, or a right to be unalienable makes it more deeply, more profoundly mine, and that's Locke's sense of unalienable.

We see it in the American Declaration of Independence. Thomas Jefferson drew on this idea of Locke.
Unalienable rights to life, liberty, and as Jefferson amended Locke, to the pursuit of happiness.  Unalienable rights. Rights that are so essentially mine that even I can't trade them away or give them up. So these are the rights we have in the state of nature before there is any government. In the case of life and liberty, I can't take my own life. I can't sell myself into slavery any more than I can take somebody else's life or take someone else as a slave by force.

The Right to Property
But how does that work in the case of property? Because it's essential to Locke's case that private property can arise even before there is any government. How can there be a right to private property even before there is any government? Locke's famous answer comes in Section 27."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." So he moves, as the libertarians later would move, from the idea that we own ourselves, that we have property in our persons to the closely connected idea that we own our own labor. And from that to the further claim that whatever we mix our labor with that is un-owned becomes our property. "Whatever he removes out of the state that nature has provided, and left it in, he has mixed his labor with, and joined it to something that is his own, and thereby makes it his property." Why? Because the labor is the unquestionable property of the laborer and therefore, no one but the laborer can have a right to what is joined to or mixed with his labor.

And then he adds this important provision, "at least where there is enough, and as good left in common for others." But we not only acquire our property in the fruits of the earth, in the deer that we hunt, in the fish that we catch but also if we till and plow and enclose the land and grow potatoes, we own not only the potatoes but the land, the earth. "As much land as a man tills, plants, improves, cultivates and can use the product of, so much is his property.

Locke & The Libertarians
So the idea that rights are unalienable seems to distance Locke from the libertarian. Libertarian wants to say we have an absolute property right in ourselves and therefore, we can do with ourselves whatever we want. Locke is not a sturdy ally for that view...but when it comes to Locke's account of private property, he begins to look again like a pretty good ally because his argument for private property begins with the idea that we are the proprietors of our own person and therefore, of our labor, and therefore, of the fruits of our labor, including not only the things we gather and hunt in the state of nature but also we acquire our property right in the land that we enclose and cultivate and improve.

Property Rights: Respecting Patents
There are some examples that can bring out the moral intuition that our labor can take something that is unowned and make it ours, though sometimes, there are disputes about this.

There is a debate among rich countries and developing countries about trade-related intellectual property rights. It came to a head recently over drug patent laws. Western countries, and especially the United States say, "We have a big pharmaceutical industry that develops new drugs. We want all countries in the world to agree to respect the patents."


Then, there came along the AIDS crisis in South Africa, and the American AIDS drugs were hugely expensive, far more than could be afforded by most Africans. So the South African government said, "We are going to begin to buy a generic version of the AIDS antiretroviral drug at a tiny fraction of the cost because we can find an Indian manufacturing company that figures out how the thing is made and produces it, and for a tiny fraction of the cost, we can save lives if we don't respect that patent." And then the American government said, "No, here is a company that invested research and created this drug. You can't just start mass producing these drugs without paying a licensing fee."

And so there was a dispute and the pharmaceutical company sued the South African government to try to prevent their buying the cheap generic, as they saw it, pirated version of an AIDS drug. And eventually, the pharmaceutical industry gave in and said, "All right, you can do that." But this dispute about what the rules of property should be, of intellectual property of drug patenting, in a way, is the last frontier of the state of nature because among nations where there is no uniform law of patent rights and property rights, it's up for grabs until, by some act of consent, some international agreement, people enter into some settled rules.


Student Debate/Discussion
What about Locke's account of private property and how it can arise before government and before law comes on the scene? Is it successful? How many think it's pretty persuasive?... All right, let's hear from some critics. What is wrong with Locke's account of how private property can arise without consent?

Rochelle: Yes, I think it justifies European cultural norms as far as when you look at how Native Americans may not have cultivated American land, but by their arrival in the Americas, that contributed to the development of America, which wouldn't have otherwise necessarily happened then or by that specific group.

Dr. Sandel: So you think that this is a defense, this defense of private property in land...

Rochelle: Yes, because it complicates original acquisition if you only cite the arrival of foreigners that cultivated the land.

Dr. Sandel: I see. And what's your name?- Rochelle. Rochelle says this account of how property arises would fit what was going on in North America during the time of the European settlement. Do you think, Rochelle, that it's a way of defending the appropriation of the land?

Rochelle: Indeed, because I mean, he is also justifying the glorious revolutions. I don't think it's inconceivable that he is also justifying colonization as well.

Dr. Sandel: Well, that's an interesting historical suggestion and I think there is a lot to be said for it. What do you think of the validity of his argument though? Because if you are right that this would justify the taking of land in North America from Native Americans who didn't enclose it, if it's a good argument, then Locke's given us a justification for that. If it's a bad argument, then Locke's given us a mere rationalization that isn't morally defensible.

Rochelle: I'm leaning to the second one.

Dr. Sandel: All right, well, then, let's hear if there is a defender of Locke's account of private property, and it would be interesting if they could address Rochelle's worry that this is just a way of defending the appropriation of land by the American colonists from the Native Americans who didn't enclose it. Is there someone who will defend Locke on that point? Are you going to defend Locke?

Dan: Like, you're accusing him of justifying the European basically massacre of the Native Americans. But who says he is defending it? Maybe the European colonization isn't right. You know, maybe it's the state of war that he talked about in his Second Treatise, you know.

Dr. Sandel: So the wars between the Native Americans and the colonists, the settlers, that might have been a state of war that we can only emerge from by an agreement or an act of consent and that's what would have been required fairly to resolve...

Dan: Yes, and both sides would have had to agree to it and carry it out and everything.

Dr. Sandel: But what about when...But Dan, what about, Rochelle says this argument in Section 27 and then in 32 about appropriating land, that argument, if it's valid, would justify the settlers' appropriating that land and excluding others from it, you think that argument is a good argument?

Dan: Well, doesn't it kind of imply that the Native Americans hadn't already done that?

Dr. Sandel: Well, the Native Americans, as hunter-gatherers, didn't actually enclose land. So I think Rochelle is onto something there. What I want to -- go ahead, Dan.

Dan: At the same time, he is saying that just by picking an acorn or taking an apple or maybe killing a buffalo on a certain amount of land, that makes it yours because it's your labor and your labor would enclose that land. So by that definition, maybe they didn't have fences around little plots of land but didn't...

Dr. Sandel: They were using it...So maybe by Locke's definition, the Native Americans could have claimed a property right in the land itself...All right, good. Okay, that's good.

Dr. Sandel: One more defender of Locke. Go ahead.

Feng: Well, I mean, just to defend Locke, he does say that there are some times in which you can't take another person's land. For example, you can't acquire a land that is common property so people, in terms of the American Indians, I feel like they already have civilizations themselves and they were using land in common. So it's kind of like what an analogy to what he was talking about with like the common English property. You can't take land that everybody is sharing in common.

Dr. Sandel: Oh, that's interesting. That's interesting.

Feng: And also, you can't take land unless you make sure that there is as much land as possible left for other people to take as well. So if you're taking common, so you have to make sure that whenever you take land that there is enough left for other people to use...that's just as good as the land that you took, so...

Dr. Sandel: That's true. Locke says there has to be this right to private property in the earth is subject to the provision that there be as much and as good left for others. What's your name?

Fang: Right. I'm Feng.

Closing Statements
So Feng, in a way, agrees with Dan that maybe there is a claim within Locke's framework that could be developed on behalf of the Native Americans. Here is the further question. If the right to private property is natural, not conventional, if it's something that we acquire even before we agree to government, how does that right constrain what a legitimate government can do? In order, finally, to see whether Locke is an ally or potentially a critic of the libertarian idea of the state, we have to ask what becomes of our natural rights once we enter into society. We know that the way we enter into society is by consent, by agreement to leave the state of nature and to be governed by the majority and by a system of laws, human laws. But those human laws are only legitimate if they respect our natural rights, if they respect our unalienable rights to life, liberty, and property. No parliament, no legislature, however democratic its credentials, can legitimately violate our natural rights. This idea that no law can violate our right to life, liberty, and property would seem to support the idea of a government so limited that it would gladden the heart of the libertarian after all. But those hearts should not be so quickly gladdened because even though for Locke, the law of nature persists once government arrives, even though Locke insists on limited government, government limited by the end for which it was created, namely the preservation of property, even so, there is an important sense in which what counts as my property, what counts as respecting my life and liberty are for the government to define. That there be property, that there be respect for life and liberty is what limits government. But what counts as respecting my life and respecting my property, that is for governments to decide and to define. How can that be? Is Locke contradicting himself or is there an important distinction here? In order to answer that question, which will decide Locke's fit with the libertarian view, we need to look closely at what legitimate government looks like for Locke, and we turn to that next time.




Part II - Consenting Adults
Last time, we began to discuss Locke's state of nature, his account of private property, his theory of legitimate government, which is government based on consent and also limited government.

Natural Rights
Locke believes in certain fundamental rights that constrain what government can do, and he believes that those rights are natural rights, not rights that flow from law or from government. And so Locke's great philosophical experiment is to see if he can give an account of how there could be a right to private property without consent before government and legislators arrive on the scene to define property. That's his question. That's his claim. There is a way Locke argues to create property, not just in the things we gather and hunt, but in the land itself, provided there is enough and as good left for others.

Today, I want to turn to the question of consent, which is Locke's second big idea. Private property is one; consent is the other.

What is the work of consent? People here have been invoking the idea of consent since we began since the first week. Do you remember when we were talking about pushing the fat man off the bridge, someone said, "But he didn't agree to sacrifice himself. It would be different if he consented." Or when we were talking about the cabin boy, killing and eating the cabin boy. Some people said, "Well, if they had consented to a lottery, it would be different. Then it would be all right." So consent has come up a lot and here in John Locke, we have one of the great philosophers of consent.

Consent is an obvious familiar idea in moral and political philosophy. Locke says that legitimate government is government founded on consent and who, nowadays, would disagree with him? Sometimes, when the ideas of political philosophers are as familiar as Locke's ideas about consent, it's hard to make sense of them or at least to find them very interesting. But there are some puzzles, some strange features of Locke's account of consent as the basis of legitimate government and that's what I'd like to take up today.

The State of Nature
One way of testing the plausibility of Locke's idea of consent and also of probing some of its perplexities is to ask just what a legitimate government founded on consent can do, what are its powers according to Locke. Well, in order to answer that question, it helps to remember what the state of nature is like.

Remember, the state of nature is the condition that we decide to leave, and that's what gives rise to consent. Why not stay there? Why bother with government at all? Well, what is Locke's answer to that question? He says there are some inconveniences in the state of nature but what are those inconveniences? The main inconvenience is that everyone can enforce the law of nature. Everyone is an enforcer, or what Locke calls "the executor" of the state of nature, and he means executor literally. If someone violates the law of nature, he is an aggressor. He is beyond reason and you can punish him. And you don't have to be too careful or fine about gradations of punishment in the state of nature. You can kill him. You can certainly kill someone who comes after you, who tries to murder you. That's self defense. But the enforcement power, the right to punish, everyone can do the punishing in the state of nature. And not only can you punish with death people who come after you seeking to take your life, you can also punish a thief who tries to steal your goods because that also counts as aggression against the law of nature. If someone has stolen from a third party, you can go after him. Why is this? Well, violations of the law of nature are an act of aggression. There is no police force. There are no judges, no juries, so everyone is the judge in his or her own case. And Locke observes that when people are the judges of their own cases, they tend to get carried away, and this gives rise to the inconvenience in the state of nature. People overshoot the mark. There is aggression. There is punishment and before you know it, everybody is insecure in the enjoyment of his or her unalienable rights to life, liberty, and property.

Now, he describes in pretty harsh and even grim terms what you can do to people who violate the law of nature."One may destroy a man who makes war upon him ...for the same reason that he may kill a wolf or a lion. Such men have no other rule, but that of force and violence," listen to this, "and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy to you if you fall into their power", so kill them first.

Consenting to Leave the State of Nature
So, what starts out as a seemingly benign state of nature where everyone is free and yet where there is a law and the law respects people's rights, and those rights are so powerful that they're unalienable. What starts out looking very benign, once you look closer, is pretty fierce and filled with violence, and that's why people want to leave.

How do they leave? Well, here is where consent comes in. The only way to escape from the state of nature is to undertake an act of consent where you agree to give up the enforcement power and to create a government or a community where there will be a legislature to make law and where everyone agrees in advance, everyone who enters, agrees in advance to abide by whatever the majority decides. But then the question, and this is our question and here is where I want to get your views, then the question is what powers, what can the majority decide?

The Question of Limited Government
Now, here, it gets tricky for Locke because you remember, alongside the whole story about consent and majority rule, there are these natural rights, the law of nature, these unalienable rights, and you remember, they don't disappear when people join together to create a civil society. So even once the majority is in charge, the majority can't violate your inalienable rights, can't violate your fundamental right to life, liberty, and property.

So here is the puzzle. How much power does the majority have? How limited is the government created by consent? It's limited by the obligation on the part of the majority to respect and to enforce the fundamental natural rights of the citizens. They don't give those up. We don't give those up when we enter government. That's this powerful idea taken over from Locke by Jefferson in the Declaration. Unalienable rights.

Student Discussion
So, let's go to our two cases. Remember Michael Jordan, Bill Gates, the libertarian objection to taxation for redistribution? Well, what about Locke's limited government? Is there anyone who thinks that Locke does give grounds for opposing taxation for redistribution? Anybody? Go ahead.

Ben: If the majority rules that there should be taxation, even if the minority should still not have to be taxed because that's taking away property, which is one of the rights of nature.

Dr. Sandel: All right so, and what's your name?- Ben. So if the majority taxes the minority without the consent of the minority to that particular tax law, it does amount to a taking of their property without their consent and it would seem that Locke should object to that. You want some textual support for your view, for your reading of Locke, Ben?

Ben: Sure.

Dr Sandel: All right. I brought some along just in case you raised it. If you have your texts, look at 138, passage 138."The supreme power," by which Locke means the legislature, "cannot take from any man any part of his property without his own consent, for the preservation of property being the end of government and that for which men enter into society, it necessarily supposes and requires that people should have property." That was the whole reason for entering society in the first place, to protect the right to property. And when Locke speaks about the right to property, he often uses that as a kind of global term for the whole category, the right to life, liberty, and property.

So that part of Locke, that beginning of 138, seems to support Ben's reading. But what about the part of 138, if you keep reading, "Men, therefore, in society having property, they have such a right to the goods, which by the law of the community are theirs." Look at this."And that no one can take from them without their consent." And then at the end of this passage, he says, "So it's a mistake to think that the legislative power can do what it will and dispose of the estates of the subject arbitrarily or take any part of them at pleasure." Here's what's elusive. On the one hand, he says the government can't take your property without your consent. He is clear about that. But then he goes on to say, and that's the natural right to property. But then, it seems that property, what counts as property is not natural but conventional defined by the government."The goods of which by the law of the community are theirs." And the plot thickens if you look ahead to Section 140. In 140, he says, "Governments can't be supported without great charge. Government is expensive and it's fit that everyone who enjoys his share of the protection should pay out of his estate." And then here is the crucial line. "But still, it must be with his own consent, i.e. the consent of the majority, giving it either by themselves, or through their representatives."

So what is Locke actually saying? Property is natural in one sense but conventional in another. It's natural in the sense that we have a fundamental unalienable right that there be property, that the institution of property exist and be respected by the government. So an arbitrary taking of property would be a violation of the law of nature and would be illegitimate. But it's a further question, here is the conventional aspect of property, it's a further question what counts as property, how it's defined and what counts as taking property, and that's up to the government. So the consent, here, we're coming back to our question, what is the work of consent? What it takes for taxation to be legitimate is that it be by consent, not the consent of Bill Gates himself if he is the one who has to pay the tax, but by the consent that he and we, all of us within the society, gave when we emerged from the state of nature and created the government in the first place. It's the collective consent. And by that reading, it looks like consent is doing a whole lot and the limited government consent creates isn't all that limited.

Does anyone want to respond to that or have a question about that? Go ahead. Stand up.

Nicola: Well, I'm just wondering what Locke's view is on once you have a government that's already in place, whether it is possible for people who are born into that government to then leave and return to the state of nature? I mean, I don't think that Locke mentioned that at all in the...

Dr Sandel: What do you think?

Nicola: Well, I think, as the convention, it would be very difficult to leave the government because you are no longer, because nobody else is just living in the state of nature. Everybody else is now governed by this legislature.

Dr Sandel: What would it mean today, you're asking. And what's your name?- Nicola. Nicola, to leave the state. Supposed you wanted to leave civil society today. You want to withdraw your consent and return to the state of nature.

Nicola: Well, because you didn't actually consent to it. You were just born into it. It was your ancestors who joined.

Dr Sandel: Right. You didn't sign the social contract. I didn't sign it. All right, so what does Locke say there? Yes?

Unknown Student: I don't think Locke says you have to sign anything. I think that he says that it's kind of implied consent. Taking government's services, you are implying that you are consenting to the government taking things from you.

Dr Sandel: All right, so implied consent. That's a partial answer to this challenge. Now, you may not think that implied consent is as good as the real thing. Is that what you're shaking your head about, Nicola? Speak up. Stand up and speak up.

Nicola: I don't think that necessarily just by utilizing the government's various resources that we are necessarily implying that we agree with the way that this government was formed or that we have consented to actually join into the social contract.

Dr Sandel: So you don't think the idea of implied consent is strong enough to generate any obligation at all to obey the government?

Nicola: Not necessarily, no.

Dr Sandel: Nicola, if you didn't think you'd get caught, would you pay your taxes?

Nicola: I don't think so. I would rather have a system, personally, that I could give money to exactly those sections of the government that I support and not just blanket support of it.

Dr Sandel: You'd rather be in the state of nature, at least on April 15th. But what I'm trying to get at is do you consider that you are under no obligation, since you haven't actually entered into any act of consent, but for prudential reasons, you do what you're supposed to do according to the law?

Nicola: Exactly.

Unknown Student: If you look at it that way, then you're violating another one of Locke's treatises, which is that you can't take anything from anyone else. Like, you can't take the government's services and then not give them anything in return. If you want to go live in the state of nature, that's fine, but you can't take anything from the government because by the government's terms, which are the only terms under which you can enter the agreement, say that you have to pay taxes to take those things.

Dr Sandel: So you are saying that Nicola can go back into the state of nature if she wants to but she can't drive on Mass. Ave.? I want to raise the stakes beyond using Mass. Ave.and even beyond taxation. What about life? What about military conscription? Yes, what do you say? Stand up.

Eric: First of all, we have to remember that sending people to war is not necessarily implying that they'll die. I mean, obviously, you're not raising their chances here but it's not a death penalty. So if you're going to discuss whether or not military conscription is equivalent to suppressing people's right to life, you shouldn't approach it that way. Secondly, the real problem here is Locke has this view about consent and natural rights. But you're not allowed to give up your natural rights either. So the real question is how does he himself figure it out between "I agree to give up my life, give up my property" when he talks about taxes or military conscription for the fact. But I guess Locke would be against suicide, and that's still my own consent. I agree by taking my life.

Dr Sandel: All right, good. All right, what's your name?- Eric. So Eric brings us back to the puzzle we've been wrestling with since we started reading Locke. On the one hand, we have these unalienable rights to life, liberty, and property, which means that even we don't have the power to give them up, and that's what creates the limits on legitimate government. It's not what we consent to that limits government. It's what we lack the power to give away when we consent that limits government. That's the point at the heart of Locke's whole account of legitimate government. But now, you say, "well, if we can't give up our own life, if we can't commit suicide, if we can't give up our right to property, how can we then agree to be bound by a majority that will force us to sacrifice our lives or give up our property"? Does Locke have a way out of this or is he basically sanctioning an all-powerful government, despite everything he says about unalienable rights? Does he have a way out of it? Who would speak here in defense of Locke or make sense, find a way out of this predicament? Yes.- All right, go ahead.

Gogol: I feel like there is a general distinction we made between the right to life that individuals possess and the fact that the government cannot take away a single individual's right to life. I think if you look at conscription as the government picking out certain individuals to go fight in war, then that would be a violation of their natural right to life. On the other hand, if you have conscription, let's say a lottery for example, then in that case I would view that as the population picking their representatives to defend them in the case of war, the idea being that since the whole population cannot go out there to defend its own right to property, it picks its own representatives through a process that's essentially random and then these sort of elected representatives go out and fight for the rights of the people. It works very similar, it works just like an elected government, in my opinion.

Dr Sandel: All right, so an elected government can conscript citizens to go out and defend the way of life, the community that makes the enjoyment of rights possible?

Gogol: I think it can because to me, it seems that it's very similar to the process of electing representatives for legislature.

Dr Sandel: Although here, it's as if the government is electing by conscription certain citizens to go die for the sake of the whole. Is that consistent with respect for a natural right to liberty?

Gogol: Well, what I would say there is there is a distinction between picking out individuals and having a random choice of individuals. Like ...

Closing Statements
Dr Sandel: Between picking out...let me make sure, between picking out individuals, let me... what's your name?- Gogol - Gogol says there's a difference between picking out individuals to lay down their lives and having a general law. I think this is the answer Locke would give, actually, Gogol. Locke is against arbitrary government. He is against the arbitrary taking, the singling out of Bill Gates to finance the war in Iraq. He is against singling out a particular citizen or group of people to go off and fight. But if there is a general law such that the government's choice, the majority's action is non-arbitrary, it doesn't really amount to a violation of people's basic rights. What does count as a violation is an arbitrary taking because that would essentially say, not only to Bill Gates, but to everyone, there is no rule of law. There is no institution of property. Because at the whim of the king, or for that matter, of the parliament, we can name you or you to give up your property or to give up your life. But so long as there is a non-arbitrary rule of law, then it's permissible.

Now, you may say this doesn't amount to a very limited government, and the libertarian may complain that Locke is not such a terrific ally after all. The libertarian has two grounds for disappointment in Locke. First, that the rights are unalienable and therefore, I don't really own myself after all. I can't dispose of my life or my liberty or my property in a way that violates my rights. That's disappointment number one. Disappointment number two, once there is a legitimate government based on consent, the only limits for Locke are limits on arbitrary takings of life or of liberty or of property. But if the majority decides, if the majority promulgates a generally applicable law and if it votes duly according to fair procedures, then there is no violation, whether it's a system of taxation or a system of conscription.

So it's clear that Locke is worried about the absolute arbitrary power of kings, but it's also true, and here is the darker side of Locke, that this great theorist of consent came up with a theory of private property that didn't require consent that may, and this goes back to the point Rochelle made last time, may have had something to do with Locke's second concern, which was America.

You remember, when he talks about the state of nature, he is not talking about an imaginary place."In the beginning," he says, "All the world was America." And what was going on in America? The settlers were enclosing land and engaged in wars with the Native Americans. Locke, who was an administrator of one of the colonies, may have been as interested in providing a justification for private property through enclosure without consent through enclosure and cultivation, as he was with developing a theory of government based on consent that would rein in kings and arbitrary rulers.

The question we're left with, the fundamental question we still haven't answered is what then becomes of consent? What work can it do? What is its moral force? What are the limits of consent? Consent matters not only for governments, but also for markets. And beginning next time, we're going to take up questions of the limits of consent in the buying and selling of goods.