第7讲：《这片土地是我的土地》 This land is my land
洛克（John Locke）既是自由意志论的支持者，也是它的批评者。Locke指出，在“自然状态”，在任何政治体制建立之前，每个人都享有生命，自由和财产的自然权利。然而，一旦我们同意进入社会，就同意了受法律制度的约束。因此，Locke认为，即使政府干预了个人的权力，这也是大多数人的意见赋予了它权力这么做的。
John Locke
There are certain fundamental individual rights that are so important, that no government, even a representative government can override them. Those fundamental rights include a natural right to life, liberty, and property, and furthermore the right to property is not just the creation of government or law. The right to property is a natural right in the sense that it’s prepolitical, it is a right that attaches to individuals as human beings.
The state of nature: human beings are free and equal beings.
There is a difference between the state of liberty and the state of license. The only constraint given by the law of nature is that the natural rights we have, we can’t give up nor can we take them from somebody else.
Where does it come from?
Locke: “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.” (You are the creature of God, God has a bigger property right in us.)
For those who don’t believe in God…
Locke: “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. 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.” (Our right of nature is unalienable不可分割)
About labor…
Locke: “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.”
We own our labor
Whatever we mix our labor with, that is un-owned becomes our property
“Whatsoever then he removes out of the state that nature has provided, and left it in, he has mixed his labor with, and joined to it something that is his own, and thereby makes it his property.”
“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, at least where there is enough, and as good left in common for others.”
“As much land as a man tills, plants, improves, cultivates and can use the product of, so much is his property. He by his labor does, as it were, enclose it from the common共有财产.”
(Separates Locke from Libertarians: constraints on what we can do with our natural rights, but his ideas about private property begins with the idea that we are the proprietors of our own person, and therefore of our labor)
Students’ opinion on Locke’s idea
“This account of how property arises would fit what was going on in North America during the time of the European settlement. He is justifying colonization, justifying the taking of land in North America from Native Americans.”
Locke defender1: “Native Indians were already using the land, they just don’t have Locke on their side.”
Locke defender2: “You can’t take land that everybody is sharing in common, and you can’t take land unless you can make sure there as much land as possible left for other people to take as well.”
If the right to private property is natural, not conventional, how does that right constrain what a legitimate government can do?
Even though Locke insisted on limited government, there is an important sense in which what counts as my property are for the government to define.
第8讲：《满合法年龄的成年人》
洛克谈到税收和同意的问题，他是如何面对以下两个问题的困扰：1）他认为个人的生命，自由，财产具有不可剥夺的权利 2）政府通过大多数的条例- -未经个体同意，就可以向他们征税？难道这不等于未经他/她的同意，掠取他的个人财产？洛克的答案是，我们正在通过社会生活对税收法律做“默认同意”，因此，税收是合法的。而且，只要政府不是特意对某一群体征税-如果不是武断专横的-那么税收并没有侵犯个人的基本权利。
Recall Locke: government based on consent, limited government
Locke’s second big idea: Consent
Locke: legitimate government is government founded on consent
What a legitimate government founded on consent can do? What are its powers (according to Locke)?
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?
Locke: there are some inconveniences in the state of nature.
Everyone can enforce the law of nature, “the executor”. Violations of the law of nature are an act of aggression, anyone has the right to punish those who violate it. But when people are the judges of their own cases, they tend to get carry away. The state of nature looks nice, but when you look closer, it’s pretty fierce and filled with violence, and that’s why people want to leave.
How do they leave? Here is where consent comes in. The only way to leave 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 legislature to make law and where everyone agrees in advance, everyone who enters, agrees in advance to abide by whatever the majority decides.
Then the question is, what powers, what can the majority decide?
Locke: Even once the majority is in charge, the majority can’t violate your inalienable rights.
Limited government: it’s limited by the obligation on the part of the majority to respect and to enforce the fundamental natural rights of the citizens. “The supreme power cannot take from any man any part of his property without his own consent.”
However…
“Men therefore in society having property, they have such a right to the goods, which by the law of the community are theirs…and that no one can take from them without their consent” – Locke
In brief, Locke认同政府不能未经个人允许就拿走个人财产，但同时他也认为“个人财产”不由自然而是由政府来定义。
What’s more
“Governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it. But still it must be wit his own consent, i.e. the consent of the majority, giving it either by themselves or their representatives chosen by them.”
简言之，property一方面是“自然的”另一方面又是“约定俗成的”。那么问题在于，What counts as property, how it’s defined and what counts as taking property, 而这是由政府决定的。
因此Consent的意义在于，这是由我们脱离自然状态建立政府的时候所给出的consent。It’s the collective consent.
Student 1: 但我们其实并没有签署“consent”，我们自从出生就在这样的体系里面，Locke对于想要脱离政府系统回到state of nature怎么看？
Student 2: 虽然我们并没有真正“签字”，但这可以看作是implied consent。从我们出生起享受政府提供的服务就可以看作我们默认自己属于这个系统。
Student 1: 默认同意不足以产生任何服务于政府的义务。
Student 2: You can’t take the government’s services and not give them anything in return
Professor: 关于take government’s services, 怎么看生命权？征兵？
Student 3: 把人送去战场不代表他们一定会死。征兵并不等同于压制了人的生命权。问题在于Locke如何自圆其说，因为根据他的观点即使作为权利的拥有者的个人也不能够自愿放弃生命权。
If we can’t give up our own life, how can we then agree to be bound by a majority that will force us to sacrifice our lives or give up our property? Locke如何自圆其说？
Student defending Locke: 如果把征兵看作政府在选人去战场，则违背了“不可剥夺人的生命权”。但如果比如是用抽签方式决定谁上战场，那是population在选出他们的代表去参战。这些随机选出代表的方式就像民选政府的方式。
Prof: I think this is the answer Locke would give. Locke is against arbitrary government, 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.
简言之只要过程不是专制的就可以take property from individuals。但Locke的观点基于The whole is America。彼时美国人正和Native Indians开战，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.
The fundamental question we still haven’t answered is, what then becomes of consent?