Legitimizing Force: A Lockean Account

M. J. CRESSWELL

number of recent articles in Armed Forces & Society have stressed the need for a normative theory of civil-tnilitary relations. Thus Burk seeks "a normative theory that helps us to understand how civil-military relations sustain and protect democratic values." And Cottley, Edmunds, and Forster argue that "there is a need for a more developed, sophisticated, and explicitly normative conceptualization of the relationship between armed forces and political power in democracies.'" All these authors are keenly aware that the dangers facing a democratic society come from the lack of moral and political constraints on what a state may legitimately do.^ The concern of the present paper is to examine how the work of John Locke (1632-1704) in the Second Treatise of Government^ may be applied to the problem of establishing the moral legitimacy of the armed forces in a civil state, and the morality and role of those who serve in them.'' Traditional political theories since the seventeenth century have been based on the idea of a collection of independent and autonomous "nation-states." Suppose we agree that morality does not in general rule out the use of force.' What do we say about the use of force by a nationstate? This depends on what we say about morality between states. Janis notes that for the purpose of international law a state is usually defined by four essential elements: "a defined territory, a permanent
Max Cresswell obtained a BA and an MA from the University of New Zealand, and earned a PhD from the University of Manchester. Dr. Cresswell also holds a LitD from the Victoria University of Wellington, where he taught philosophy from 1963 to 1999. He has taught at the University of Massachusetts, the University of Califomia, and Texas A&M University, where he holds a continuing part-time appointment. His principal research interests are in logic, the philosophy of language, and the history of philosophy. He has published ten books and over 150 articles. Dr. Cresswell is currently teaching a course in civil-military relations for the Centre for Defence Studies at Massey University. Address for correspondence: Dr. M. J. Cresswell, Department of Philosophy, The University of Auckland, Private Bag 92019, Auckland, New Zealand. Armed Forces & Society, Vol. 30, No. 4, Summer 2004, pp. 629-648.

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population, a government, and a capacity to conduct international relations."* The first two of these, and arguably the third, involve what philosophers would call questions of factmatters which can be stated in purely descriptive terms. There is no moral or legal judgment in whether the conditions listed might obtain. The third is a question of fact //"having a government means having a government which is in fact in control, whatever its legal or moral legitimacy, while the fourth seems rather a legal consequence of being a state. On page 183, Janis points out that some consider a state to exist only when it has been recognized as such, while others assume that recognizing a state is only recognizing a preexisting fact. But whatever side we take, it seems that legal recognition of a state does not of itself involve a judgment about its moral legitimacy. It is the question of where that legitimacy comes from to which Locke's Second Treatise is attempting to provide an answer.''

The State of Nature

Thomas Hobbes (1588-1677) assumes that if there is no political authority, then everyone is in a "state of nature," which (for Hobbes) is a state in which all are at war with each other.* When people come together to form a state (or commonwealth, as it is often called), they must agree to give a "sovereign" the power to do what he (or she) will, and thereby provide the ability to enforce morality.' Subsequent social contract theorists were concerned to limit the sovereign's power. The importance of social contract theory in determining society's attitude to a standing army is well recognized, most notably in the early history of the United States of America, and it is not necessary to revisit this welltraversed ground. What seems less noticed is the extent to which the almost axiomatic theory of government found in the Second Treatise enables the deduction of principles applying to the appropriate use of armed force among nations.'" Given the recognized centrality of Locke in the history of political thought, it is somewhat surprising that so little work has been done on applying his political philosophy to international relations." For Locke, unlike Hobbes, people living in a state of nature are subject to a Law of Nature,'^ which is a divinely ordained law governing people who are not under any legitimate authority (6).'^ The most important feature of the Law of Nature is that it is based on a transmissional theory of property (chapter V, especially 25-51). Locke articulated a theory of property which forms the basis for what

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is often called "libertarianism,'"'' and this might be argued to be the morality that we (at least in the Western world) live by.'' A distinction highly important to the question of the moral legitimation of the use of force is that between enforceable morality and non-enforceable morality. Libertarianism as a moral theory holds that you can do what you like with your own property, and others may do the same with theirs, but have no claim on your property. Thus a wealthy person has no obligation to assist a starving beggar, even though such people may be praised if they do. As a corollary, it would be unjust to compel anyone to act generously.'* Property, for Locke, is understood very widely to include your own person and your labor (27). If you interfere with someone's rights to their own property, then you transgress the Law of Nature, and the Law of Nature itself permits anyone to punish transgressors "to such a degree as may hinder its violation" (7). Although he will not be drawn to being more specific about the level of punishment that is appropriate, Locke says in 12 that "Each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like." These are the rights we have in a state of nature. But Locke, like Hobbes, believes that civilization depends on citizens agreeing that within certain limitsthey give up their rights to the state." That you cannot take the law into your own hands is a desirable state of affairs. If we can all trust the state to protect our rights, we are less likely to indulge in vendettas and private violence, and thus in the end all are happier. This utilitarian justification of Lockean political theory emerges quite clearly in 123: If man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? Why will he give up this empire, and subject himself to the dominion and controul of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason.

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that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.

The Social Contract

In Locke's account the Law of Nature governs people until they agree to bind themselves together into a commonwealth. The members of such a commonwealth no longer have a status in themselves as political beings under the Law of Nature. Given that the individual members have no status according to the Law of Nature, they cannot be said to be in a state of nature. A state of nature on this account is something which can hold only between basic political entities. These may be ordinary people, as when we are in the state of nature that precedes the formation of political society, or they may be what Locke calls a commonwealth (133). Locke also uses the term "body politick." Locke writes (95): When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politick, wherein the majority have a right to act and conclude the rest. An earlier paper'* argues that we should take very seriously the new ontological category of a body politick. For what it means is that the state of nature is not just a condition that has only an historical connection with political authority in today's world, but is a condition in which certain entities currently exist. No longer, to be sure, individual people, but independent nation-states. It is, perhaps, a failure to grasp this point that explains.the fact (noted above) that so little work has been done on the consequences of Locke's political theory for international relations, and particularly for the use of force by nation-states. For if the status of a commonwealth as an entity governed by the Law of Nature is not appreciated, then neither will the fact that the Lockean model has substantive consequences for international relations. Locke's position on this is set out in 145, and it is worth quoting the whole of the section. There is another power in every commonwealth which one may call natural, because it is that which answers to the power

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every man naturally had before he entered into society. For though in a commonwealth the members of it are distinct persons, still, in reference to one another, and, as such, are governed by the laws of the society, yet, in reference to the rest of mankind, they make one body, which is, as every member of it before was, still in the state of Nature with the rest of mankind, so that the controversies that happen between any man of the society with those that are out of it are managed by the public, and an injury done to a member of their body engages the whole in the reparation of it. So that under this consideration the whole community is one body in the state of Nature in respect of all other states or persons out of its community. Simmons" uses passages like this to argue for a relational concept of a state of nature: A person (A) is in a state of nature relative to another (B) if and only if A has not voluntarily agreed to join (or is no longer a member of) a legitimate political community of which B is a member. Simmons has rightly discerned that the essential feature of a state of nature is the lack of a common authority (apart from God). But by taking Locke's ontology seriously, we can argue that being in a state of nature means not being bound by any authority apart from God; and the last sentence of 145 seems to understand commonwealths to be in such a state of nature. Further, in 183 we read, "and all commonwealths are in the state of nature one with another." In consequence commonwealths, independent princes (14), and any individuals, if they have no common authority apart from God, must be governed by the Law of Nature.^" We now have a Lockean justification of international law. It is the same Law of Nature as the law that governs the original state of nature before commonwealths are formed, and which justifies the formation of commonwealths in the first place. Since all commonwealths are in a state of nature, they can legitimately act among themselves only in accord with the Law of Nature. When individuals in a state of nature come together to form a commonwealth, they give up to the commonwealth rights they had under the Law of Nature. Two things happen. First, a new entity comes in to existence ( 95, 96); and second, a valid transfer of political rights

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takes place, specifically (128) the right to self-preservation (129) and the right to punish transgressors ( 130). It is worth commenting on the giving up of the right of self-preservation, since that would tend to suggest that there is a limit in a commonwealth to the right of self-defense. It is not even clear whether Locke recognizes any right to individual selfpreservation in civil society, though of course this is only because there is now an obligation on society to enforce the right to self-preservation which we all have in a state of nature. Be that as it may, it is important to see that the right of a state to apply force is deduced from the rights individuals have in a state of nature, not from rights such as the right to self-defense that they may have under the civil law^' of the commonwealth. One key point in Lockean political theory is that the powers of the commonwealth are limited to those had by its people when they were in a state of nature. They cannot hand over rights they did not have, and in particular they cannot (as Hobbes had thought) hand over absolute power to a sovereign. Locke's theory was held to justify the English Revolution of 1689, according to which the king ruled with the consent of Parliament, and not by divine right.^^ A second, equally important, point is that the commonwealth comes into existence by agreement, and that consent in one form or another" is crucial to Locke's political theory. Consent is important as a precondition for respect. Unless citizens respect their political system, it is unlikely to function effectively. The need for respect for the "principles and norms" of a "regime" has recently been stressed as a condition for the success of "the sharing of responsibility between civilian leaders and military officers" which is needed to guarantee civilian control of the military.^''

The Right to Make War

From a Lockean point of view, the rightness or wrongness of a state's engaging in war is determined by the Law of Nature. The Law of Nature, although divinely ordained, has no courts to enforce its judgments. Any country has the right to go to war against another country if that other country has transgressed. States can bring moral arguments for or against their position, or they can achieve a solution via diplomatic negotiation. In the last resort, force can be used. The reasons for making force, in the form of armed combat, a last resort are of course that the use of violence is, in itself, a severe moral cost; its negative value must be set against any advantage to be gained by its use. If that were all that was to be said, Locke's theory might be held to be contentless. But that ignores Locke's doctrine of property and the

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Utilitarian underpinnings of his view of the Law of Nature. Transgressions of the Law of Nature occur when someone takes what is not theirs. In terms of international relations, this would happen if a country were invaded without having itself contravened the Law of Nature. Locke does not restrict the right to punish to the party who has been wronged (7, 8)." Indeed he cannot, since it is crucial to the social contract that your right to punish can be given to another. This would immediately give a Lockean justification, not only of resisting invasion, but of coming to the aid of a wronged country by invading the aggressor.^"^ The Lockean perspective makes clear why a nation may not interfere in the internal affairs of another country. The members of a commonwealth are not themselves political entities living under the Law of Nature; they are living under the laws of the commonwealth, and therefore their actions within that commonwealth are not subject to the Law of Nature. Does this mean that citizens in a country with an unjust regime have no redress in Lockean theory? This area of Locke's political philosophy has been well traversed, since it concerns the right to revolution. What happens here may be illustrated by looking at how one might justify the removal of Saddam Hussein. Locke's political theory is often held to be a theory in which the rulers hold their positions in trust to the people." When a ruler betrays his (or her) trust, then presumably they are in a state of war with respect to the commonwealth of which they were once a member, and relations between them and the commonwealth are governed by the Law of Nature (207). This would give another nation the right to intervene. Saddam takes over Iraq, and acts in a way that betrays the trust of its citizens. Although a commonwealth could not, on Lockean principles, intervene in the internal affairs of another commonwealth, this would not be such an intervention since Saddam would no longer be internal to the commonwealth (Iraq) and is in a state of war relative to it. Since Saddam is no longer internal to Iraq, relations between him and Iraq are not internal to Iraq, and so are governed by the Law of Nature. Therefore the United States, as an entity governed by the Law of Nature, can punish Saddam by the right that any commonwealth has over other commonwealths in accordance with the Law of Nature.^^ Lockean theory provides a clear justification for at least two of the principles of a just war. Since the right to punish under the Law of Nature has been given up, only a legitimately formed commonwealth can engage in a just war. Since the war is waged under the Law of Nature, it must be justified in terms of that law. In respect to the principles that war only be waged as a last resort, and that there must be a reasonable

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hope of success, recall that the force used to punish transgressors must be appropriate, and that the punishment must "make it an ill bargain to the offender." If punishment is not likely to ensue, then this would not happen.

The Military Ethos

If we take the Lockean idea, first that it is right to punish transgressors of the Law of Nature, and second that this right in a commonwealth is not available to private citizens, then the state, and only the state, has authority to maintain organizations that are needed to apply force when it is justified.^' One important reason for forming a commonwealth is that private individuals only too easily succumb to partiality and prejudice in judging how to punish wrongs against themselves.^" Because individuals in a state of nature are partial in their own case, and therefore prejudiced when they are their own judges, the necessity for impartiality applies crucially to those state institutions charged with executing force. Institutions such as the police and the armed forces are charged with protecting the rights of others. In Lockean theory, the right to use force has been given up to the state. Given that a reason for forming commonwealths is to avoid partiality, it follows that those charged with using force in the service of the state must form a body professionally trained in the impartial and reasoned application of force. The Law of Nature demands that punishment be appropriate, and judgments of appropriateness demand a high order of moral and technical skill.^' The internal use of force in a state is by means of the police, and the external use by the armed forces. Both are that branch of the executive charged with enforcing the legitimate policy of the commonwealth. The commonwealth has become an entity under the Law of Nature, and its relations with other commonwealths are governed by that law. Its internal relations are governed by laws agreed by the commonwealth. What this means is that if a commonwealth uses force to settle disputes, it will make a big difference whether the dispute is internal or external. In a commonwealth a criminal is dealt with according to the criminal law of the commonwealth. The morality of external dealings is governed by the Law of Nature. Only the state can wage war, for the right to punish is one which has been given up, and the use of force has been institutionalized. On the Lockean account as I have presented it, the Law of Nature governs relations between independent states and not between members of those states. The acts of a soldier acting (lawfully) in accordance with the laws of the commonwealth may be construed as acts

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of the commonwealth itself. As acts of the commonwealth, they are judged in accord with the Law of Nature. However, as acts of individual soldiers, they are judged (presumably) according to the rules that the state sets for them. This distinction enables us to approach one version of our original question. What are we to say of the heroic actions of a soldier in an unjust war? The Lockean perspective is quite clear: the injustice of the war has to be injustice according to the Law of Nature. But the Law of Nature does not apply to a member of a commonwealth. Thus an individual soldier's actions are to be judged in terms of service to the stateindependently of whether the state is wrong or right when judged in accordance with the Law of Nature.'^ The laws of the commonwealth are justified by the Law of Nature, and in terms of content that law is basic. However, the epistemic status of the Law of Nature is another matter: For though the Law of Nature be plain and intelligible to all rational creatures; yet men, being biased by their interest, as well as ignorant for want of the study of it, are not apt to allow of it as a law binding to them in the application of it to their particular cases (124). This deficiency is part of what necessitates the laws of a civil community. Locke states that the laws of the commonwealth must be clear and public: And so whoever has the legislative or supreme power of any commonwealth is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the force of the community at home only in the execution of such laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion (131). The epistemic difference between these two bodies of law has important procedural consequences. In a democracy the police and other internal enforcement agencies operate under the laws of the commonwealth against those who have broken these laws, and operate as part of a legal system of lawyers, judges, courts and so on. The rules of procedure are strict and detailed. In addition, their operations usually involve dealing with individuals or small groups. The armed forces

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serve the state in dealings that are governed by the Law of Nature against those with whom the commonwealth may be in a state of war (131) and often in situations in which any civil law has ceased to operate." Even though individual soldiers are not in a state of nature, the actions they are being asked to perform in a combat situation have to be justified, as actions of the commonwealth, by the Law of Nature. Because the Law of Nature is not codified the legitimacy of an action cannot be constituted, as in a legal system, by following set procedures in accordance with known laws of the commonwealth. The legitimation has to take place by ensuring the integrity of the command structure, and therefore depends on the moral and professional integrity of individuals. The action of a soldier in battle is legitimate if it is done in response to a legitimate command. Those in command must know, and often decide in seconds, what it is legitimate to do; and those under their command must trust them to know this, so that they can obey orders instantly. The personal qualities needed to guarantee this trust require a "virtue ethics" for members of the armed forces.

Nation-States and Supranational Bodies

The Lockean position envisages independent states, and may be an anachronistic way of looking at things in its dichotomy between two extremes: the Law of Nature and the laws of the commonwealth. Although for Locke nation-states have rights to intervene in certain circumstances in the affairs of others, they are all under the Law of Nature. The problem today, however, is that there are a number of intermediate positions.^'' Burk takes transnational relations to reveal weaknesses in both liberal and civic-republican theories.^' If one asks whether the Lockean model, based on the autonomy of nation-states, may prove inadequate to today's world, it is tempting to give a "yes and no" answer. Take the case of the European Union (EU). In Lockean terms there would seem to be conceptual confusion about whether the EU is a kind of super commonwealth, with laws that operate somewhat as federal law in the United States, or whether the authority of the EU is derivative from the more basic authority of the nation-states that are its members. If a new EU regulation is promulgated, then the United Kingdom (UK) may have all kinds of treaty obligations to make it part of British law, but it does not become British law until this has been done. Nevertheless there are various mechanisms that EU members have agreed to, and which in certain cases can be appealed to in order to settle disputes at a European level. Insofar as the EU is like a nation-state.

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relations between its members are no longer governed by the Law of Nature, and so there need be no prohibition against interference in the internal affairs of another country within the EU.-"^ A defender of Locke would say that the conceptual confusion is not in the model, but in a refusal by member states of the EU to accept that they cannot have it both ways. Even looser is the United Nations (UN). While there are various international regulatory bodies, it is unclear how much authority they have, since UN resolutions require ratification by the member states. Certainly a UN force has to use the agencies of particular states. In fact it may be said that one of the problems for traditional political theory is how to locate activities such as peacekeeping operations in a foundational account of the role of the armed forces, particularly in terms of the question of the authority according to which they are acting.^^ Locke admits treaties between independent states, but the obligations to keep these, and the sanctions that can be applied if they are not kept, are all governed by the Law of Nature. Still, Locke's arguments against the danger of appealing to the Law of Nature to favor your own position would seem to apply with even greater force to the actions of nationstates themselves.'* Peacekeeping is one practical area in which it is vital to become clear about the connection between nation-states and supranational bodies. If the distinction made above between the police and the armed forces is to be maintained, it is important for a peacekeeping mission under the control of an international body to know whether it is to be understood as a police operationdesigned for maintaining the stability and integrity of a supracommonwealthor whether it is operating more like a combat mission under the authority of the separate nation-states that are providing its forces.'' Several recent studies have revealed an ambivalence in military attitudes to peacekeeping,"" so the conceptual confusion here is by no means theoretical only. Another area of concem is that of the environment. Locke's theory of property clearly envisages a world in which there is plenty for all (33, 36), and therefore what God has provided is there for the taking."" More difficult for the Lockean model is the problem of subnational threats. Moskos lists ethnic violence and terrorism as examples of the fact that the perceived threats in the "postmodern" military environment are from organizations that have no recognized political status."*^ On the Lockean model it would seem that such organizations can be dealt with only by the country within which the actions occurred, or of which the perpetrators are citizens; unless perhaps one can argue that their actions

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have removed them from civil society, and have laid open the way to treat them under the Law of Nature. If so, it is important to distinguish them from ordinary criminals.

Conclusion
I have tried in this paper to show how a Lockean model of political authority is able to locate the position of the armed forces in society in a way that allows answers to be given to a number of important questions concerning the legitimacy and role of the military. Specifically, I have shown how the model enables us to draw the following conclusions. 1. The Law of Nature concerns the protection of property, and transgressions occur when someone takes what is not theirs. The Law of Nature gives every entity governed by it the right to punish transgressors. 2. The authority of the commonwealth to punish transgressors is derived (via a social contract) from the right of individuals under the Law of Nature. In the formation of the commonwealth, that right has been given up by the members of the commonwealth to the commonwealth itself. Therefore the armed forces can only be used by the authority of the civilian state, whose authority derives from the people. 3. The state's internal dealings are governed by the laws of the commonwealth, but the state's extemal dealings are govemed by the Law of Nature. The legitimacy of going to war is therefore a question of whether the state is acting in accord with the Law of Nature. 4. Because the right to punish transgressors has been given to the state, the punishment of transgressors is now undertaken by specialized authorities within the state, most importantly the police and the armed forces. The police operate intemally and the armed forces operate extemally. Because these bodies are charged with this function, they each form a profession with special skills and its own ethos. Its essence is to avoid the abuses caused when each person is a "judge in his own case." 5. Members of commonwealths are not themselves commonwealths, and so are not subject to the Law of Nature. So individual members of the armed forces are acting under the (military) laws of their own commonwealth, and the question of their acts as individuals is the question of how they should operate under these laws.

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6. The Law of Nature does not provide the precise content of the rules applicable to any particular external military operation. In most cases, legitimacy has to be constituted by a valid chain of command. This requires the integrity of members of the command chain, and so necessitates personal loyalty on the basis of that integrity. This leads to a virtue ethics for military personnel. 7. The Lockean model works well on the assumption of a world of autonomous nation-states, but may be less successful in today's global community. The Lockean account will not in itself provide a complete basis for military morality. For it requires that we have moral intuitions about how individuals are permitted to behave in the way of applying force against others when there is no competent authority under which they are living. Locke's own theory appears to be a kind of libertarianism, and I have conceded that he offers little by way of defending that moral theory. Obviously you might get different results if you begin with different moral intuitions about individuals in a state of nature. What the Lockean account does is show how these intuitions can be translated into principles that apply to the activities of a commonwealth. This does not mean that the moral consequences of conclusions 1-7 require the Lockean model. In fact, their practical implications could be widely accepted by advocates of many diverse theoretical backgrounds; and may indeed constitute a set of adequacy criteria for any derivation of the scope and limits of the use of force by a state. Nevertheless, the Lockean perspective does provide a framework which, if it does not mechanically supply answers to many of the difficult value questions that arise regarding the armed forces, at least enables the questions to be approached from a unified theoretical basis rather than as a collection of unrelated issues.

Notes
Author's Note: This paper was written while under contract to the New Zealand Army Military Studies Institute, for teaching a course on civil-military relations for the Massey University's Centre for Defence Studies. I would like to acknowledge the support and encouragement of the MSI Commanding Officer, Lt Colonel Alan McCone; the thendirector of the Centre for Defence Studies, Maj. Gen. Piers Reid (retired); and Dr Glyn Harper, the present director of the Centre. I would also like to thank the editor and three referees for Armed Forces

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& Society for enabling me to make numerous improvements on an earlier draft.

1. J. Burk, "Theories of Democratie Civil-Military Relations," Armed Forces & Society 29, 1 (Fall 2002): 7-29, at p. 10; A. Cottley, T. Edmunds, and A. Forster, "The Second Generation Problematic; Rethinking Democracy and Civil-Military Relations," Armed Forces and Society 29, 1 (Fall 2002): 31-56, at p. 35. Cottley, Edmunds, and Forster, in "Rethinking Democracy," p. 39, use J.S. Mill's phrase "tyranny of the majority" {On Liberty) to refer to this danger. Burk, in "CivilMilitary Relations," p. 10, points out that a "key concem for liberal theorists is how to ensure that the power of the sovereign is not abused by overturning the rights and liberties of the citizens." Both treatises by Locke are found in P. Laslett (ed.). Two Treatises of Government (Cambridge: Cambridge University Press, 1960). The Second Treatise is in The Second Treatise of Government: an Essay Concerning the True Original, Extent and End of Civil Government; and, A Letter Concerning Toleration, edited with a revised introduction by J.W. Gough (Oxford: Blackwell, 1976). The purpose of this paper is limited. It does not pretend to argue that only a Lockean theory can answer the hard questions of military morality, though the reason why the Lockean answers can seem like common sense may well be because they have entered the basis of our tradition of thinking about these issues. Of course you do not have to have a theoretical framework in order to see that certain answers work in practice. But it is always salutary to remind those who think that they are not assuming any framework that they are almost certainly working with one that is unacknowledged, and therefore may not have been subjected to adequate scrutiny. It was said long ago that the unexamined life is not worth living. The problem of getting from the morality of individuals to the morality of states can be illustrated by a simple example. The least contentious situations in which the use of force by a state is held to be justified are cases in which force is used in defence against invasion; and in the literature on the legitimation of force and violence the justification of the use of armed force in such a situation is often based on the right of individual self-defense. Thus R.K. Fullwinder ("War and Innocence," Philosophy and Public Affairs 5, 1 (1975): 90-96) attempts to find a method of distinguishing between combatants and noncombatants in a way that makes it legitimate to harm the former but not the latter. He does it by postulating that killing in war is killing in self-defense, and that the enemy combatant is part of the attacking force. The problem is that the situation of a soldier defending a country against invasion is not meeting a threat to the individual soldier; it is a part of the response to a threat to the state. Certainly the pacifist challenge must be taken seriously. An examination of the moral basis of pacifism is found in J. Narveson, "Morality and Violence: War, Revolution, Terrorism," in Tom L. Beauchamp and Tom Regan (eds). Matters of Life and Death, New Introductory Essays in Moral Philosophy, 3rd ed. (New York: Random House, 1993), 21-159.

2.

3.

4.

5.

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6.

M.W. Janis, An Introduction to Intemational Brown, 1993), p. 276

Law, 2nd ed. (Boston, MA: Little,

7.

In establishing a basis for the morality of states we have a number of choices; morality between states could be basic, or it could be derived from a more basic morality between individuals. This paper ^is looking at a Lockean justification of legitimacy, and such a justification derives political legitimacy from individual morality. The alternative view might follow from what is sometimes described as the "organic" theory of the state. Organic theories, perhaps like that advocated by Hegel (1770-1831) or perhaps some Fascist or Communist theories, hold that the state is an entity prior to and more important than its citizens. Alfred C. Stepan, in Arguing Comparative Politics (Oxford: Oxford University Press, 2001, pp. 57-72), points out that the organic model should not be restricted to Hegel's views and Fascist totalitarianism. He distinguishes "organic statism" from Marxism, though both models deny the primacy of the individual. Burk ("Civil-military relations," p. 9) distinguishes between liberal theories of the kind discussed by Samuel Huntington in The Soldier and the State (Cambridge, MA: Harvard University Press, 1957) and "civic republican" theories, of the kind discussed by M.M. Janowitz in The Professional Soldier: A Social and Political Portrait (Giencoe, IL: The Free Press, 1960). While civic republican theories may not quite be organic theories, they have this in common: that the citizen-soldier concept attributes value to an individual in terms of being a citizen. (Burk's criticism of both theories is that they cannot adequately come to terms with today's intemational situation. This question is discussed briefly in the section of the present paper titled "Nation-States and Supranational Bodies.") But even if an organic theory were accepted, it would still not follow that the descriptive legal definition of a state could be justified, for the question would turn on whether a state described in those terms was in reality sufficient of an organic unity to be a moral being. Stepan, in Comparative Politics (p. 62), says, "However it is important to understand that a just and stable organic order is not necessarily to be equated with the established order." Hobbes seems to assume that there can be no morality between states: "Where there is no common Power, there is no Law: where no Law no Injustice." (Hobbes, Leviathan, ed. Richard Tuck [Cambridge: Cambridge University Press, 1991], chapter xiii, p. 90). This may also have been the view of Niccolo Machiavelli (14691527). Machiavelli's treatise The Prince is an advice manual for attaining and holding on to power, and his discussion of the virtues that are to be cultivated by a prince focuses on how the prince is perceived. Hobbes' theory gives a sovereign absolute power. In the seventeenth century, the alternative way of supporting the view that the sovereign has absolute authority was the "divine right" theory, by which kings ruled according to the will of God, and thus were not responsible to the will or consent of their subjects. Although such theories are not held today, they are analogous to organic theories in that a divinely constituted ruler can be regarded as the symbol of an organic state. They are different in that the legitimacy of the state is determined solely by the authority of a single person. By contrast, a "bottom-up" theory locates the original authority in the citizens of the state. Hobbes was unusual in advocating a bottom-up theory that gave absolute power to the sovereign. (That was why he was popular neither with the

8.

9.

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Torieswho advocated the divine right theorynor with the Whigswho advocated a theory which placed limits on the king's power.) 10. R. Ashcraft, "Locke's Political Philosophy," The Cambridge Companion to Locke, ed. V.C. Chappell (Cambridge: Cambridge University Press, 1994, pp. 226-251) protests that it is anachronistic to present Locke's Second Treatise as an abstract political theory from which may be derived some valid and universal principles of government. Undoubtedly Locke had a political agenda. It was either to justify in advance the English Revolution, or to justify it once it had happened, and in particular to argue against divine-right theories in the form presented by Robert Filmer. Perhaps also parts of Locke's work were designed to justify the colonization of America. Nevertheless, it is certainly not out of keeping with the spirit of the seventeenth century that Locke should want the principles of the Treatise shown to be validly derivable from universal truths, in much the way that in the Essay Concerning Human Understanding (ed. P.H. Nidditch, Oxford, Clarendon Press, 1975) he wants to derive all knowledge from its basis in experience. See also Richard Cox, Locke on War and Peace (Oxford: Clarendon Press, 1960), p. 186. 11. Thus for instance Janis, Intemational Law, mentions Hobbes as one of the originators of the theory of nation-states, but only mentions Locke (p. 241) in the context of human rights. Admittedly the principal purpose of the Second Treatise is to prevent the oppression of a people by its government, and the bulk of scholarship on Locke's political philosophy rightly focuses on this aspect, but his theory has consequences in other areas. One of the few discussions in recent years of a Lockean theory of intemational relations is in chapter 7 of Howard Williams, International Relations and the Limits of Political Theory (New York: St Martin's Press, 1996), pp. 90-109. The only book-length study, and the only previous author mentioned by Williams, seems to be Cox's Locke on War and Peace. Cox also appears to have found that this aspect of Locke's theory has been neglected. On p. xv he says, "It is true that Locke is not usually thought of as having had any particular concem with the problem of foreign relations." 12. The term Law of Nature has been capitalized throughout to indicate whatever Locke understands by the phrase. 13. The idea that there is such a law goes back at least to the Middle Ages (perhaps as far back as Cicero in Roman times, or even to Aristotle.) Among Christian natural law theorists, the principal one is Thomas Aquinas (1224/5-1274). Summa Theologica, 1-2, qu 91, art 2. Hugo Grotius (1583-1645), in De Jure Belli ac Pads (Amsterdam, 1712), argued that there is such a law independently of the existence of God. The questions of Locke's place in the natural law tradition, and the originality of his contributions, are unquestionably important, and some discussion of Locke in this context may be found in Thomas L. Pangle and Peter J. Ahrensdorf, Justice Among Nations: On the Moral Basis of Power and Peace (Lawrence, KS: University Press of Kansas, 1999). Cox, in Locke on War and Peace (pp. 140-147), discusses differences between Locke's concept of the Law of Nature and that of other natural law theorists. In particular he notes that Grotius locates the authority of the law of nations in the agreement of states. My aim is the more modest one of seeing what we can extract from the Second Treatise, whatever Locke's debt to earlier theorists may be.

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14. See Regan's introduction to Matters of Life and Death, p. 22. Libertarianism enters current discussions of morality in connection with such issues as third-world poverty and hunger. For an example, see O. O'Neill, "Ending World Hunger," in Matters of Life and Death, p. 270. 15. Locke's discussion of morality is usually considered the weak point in his philosophy. See J.B. Schneewind, "Locke's Moral Philosophy," The Cambridge Companion to Locke, ed. V.C. Chappell (Cambridge: Cambridge University Press, 1994), pp. 199-225. Although Locke does give specific content to the Law of Nature, he gives little to justify its moral claims, and for that reason a Lockean account of legitimizing force may need supplementing by a more robust theory of individual morality. Cox, in Locke on War and Peace (p. 90), traces Locke's view of intrinsic value to his assumption that our survival depends on the use we make of nature. This grounds Locke's discussion of property in chapter V of the Treatise and forms the basis of his morality of property rights. 16. In the Letter Concerning Toleration (on p. 150 of Gough's edition), Locke writes: "Covetousness, uncharitableness, idleness, and many other things are sins, but by the consent of all men, which yet no man ever said were to be punished by the magistrate." Presumably the argument here is that, in the long run, a settled society based on the sanctity of property leaves everyone better off. The turbulent history of seventeenth-century England would no doubt make such an argument appeal to Locke. 17. Narveson, in "Morality and Violence," bases the claims of morality in general on the fact that it is in everyone's self-interest to rely on morality as a social contract. 18. M.J. Cresswell, "An 'Ontological' Argument for the Contract-Trust Theory," Locke Studies 1 (2001): 159-172. 19. A.J. Simmons, The Lockean Theory of Rights (Princeton, NJ: Princeton University Press, 1992), p. 129, n 19. 20. This point is elaborated in Cox, Locke on War and Peace, pp. 137-139. 21. Note that when discussing Locke, the "civil" law is opposed to the Law of Nature, and includes what lawyers would call both criminal and civil law, and indeed military law. 22. The limits of the commonwealth's power provide a justification for civil rights and liberties. In "Rethinking Democracy," Cottley, Edmunds, and Forster point out that one of the problems in post-Communist Eastem Europe is that under the Soviet system there was subordination of the military to the civil power, but little democratic control and restraint of such power. They consider that to be a serious problem for the states involved. 23. Locke allows tacit consent at 113-122, in the case of people born into an already existing commonwealth. 24. D.L. Bland, "A Unified Theory of Civil-Military Relations," Armed Forces & Society 26, I (Fall 1999): 7-26, at p. 9. 25. He does say in 11 that reparation as opposed to punishment is only available to the wronged party.

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26. Williams, in Intemational Relations (p. 94), says, "Under natural law there is an obligation to come to the assistance of another individual threatened by breaches of the law. We might also see this as applying to states when one of their number is subject to aggression." Cox, in Locke on War and Peace (p. 150), says that the right to punish "lays the ground for the elaboration of the idea of collective security." Cox summarizes a Lockean just war doctrine on pages 154162. 27. See R.R. Conces, "Contract, Trust and Resistance in the Second Treatise," The Locke Newsletter 28 (1997): 117-133, and Cresswell, "'Ontological' Argument." 28. Obviously no claim is being made either way about the rightness or wrongness of the particular example, or whether the argument really applies in the recent situation in Iraq. The point is to show how a Lockean approach would have to go. Locke's philosophy has certainly been applied to the American Revolution, and while scholars may differ on the precise nature of his influence, there can be little doubt that the influence was there and was acknowledged. See A.P. Grimes, American Political Thought, rev. ed. (New York: Holt, Rinehart and Winston, 1960), especially pp. 7 7 97.) This paper does not defend Locke's notion of the Law of Nature, but merely points out what he thought its content was, and how that content can be applied to the legitimation of the use of force by a state. Janis, in Intemational Law, discusses the legal question of intervention in the "internal" affairs of another country on the ground of the nature of the regime in charge (p. 180f). 29. This has the consequence that the military cannot be "privatized." See Burk, "CivilMilitary Relations," on some of the difficulties posed by the complexity of today's .society and technology in clearly distinguishing the military and civilian spheres. Janowitz, in The Professional Soldier, recognized early on that technological advances have important consequences for the view of the military as a profession. 30. The need for such a transparent and impartial judicial process is regarded by Locke as one of the principal reasons for forming commonwealths and, in addition to the passages quoted later in the text, there are many passages in which he stresses people's tendency to be partial in their own case. See, for instance, 13, 87, 88, 90, 136. 31. Huntington, in The Soldier and the State (p. II), uses the phrase "management of violence." While violence often has a pejorative connotation, what he meant was presumably that the force must be disciplined and legitimate. Just as an airline employee has to be taught to be polite, even if firm, to an abusive customer; and just as the police have to restrain themselves in ways that lawbreakers might take advantage of; so a member of the armed forces must be trained to discipline the use of force.

32. It is not clear how Locke might treat the question of crimes against humanity. On the legal situation, see Janis, Intemational Law (pp. 245-249). For a survey of some of the conceptual problems in the notion of a war crime, see for instance S. Levinson, "Responsibility for Crimes of War," Philosophy and Public Affairs 2, 3 (1972): 244-273. This might cause a tension between regarding a soldier as a "means"a cog in a machineand as a human beingan "end" in the sense of Kant's ethical theory (see Regan, p. 18, and O'Neill, pp. 258-267, in Matters of Life and Death). In this respect a military society seems very different from civil society, needing

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teamwork, hierarchical arrangement, lack of civilian freedoms and a different legal system. 33. The role of the armed forces in internal matters is usually severely circumscribed. In New Zealand, the internal use of the armed forces can take place only if a state of emergency is declared; and the conditions under which it can take place are governed by a number of acts of parliament. The International Terrorism (Emergency Powers) Act, 1987 "made it the duty of the Commissioner of Police to inform the Prime Minister that emergency powers would be required to cope with an emergency situation involving intemational terrorism. The Prime Minister is then required to call a meeting of not less than three Ministers to determine whether or not the situation justifies the use of those emergency powers. Further the House of Representatives is required to extend those powers, and can revoke the emergency powers if required. In addition, both the Civil Defence Act 1983 and the Defence Act 1990 limit the circumstances and manner in which a state of emergency can be declared, and the powers granted to the parties involved." (R.M. Kennedy, "Constitutional Issues in the Control and Employment of New Zealand's Armed Forces," No 40 Staff course 1999, p. 23f.) And recently in Britain, tanks deployed to guard Heathrow Airport were under the command of the Metropolitan Police. 34. Cox, in Locke on War and Peace, is quite clear that this is unLockean: "There is, in other words, no suggestion in Locke that the attempt to partially introduce the techniques and institutions of civil government into relations among govemments would be of decisive importance" (p. 189). The reason is that no supranational body will have the power to enforce their decisions. States, of course, can amalgamate into larger commonwealths. Perhaps that is what the EU will eventually become, and Locke's view is compatible with world government. Cox, op cit, p. l90f, makes some suggestions about why that possibility might not appeal to him. 35. Burk, "Civil-Military Relations," pp. 20-23. 36. Janis, in International Law, takes the view that the "members of the European Economic Community plainly remain sovereign states and subjects of intemational law even though they have delegated certain important powers over their national economies to the Common Market" (p. 77). Whether that is still as true today as it was in 1993 is perhaps less clear. 37. See, for instance, the case of Michael New, described on p. 25 of C. Moskos, "Toward a Postmodem Military: The United States as a Paradigm," in The PostModem Military: Armed Forces After the Cold War, ed C. Moskos, J.A. Williams, and D.R. Segal (New York: Oxford University Press, 2000), 14-31. 38. Burk ("Civil-Military Relations," p. 23f) makes some tentative suggestions about a federal model, and recommends that we leam from early US theoristsbut that topic goes far beyond the examination of the Lockean model that I have been discussing in this paper. 39. The term "intemational community" may be less than helpful here. 40. V. Franke and L. Heinecken, in "Adjusting to Peace: Military Values in a CrossNational Comparison," Armed Forces & Society 27, 4 (Summer 2001): 567-595, compare attitudes toward peacekeeping found in military academies in the United

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States and South Africa. See also L.L. Miller, "Do Soldiers Hate Peacekeeping? The Case of Preventive Diplomacy Operations in Macedonia," Armed Forces & Society 23, 3 (Spring 1997): 415^50; L.L. Miller and C. Moskos, "Humanitarians or Warriors? Race, Gender and Combat Status in Operation Restore Hope," Armed Forces and Society 21, 3 (Summer 1995): 615-637; and E. Johansson, "The Role of Peacekeepers in the 1990s: Swedish Experience in UNPROFOR," Armed Forces and Society 23, 3 (Spring 1997): 451^66. Society's attitudes play an important part here. See Moskos, "Postmodem Military," p. 20, and M. Ignatieff, "Handcuffing the Military? Military Judgment, Rules of Engagement and Public Scmtiny," Military Ethics for the Expeditionary Era, ed. P. Mileham and L. Willett (London: Royal Institute for Intemational Affairs, 2001), chapter 4, pp. 25-41. 41. The connection between military activity based on security concems, and the environment is stressed by Gregory Foster, "Environmental Security: The Search for Strategic Legitimacy," Armed Forces & Society 27, 3 (Spring 2001): 373-395. 42. See the table on p. 15 of Moskos, "Postmodern Military."