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Legitimizing Force:A Lockean Account

M. J. CRESSWELL

A number of recent articles in Armed Forces & Society havestressed the need for a normative theory of civil-tnilitary relations.Thus Burk seeks "a normative theory that helps us to understand howcivil-military relations sustain and protect democratic values." AndCottley, Edmunds, and Forster argue that "there is a need for a moredeveloped, sophisticated, and explicitly normative conceptualization ofthe relationship between armed forces and political power in democra-cies. '" All these authors are keenly aware that the dangers facing adem ocratic society come from the lack of moral and political constrain tson what a state may legitimately do.^ The concern of the present paperis to examine how the work of John Locke (1632-1704) in the SecondTreatise of Government^ may be applied to the problem of establishingthe moral legitimacy of the armed forces in a civil state, and the m oralityand role of those who serve in them.''

Traditional political theories since the seventeenth century havebeen based on the idea of a collection of independent and autonomous"nation -states." Suppose we agree that morality does not in general ruleout the use of forc e.' W hat do we say about the use of force by a natio n-state? This depends on what we say about morality between states.Janis notes that for the purpose of international law a state is usuallydefined by four essential elements: "a defined territory, a permanentMax Cresswell obtained a BA and an MA from the University of New Zealand, andearned a PhD from the University of Manchester. Dr. Cresswell also holds a LitD from theVictoria University of Wellington, where he taught philosophy from 1963 to 1999. Hehas taught at the University of Massachusetts, the University of Califomia, and TexasA&M Universi ty, where he holds a continuing part-t ime appointment. His principalresearch interests are in logic, the philosophy of language, and the history of philosophy.


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population, a government, and a capacity to conduct internationalrelations."*

The first two of these, and arguably the third, involve whatphilosophers would call questions of factmatters which can be statedin purely descriptive terms. There is no moral or legal judgment inwhether the conditions listed might obtain. The third is a question of fact//"having a government means having a government which is in fact incontrol, whatever its legal or moral legitimacy, while the fourth seemsrather a legal consequence of being a state. On page 183, Janis po ints outthat some consider a state to exist only when it has been recognized assuch, while others assume that recognizing a state is only recognizing apreexisting fact. But whatever side we take, it seems that legal recogni-tion of a state does not of itself involve a judgment about its morallegitimacy. It is the question of where that legitimacy comes from towhich Locke's Second Treatise is attempting to provide an answer.''

The State of NatureThomas Hobbes (1588-1677) assumes that if there is no politicalauthority, then everyone is in a "state of nature," which (for Hobbes) isa state in which all are at war with each other.* When people cometogether to form a state (or commonwealth, as it is often called), theymust agree to give a "sovereign" the power to do what he (or she) w ill,and thereby provide the ability to enforce morality.' Subsequent socialcontract theorists were concerned to limit the sovereign's power. Theimportance of social contract theory in determining society's attitude toa standing army is well recognized, most notably in the early history ofthe United States of America, and it is not necessary to revisit this well-traversed ground. What seems less noticed is the extent to which thealmost axiomatic theory of government found in the Second Treatiseenables the deduction of principles applying to the appropriate use ofarmed force among nations.'" Given the recognized centrality of Lockein the history of po litical thought, it is somew hat surprising tha t so littlework has been done on applying his political philosophy to internationalrelations."For Locke, unlike Hobbes, people living in a state of nature are


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is often called "libertarianism,'"'' and this might be argued to be themorality that we (at least in the Western world) live by.'' A distinctionhighly important to the question of the moral legitimation of the use offorce is that between enforceable morality and non-enforceable moral-ity. Libertarianism as a moral theory holds that you can do what you likewith your own property, and others may do the same with theirs, buthave no claim on your p roperty. Thus a wealthy person has no obligationto assist a starving beggar, even though such people may be praised ifthey do. As a corollary, it would be unjust to compel anyone to actgenerously.'* Property, for Locke, is understood very widely to includeyour own person and your labor (27). If you interfere with someone'srights to their own property, then you transgress the Law of Nature, andthe Law of Nature itself permits anyone to punish transgressors "to sucha degree as may hinder its violation" (7). Although he will not be drawnto being m ore specific about the level of punishm ent that is appropriate,Locke says in 12 that "Each transgression may be punished to thatdegree, and with so much severity, as will suffice to make it an illbargain to the offender, give him cause to repent, and terrify others fromdoing the like."

These are the rights we have in a state of nature. But Locke, likeHobbes, believes that civilization depends on citizens agreeing thatwithin certain limitsthey give up their rights to the state." That youcannot 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 toindulge in vendettas and private violence, and thus in the end all arehapp ier. This utilitarian justification of Lockean political theory em ergesquite clearly in 123:If man in the state of nature be so free, as has been said; if hebe absolute lord of his own person and possessions, equal to thegreatest, and subject to no body, why will he part with hisfreedom? Why will he give up this empire, and subject himselfto the dominion and controul of any other power? To which itis obvious to answer, that though in the state of nature he hathsuch a right, yet the enjoyment of it is very uncertain, andconstantly exposed to the invasion of others: for all being kingsas much as he, every man his equal, and the greater part no


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

The Social ContractIn Locke's account the Law of Nature governs people until theyagree to bind themselves together into a commonwealth. The membersof such a commonwealth no longer have a status in themselves aspolitical beings under the Law of Nature. Given that the individualmembers have no status according to the Law of Nature, they cannot besaid to be in a state of nature. A state of nature on this account issomething which can hold only between basic political entities. Thesemay be ordinary people, as when we are in the state of nature thatprecedes the formation of political society, or they may be what Lockecalls a comm onwealth (133). Locke also uses the term "body politick."Locke writes (95):When any number of men have so consented to make onecommunity or government, they are thereby presently incorpo-rated, and make one body politick, wherein the majority have aright to act and conclude the rest.

An earlier paper'* argues that we should take very seriously the newontological category of a body politick. For what it means is that thestate of nature is not just a condition that has only an historicalconnection with political authority in today's world, but is a conditionin which certain entities currently exist. No longer, to be sure, individualpeople, but independent nation-states. It is, perhaps, a failure to graspthis point that explains.the fact (noted above) that so little work has beendone on the consequences of Locke's political theory for internationalrelations, and particularly for the use of force by nation-s tates. For if thestatus of a commonwealth as an entity governed by the Law of Natureis not appreciated, then neither will the fact that the Lockean model has


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every man naturally had before he entered into society. Forthough in a commonwealth the members of it are distinctpersons, still, in reference to one another, and, as such, aregoverned by the laws of the society, yet, in reference to the restof mankind, they make one body, which is, as every memberof it before was, still in the state of Nature with the rest ofmankind, so that the controversies that happen between anyman of the society with those that are out of it are managed bythe public, and an injury done to a member of their bodyengages the whole in the reparation of it. So that under thisconsideration the whole community is one body in the state ofNature in respect of all other states or persons out of its com-munity.

Simmons" uses passages like this to argue for a relational conceptof a state of nature:A person (A) is in a state of nature relative to another (B) ifand only if A has not voluntarily agreed to join (or is no longera member of) a legitimate political community of which B is amember.

Simmons has rightly discerned that the essential feature of a state ofnature is the lack of a common authority (apart from God). But by takingLocke's ontology seriously, we can argue that being in a state of naturemeans not being bound by any authority apart from God; and the lastsentence of 145 seems to understand commonwealths to be in such astate of nature. Further, in 183 we read, "and all commonwealths arein the state of nature one with another." In consequence common-wealths, independent princes (14), and any individuals, if they have nocommon authority apart from God, must be governed by the Law ofNature.^" We now have a Lockean justification of international law. Itis the same Law of Nature as the law that governs the original state ofnature before commonwealths are formed, and which justifies theformation of commonwealths in the first place. Since all common-wealths are in a state of nature, they can legitimately act amongthemselves only in accord with the Law of Nature.


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takes place, specifically (128) the right to self-preservation (129) andthe right to punish transgressors ( 130). It is worth commenting on thegiving up of the right of self-preservation, since that would tend tosuggest 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 self-preservation in civil society, though of course this is only because there isnow an obligation on society to enforce the right to self-preservation whichwe all have in a state of nature. Be that as it may, it is important to see thatthe right of a state to apply force is deduced from the rights individualshave in a state of nature, not from rights such as the right to self-defensethat they may have under the civil law^' of the commonwealth.

One key point in Lockean political theory is that the powers of thecommonwealth are limited to those had by its people when they were ina state of nature. They cannot hand over rights they did not have, andin particular they cannot (as Hobbes had thought) hand over absolutepower to a sovereign. Locke's theory was held to justify the EnglishRevolution of 1689, according to which the king ruled with the consentof Parliament, and not by divine right.^^ A second, equally important,point is that the commonwealth comes into existence by agreement, andthat consent in one form or another" is crucial to Locke's politicaltheory. Consent is important as a precondition for respect. Unlesscitizens respect their political system, it is unlikely to function effec-tively. The need for respect for the "principles and norms" of a "regime"has recently been stressed as a condition for the success of "the sharingof responsibility between civilian leaders and military officers" whichis needed to guarantee civilian control of the military.^''

The Right to Make WarFrom a Lockean point of view, the rightness or wrongness of a

state's engaging in war is determined by the Law of Nature. The Lawof Nature, although divinely ordained, has no courts to enforce itsjudgments. Any country has the right to go to war against anothercountry if that other country has transgressed. States can bring moralarguments for or against their position, or they can achieve a solutionvia diplomatic negotiation. In the last resort, force can be used. The


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Utilitarian underpinnings of his view of the Law of Nature. Transgres-sions of the Law of Nature occur when someone takes what is not theirs.In terms of international relations, this would happen if a country wereinvaded without having itself contravened the Law of Nature. Lockedoes 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 thatyour right to punish can be given to another. This would immediatelygive a Lockean justification, not only of resisting invasion, but ofcoming to the aid of a wronged country by invading the aggressor.^"^

The Lockean perspective makes clear why a nation may not interferein the internal affairs of another country. The members of a common-wealth are not themselves political entities living under the Law ofNature; they are living under the laws of the commonwealth, andtherefore their actions within that commonwealth are not subject to theLaw of Nature. Does this mean that citizens in a country with an unjustregime have no redress in Lockean theory? This area of Locke's politicalphilosophy has been well traversed, since it concerns the right torevolution. What happens here may be illustrated by looking at how onemight justify the removal of Saddam Hussein. Locke's political theoryis often held to be a theory in which the rulers hold their positions in trustto the pe op le." W hen a ruler betrays his (or her) trust, then presumablythey are in a state of war with respect to the comm onwealth of which theywere once a member, and relations between them and the com monw ealthare governed by the Law of Nature (207). This would give anothernation the right to intervene. Saddam takes over Iraq, and acts in a waythat betrays the trust of its citizens. Although a commonwealth couldnot, on Lockean principles, intervene in the internal affairs of anothercommonwealth, this would not be such an intervention since Saddamwould no longer be internal to the commonwealth (Iraq) and is in a stateof war relative to it. Since Saddam is no longer internal to Iraq, re lationsbetween him and Iraq are not internal to Iraq, and so are governed bythe Law of Nature. Therefore the United States, as an entity governedby the Law of Nature, can punish Saddam by the right that anycommonwealth has over other commonwealths in accordance with theLaw of Nature.^^

Lockean theory provides a clear justification for at least two of theprinciples of a just war. Since the right to punish under the Law of


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

The Military EthosIf we take the Lockean idea, first that it is right to punish transgres-sors of the Law of Nature, and second that this right in a comm onwealthis not available to private citizens, then the state, and only the state, hasauthority to maintain organizations that are needed to apply force when

it is justified.^' One important reason for forming a commonwealth isthat private individuals only too easily succumb to partiality andprejudice in judging how to punish wrongs against themselves.^" Becauseindividuals in a state of nature are partial in their own case, and thereforeprejudiced when they are their own judges, the necessity for impartialityapplies crucially to those state institutions charged with executing force.Institutions such as the police and the armed forces are charged withprotecting the rights of others. In Lockean theory, the right to use forcehas been given up to the state. Given that a reason for formingcommonwealths is to avoid partiality, it follows that those charged withusing force in the service of the state must form a body professionallytrained in the impartial and reasoned application of force. The Law ofNature demands that punishment be appropriate, and judgments ofappropriateness demand a high order of moral and technical skill.^'

The internal use of force in a state is by means of the police, and theexternal use by the armed forces. Both are that branch of the executivecharged with enforcing the legitimate policy of the comm onw ealth. Thecommonwealth has become an entity under the Law of Nature, and itsrelations with other commonwealths are governed by that law. Itsinternal relations are governed by laws agreed by the commonwealth.What this means is that if a comm onwealth uses force to settle dispu tes,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 lawof the comm onwealth. The m orality of external dealings is governed bythe Law of Nature. Only the state can wage war, for the right to punish


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of the commonwealth itself. As acts of the commonwealth, they arejudged in accord with the Law of Nature. How ever, as acts of individualsoldiers, they are judged (presumably) according to the rules that thestate sets for them. This distinction enables us to approach one versionof our original question. What are we to say of the heroic actions of asoldier in an unjust war? The Lockean perspective is quite clear: theinjustice 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 comm onwealth.Thus an individual sold ier's actions are to be judged in terms of serviceto the stateindependently of whether the state is wrong or right whenjudged 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 statusof the Law of Nature is another matter:For though the Law of Nature be plain and intelligible to allrational creatures; yet men, being biased by their interest, aswell as ignorant for want of the study of it, are not apt to allowof it as a law binding to them in the application of it to theirparticular cases (124).

This deficiency is part of what necessitates the laws of a civilcommunity. Locke states that the laws of the commonwealth must beclear and public:And so whoever has the legislative or supreme power of anycommonwealth is bound to govern by established standing laws,promulgated and known to the people, and not by extemporarydecrees; by indifferent and upright judges, who are to decidecontroversies by those laws; and to employ the force of thecommunity at home only in the execution of such laws, orabroad to prevent or redress foreign injuries, and secure thecommunity from inroads and invasion (131).

The epistemic difference between these two bodies of law hasimportant procedural consequences. In a democracy the police and otherinternal enforcement agencies operate under the laws of the common-


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serve the state in dealings that are governed by the Law of Nature againstthose with whom the commonw ealth may be in a state of war (131) andoften in situations in which any civil law has ceased to operate." Eventhough individual soldiers are not in a state of nature, the actions theyare being asked to perform in a combat situation have to be justified, asactions of the commonwealth, by the Law of Nature. Because the Lawof Nature is not codified the legitimacy of an action cannot beconstituted, as in a legal system, by following set procedures inaccordance with known laws of the commonwealth. The legitimationhas to take place by ensuring the integrity of the command structure , andtherefore depends on the moral and professional integrity of individua ls.The action of a soldier in battle is legitimate if it is done in response toa legitimate comm and. Those in command must know, and often decidein seconds, what it is legitimate to do; and those under their commandmust trust them to know this, so that they can obey orders instantly. Thepersonal qualities needed to guarantee this trust require a "virtue eth ics"for members of the armed forces.

Nation-States and Supranational BodiesThe Lockean position envisages independent states, and may be ananachronistic way of looking at things in its dichotomy between twoextremes: the Law of Nature and the laws of the commonwealth.Although for Locke nation-states have rights to intervene in certaincircumstances in the affairs of others, they are all under the Law ofNature. The problem today, however, is that there are a number ofintermediate positions.^'' Burk takes transnational relations to revealweaknesses in both liberal and civic-republican theories.^' If one askswhether the Lockean model, based on the autonomy of nation-states,may prove inadequate to today's world, it is tempting to give a "yes andno" answer. Take the case of the European Union (EU). In Lockeanterms there would seem to be conceptual confusion about whether theEU is a kind of super commonwealth, with laws that operate somewhatas federal law in the United States, or whether the authority of the EUis derivative from the more basic authority of the nation-states that areits members. If a new EU regulation is promulgated, then the United


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relations between its members are no longer governed by the Law ofNature, and so there need be no prohibition against interference in theinternal affairs of another country within the EU.-"^ A defender of Lockewould say that the conceptual confusion is not in the model, but in arefusal by mem ber states of the EU to accept that they cannot have it bothways.Even looser is the United Nations (UN). While there are variousinternational regulatory bodies, it is unclear how much authority theyhave, since UN resolutions require ratification by the member states.Certainly a UN force has to use the agencies of particular states. In factit may be said that one of the problems for traditional political theoryis how to locate activities such as peacekeeping operations in a founda-tional account of the role of the armed forces, particularly in terms ofthe question of the authority according to which they are acting. ^ Lockeadmits treaties between independent states, but the obligations to keepthese, and the sanctions that can be applied if they are not kept, are allgoverned by the Law of Nature. Still, Locke's arguments against thedanger of appealing to the Law of Nature to favor your own positionwould seem to apply with even greater force to the actions of nation-states themselves.'*Peacekeeping is one practical area in which it is vital to become clearabout the connection between nation-states and supranational bodies. Ifthe distinction made above between the police and the armed forces isto be maintained, it is important for a peacekeeping mission under thecontrol of an international body to know whether it is to be understoodas a police operationdesigned for maintaining the stability andintegrity of a supracommonwealthor whether it is operating m ore likea combat mission under the authority of the separate nation-states thatare providing its forces.'' Several recent studies have revealed anambivalence in military attitudes to peacekeeping,"" so the conceptualconfusion here is by no means theoretical only. Another area of concemis that of the environment. Locke's theory of property clearly envisagesa world in which there is plenty for all (33, 36), and therefore whatGod has provided is there for the taking.""More difficult for the Lockean model is the problem of subnationalthreats. Moskos lists ethnic violence and terrorism as examples of the


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have removed them from civil society, and have laid open the way totreat them under the Law of Nature. If so, it is important to distinguishthem from ordinary cr iminals .

ConclusionI 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 ina way that al lows answ ers to be given to a num ber of imp ortant ques tionsconcerning the legit imacy and role of the mili tary. Specif ically, I haveshown how the model enables us to draw the following conclusions.

1. The Law of Nature concerns the protection of property, andtransgressions occur when someone takes what is not theirs. TheLaw of Nature gives every entity governed by it the right topunish transgressors.

2. The authority of the commonwealth to punish transgressors isderived (via a social contract) from the right of individuals underthe Law of Nature. In the formation of the commonwealth, thatright has been given up by the members of the commonwealth tothe commonwealth itself. Therefore the armed forces can only beused by the authority of the civilian state, whose authority derivesfrom the people.

3 . The state's internal dealings are governed by the laws of thecommonwealth, but the state's extemal dealings are govemed bythe Law of Nature. The legitimacy of going to war is therefore aquestion of whether the state is acting in accord with the Law ofNature.

4 . Because the right to punish transgressors has been given to thestate, the punishment of transgressors is now undertaken by spe-cialized authorities within the state, most importantly the policeand the armed forces. The police operate intemally and the armedforces operate extemally. Because these bodies are charged withthis function, they each form a profession with special skills andits own ethos. Its essence is to avoid the abuses caused when eachperson is a "judge in his own case."


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6. The Law of Nature does not provide the precise content of therules applicable to any particular external military operation. Inmost cases, legitimacy has to be constituted by a valid chain ofcommand. This requires the integrity of members of the com-mand chain, and so necessitates personal loyalty on the basis ofthat integrity. This leads to a virtue ethics for military personnel.

7. The Lockean model works well on the assumption of a world ofautonomous nation-states, but may be less successful in today'sglobal community.The Lockean account will not in itself provide a complete basis for

military morality. For it requires that we have moral intuitions abouthow individuals are permitted to behave in the way of applying forceagainst others when there is no competent authority under which they areliving. Locke's own theory appears to be a kind of libertarianism, andI have conceded that he offers little by way of defending that moraltheory. Obviously you might get different results if you begin withdifferent moral intuitions about individuals in a state of nature. What theLockean account does is show how these intuitions can be translated intoprinciples that apply to the activities of a commonwealth. This does notmean that the moral consequences of conclusions 1-7 require theLockean model. In fact, their practical implications could be widelyaccepted by advocates of many diverse theoretical backgrounds; andmay indeed constitute a set of adequacy criteria for any derivation of thescope and limits of the use of force by a state. Nevertheless, the Lockeanperspective does provide a framework which, if it does not mechanicallysupply answers to many of the difficult value questions that ariseregarding the armed forces, at least enables the questions to be ap-proached from a unified theoretical basis rather than as a collection ofunrelated issues.

NotesAuthor's Note: This paper was written while under contract to theNew Zealand Army Military Studies Institute, for teaching a course oncivil-military relations for the Massey University's Centre for Defence


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& Society for enabling me to make numerous improvements on anearlier draft.1. J. Burk, "Theo ries of Dem ocratie Civil-Military Relatio ns," Armed Forces & Society

29 , 1 (Fall 2002): 7-29, at p. 10; A. Cottley, T. Edmunds, and A. Forster, "TheSecond Generation Problematic; Rethinking Democracy and Civil-Mili tary Rela-t ions," Armed Forces and Society 29, 1 (Fall 2002): 31-56, a t p. 35.

2 . Cottley, Edmunds, and Forster, in "Rethinking Democracy," p. 39, use J.S. Mill 'sphrase "tyranny of the majority" {On Liberty) to refer to this danger. Burk, in "Civil-Military Relations," p. 10, points out that a "key concem for liberal theorists is howto ensure that the power of the sovereign is not abused by overturning the rights andliberties of the citizens."

3. Both treatises by Locke are found in P. Laslett (ed.). Two Treatises of Government(Cambridge: Cambridge Universi ty Press, 1960). The Second Treatise is in TheSecond Treatise of Government: an Essay Concerning the True Original, Extent andEnd of Civil Government; and, A Letter Concerning Toleration, edited with a revisedintroduction by J.W. Gough (Oxford: Blackwell, 1976).

4 . The purpose of this paper is limited. It does not pretend to argue that only a Lockeantheory can answer the hard questions of military morality, though the reason whythe Lockean answers can seem like common sense may well be because they haveentered the basis of our tradition of thinking about these issues. Of course you donot have to have a theoretical framework in order to see that certain answers work inpractice. But it is always salutary to remind those who think that they are notassuming any framework that they are almost certainly working with one that isunacknowledged, 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 ofgetting from the morality of individuals to the morality of states can be illustrated bya simple example. The least contentious situations in which the use of force by astate is held to be justifie d are cases in wh ich force is used in defence again stinvasion; and in the literature on the legitimation of force and violence the justifica-tion of the use of armed force in such a situation is often based on the right ofindividual self-defense. Thus R.K. Fullwinder ("War and Innocence," Philosophyand Public Affairs 5, 1 (19 75): 90- 96 ) attempts to find a method of distinguishingbetween combatants and noncombatants in a way that makes it legitimate to harmthe former but not the latter. He does it by postulating that killing in war is killing inself-defense, and that the enemy combatant is part of the attacking force. Theproblem is that the situation of a soldier defending a country against invasion is notmeeting a threat to the individual soldier; it is a part of the response to a threat to thestate.


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6. M.W . Janis, An Introduction to Intemational Law, 2nd ed. (Boston, MA: Little,Brown, 1993), p. 276

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 basicmorality between individuals. This paper ^is looking at a Lockean justification oflegitimacy, and such a justification derives political legitimacy from ind ividual m o-rality. 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 isan entity prior to and more important than its citizens. Alfred C. Stepan, in ArguingComparative Politics (Oxford: Oxford University Press, 2001, pp. 57-72), pointsout that the organic model should not be restricted to Hegel's views and Fascisttotalitarianism. He distinguishes "organic statism" from Marxism, though both mod-els deny the primacy of the individual. Burk ("Civil-military relations," p. 9) distin-guishes between liberal theories of the kind discussed by Samuel Huntington in TheSoldier and the State (Cambridge, MA: Harvard University Press, 1957) and "civicrepublican" theories, of the kind discussed by M.M. Janowitz in The ProfessionalSoldier: A Social and Political Portrait (Giencoe, IL: The Free Press, 1960). Whilecivic republican theories may not quite be organic theories, they have this in com-mon: that the citizen-soldier concept attributes value to an individual in terms ofbeing a citizen. (Burk's criticism of both theories is that they cannot adequatelycome to terms with today's intemational situation. This question is discussed brieflyin 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 thedescrip tive legal definition of a state could b e justified, for the question wou ld turnon whether a state described in those terms was in reality sufficient of an organicunity to be a moral being. Stepan, in Comparative Politics (p. 62), says, "However itis impo rtant to understand that a jus t and stable organ ic order is not necessarily to beequated with the established order."

8. Hobb es seems to assum e that there can be no morality between states: "W here thereis no common Power, there is no Law: where no Law no Injustice." (Hobbes,Leviathan, ed. Richard Tuck [C ambridge: Cam bridge U niversity Press, 1991], chap-ter xiii, p. 90). This may also have been the view of Niccolo Machiavelli (1469-1527). Machiavelli 's treatise The Prince is an advice manual for attaining and hold-ing on to power, and his discussion of the virtues that are to be cultivated by aprince focuses on how the prince is perceived.

9. Hobbes' theory gives a sovereign absolute power. In the seventeenth century, thealternative way of supporting the view that the sovereign has absolute authority wasthe "divine right" theory, by which kings ruled according to the will of God, andthus were not responsible to the will or consent of their subjects. Although suchtheories are not held today, they are analogous to organic theories in that a divinely


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Torieswho advocated the divine right theorynor with the Whigswho advo-cated 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 Universi ty Press, 1994, pp. 226-251)protests that it is anachronistic to present Locke's Second Treatise as an abstractpolitical theory from which may be derived some valid and universal principles ofgovernm ent. Un doubtedly Locke had a political agenda. It was either to justify inadv anc e the Eng lish R evo lution , or to justify it onc e it had hap pen ed, and inparticular to argue against divine-right theories in the form presented by RobertFilmer. Perhaps also parts of Lock e's w ork we re designed to justify the colonizationof America. Nevertheless, it is certainly not out of keeping with the spirit of theseventeenth century that Locke should want the principles of the Treatise shown tobe validly derivable from universal truths, in much the way that in the EssayConcerning Human Understanding (ed. P.H. Nidditch, Oxford, Clarendon Press,1975) he wants to derive all knowledge from its basis in experience. See alsoRichard 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 origina-tors of the theory of nation-states, but only mentions Locke (p. 241) in the contextof human rights. Admittedly the principal purpose of the Second Treatise is toprevent the oppression of a people by its government, and the bulk of scholarshipon Locke's political philosophy rightly focuses on this aspect, but his theory hasconsequences in other areas. One of the few discussions in recent years of a Lockeantheory of intemational relations is in chapter 7 of Howard Williams, InternationalRelations 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 mentionedby Will iams, seems to be Cox's Locke on War and Peace. Cox also appears to havefound that this aspect of Locke's theory has been neglected. On p. xv he says, "It istrue that Locke is not usually thought of as having had any particular concem withthe problem of foreign relations."

12. The term Law of Nature has been capitalized throughout to indicate whatever Lockeunderstands by the phrase.

13 . The idea that there is such a law goes back at least to the Middle Ages (perhaps as farback as Cicero in Roman times, or even to Aristotle.) Among Christian natural lawtheorists, 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. Thequestions of Locke's place in the natural law tradition, and the originality of hiscontributions, are unquestionably important, and some discussion of Locke in thiscontext may be found in Thomas L. Pangle and Peter J. Ahrensdorf, Justice AmongNations: On the Moral Basis of Power and Peace (Lawrence, KS: University Press ofKansas, 1999). Cox, in Locke on War and Peace (pp. 140-147), discusses differ-


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14. See Regan's introduction to Matters of Life and Death, p. 22. Libertarianism enterscurrent discussions of morality in connection with such issues as third-world povertyand hunger. For an example, see O. O'Neill, "Ending World Hunger," in Matters ofLife and Death, p. 270.

15. Locke's discussion of morality is usually considered the weak point in his philoso-phy. See J.B. Schneewind, "Locke's Moral Philosophy," The Cambridge Companionto 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 giveslittle to justify its moral c laims , and for that reason a Locke an a ccoun t of legitim iz-ing 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 tohis assumption that our survival depends on the use we make of nature. Thisgrounds Locke's discussion of property in chapter V of the Treatise and forms thebasis 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 theconsent of all men, which yet no man ever said were to be punished by the magis-trate." Presumably the argument here is that, in the long run, a settled society based onthe sanctity of property leaves everyone better off. The turbulent history of seven-teenth-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 thefact 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," LockeStudies 1 (2001): 159-172 .

19. A.J. Simmons, The Lockean Theory of Rights (Princeton, NJ: Princeton UniversityPress, 1992), p. 129, n 19.

2 0 . This point is elaborated in Cox, Locke on War and Peace, pp. 137-139.2 1 . 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 indeedmilitary law.

2 2 . The limits of the com mo nw ealth's pow er provide a justification for civil rights andliberties. In "Rethinking Democracy," Cottley, Edmunds, and Forster point out thatone of the problems in post-Communist Eastem Europe is that under the Sovietsystem there was subordination of the military to the civil power, but little demo-cratic control and restraint of such power. They consider that to be a serious prob-lem for the states involved.

2 3 . Locke allows tacit consent at 113-122, in the case of people born into an alreadyexist ing commonwealth.


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2 6 . Williams, in Intemational Relations (p. 94), says, "Under natural law there is anobligation to come to the assistance of another individual threatened by breaches ofthe law. We might also see this as applying to states when one of their number issubject to aggression." Cox, in Locke on War and Peace (p. 150), says that the rightto 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 LockeNewsletter 28 (1997): 117-133, and Cresswell , " 'Ontological ' Argument."

2 8 . Obviously no claim is being made either way about the rightness or wrongness ofthe particular example, or whether the argument really applies in the recent situationin Iraq. The point is to show how a Lockean approach would have to go. Locke'sphilosophy has certainly been applied to the American Revolution, and while schol-ars may differ on the precise nature of his influence, there can be little doubt that theinfluence was there and was acknowledged. See A.P. Grimes, American PoliticalThought, rev. ed. (New York: Holt, Rinehart and Wins ton, 1960), especially pp. 7 7 -97.) This paper does not defend Locke's notion of the Law of Nature, but merelypoints out what he thought its content was, and how that content can be applied tothe legitimation of the use of force by a state. Janis, in Intemational Law, discussesthe legal question of intervention in the "internal" affairs of another country on theground of the nature of the regime in charge (p. 180f).

2 9 . This has the consequence that the military cannot be "privatized." See Burk, "Civil-Military 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 ad-vances have important consequences for the view of the military as a profession.

3 0 . The need for such a transparent and impartial judicial process is regarded by Lockeas one of the principal reasons for forming commonwealths and, in addition to thepassages quoted later in the text, there are many passages in which he stressespeople's tendency to be partial in their own case. See, for instance, 13, 87, 88, 90,136.

3 1 . Huntington, in The Soldier and the State (p. II) , uses the phrase "management ofviolence." While violence often has a pejorative connotation, what he meant waspresumably that the force must be disciplined and legitimate. Just as an airlineemployee has to be taught to be polite, even if firm, to an abusive customer; and justas the police have to restrain themselves in ways that lawbreakers might take advan-tage of; so a member of the armed forces must be trained to discipline the use offorce.

3 2 . It is not clear how Locke might treat the question of crimes against humanity. On thelegal situation, see Janis, Intemational Law (pp. 245-249). For a survey of some of


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teamwork, hierarchical arrangement, lack of civilian freedoms and a different legalsystem.

3 3 . The role of the armed forces in internal matters is usually severely circumscribed. InNew Zealand, the internal use of the armed forces can take place only if a state ofemergency is declared; and the conditions under which it can take place are gov-erned by a number of acts of parliament. The International Terrorism (EmergencyPowers) Act, 1987 "made it the duty of the Commissioner of Police to inform thePrime Minister that emergency powers would be required to cope with an emer-gency situation involving intemational terrorism. The Prime Minister is then re-quired to call a meeting of not less than three Ministers to determine whether or notthe situation justifies the use of those emergency powers. Further the House ofRepresentatives is required to extend those powers, and can revoke the emergencypowers if required. In addition, both the Civil Defence Act 1983 and the DefenceAct 1990 limit the circumstances and manner in which a state of emergency can bedeclared, and the powers granted to the parties involved." (R.M. Kennedy, "Consti-tutional 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 guardHeathrow Airport were under the command of the Metropolitan Police.

3 4 . Cox, in Locke on War and Peace, is quite clear that this is unLockean: "There is, inother words, no suggestion in Locke that the attempt to partially introduce thetechniques and institutions of civil government into relations among govemmentswould be of decisive importance" (p. 189). The reason is that no supranational bodywill have the power to enforce their decisions. States, of course, can amalgamate intolarger commonwealths. Perhaps that is what the EU will eventually become, andLocke's view is compatible with world government. Cox, op cit, p. l90f, makessome suggestions about why that possibility might not appeal to him.

3 5 . Burk, "Civil-Military Relations," pp. 2 0 - 2 3 .3 6 . Janis, in International Law, takes the view that the "members of the European

Economic Community plainly remain sovereign states and subjects of intemationallaw even though they have delegated certain important powers over their nationaleconomies to the Common Market" (p. 77). Whether that is still as true today as itwas in 1993 is perhaps less clear.

3 7 . 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 Post-Modem 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 .

3 8 . Burk ("Civil-Military Relations," p. 23f) makes some tentative suggestions about afederal model, and recommends that we leam from early US theoristsbut thattopic goes far beyond the examination of the Lockean model that I have beendiscussing in this paper.


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States and South Africa. See also L.L. Miller, "Do Soldiers Hate Peacekeeping? TheCase of Preventive Diplomacy Operations in Macedonia," Armed Forces & Society23 , 3 (Spring 1997): 415^50; L.L. Miller and C. Moskos, "Humanitarians orWarriors? Race, Gender and Combat Status in Operation Restore Hope," ArmedForces and Society 21, 3 (Summer 1995): 615-637; and E. Johansson, "The Role ofPeacekeepers in the 1990s: Swedish Experience in UNPROFOR," Armed Forces andSociety 23, 3 (Spring 1997): 451^66. Society's attitudes play an important parthere. See Moskos, "Postmodem Military," p. 20, and M. Ignatieff, "Handcuffing theMilitary? Military Judgment, Rules of Engagement and Public Scmtiny," MilitaryEthics for the Expeditionary Era, ed. P. Mileham and L. Willett (London: RoyalInstitute for Intemational Affairs, 2001), chapter 4, pp. 25-41.

41. The connection between military activity based on security concems, and the envi-ronment is stressed by Gregory Foster, "Environmental Security: The Search forStrategic Legitimacy," Armed Forces & Society 27, 3 (Spring 2001): 373-395.

42. See the table on p. 15 of Moskos, "Postmodern Military."


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