(Part V of this series)
To minimize repetition of the same criticism, I’ll make the sincerest effort to give any chapters hence in the Second Treatise the most charitable interpretation I can, granting Locke, for example, his deontological terms as shorthand for a consequentialist argument. Where he undergirds his argument in the “law of nature,” we may think of this as the recognition that for those who value a flourishing society for themselves and for others, adherence to the ethics he describes is imperative.
That said, picking up where we left off in Chapter 2, Locke contends that the law should be enforced equally upon all individuals who transgress it, and it ought be the people who collectively execute that law — as opposed to a monarch or aristocracy imposing laws to restrict the commoners. To his credit, as much as I have picked apart Locke’s arguments so far, this proposal and the ones that follow it are agreeable. He acknowledges that the primary role of justice, far from sheer vengeance, is the rehabilitation of criminals and the deterrence of further crime. This constitutes a reasonable exception to the rule of no harm that a Locke had earlier endorsed, as in practice we find that the force employed by the justice system is usually (but not always) more productive and justified than criminal force.
Locke also makes the overlooked but important point that besides the administration of justice to the criminal, the justice system carries the other responsibility of ensuring the restoration of the victim’s well-being (as much as is feasible). As citizens comply with the laws and taxes binding on all in the community, it stands to reason from the utilitarian perspective that any who sustain significant suffering in this community through no fault of their own (but that of others) should be able to have these damages repaired. The system by which any society does this is bound to be imperfect, but it’s a crucial fundamental of societal structure that deserves the attention Locke gives it.
As a parenthetical note, I should mention that if, again, most of this seems obvious, it probably is — but Locke’s (and our) purpose here is to build up, from our most honest philosophical starting points, the necessary conclusions in the study of societal protection of rights. If these conclusions happen to closely match what we already believe, provided we have critically thought these matters through and not succumbed to bias, this should tell us that conventional wisdom does indeed have some basis in reality. Where it does not, naturally, is the interesting part, and that’s where Locke’s ideas get revolutionary. This isn’t to say all answers are to be expected from serious sociological thought (rendering the endeavor as futile as the unfalsifiable theories of, say, Freud), but rather to admit that the reasonable answers do not discriminate based on what is popular.
Though it is not central to his treatise, Locke takes his endorsement of (at least as far as we can infer, unless he is — improbably so from his words — attempting a description of the origins of ideas about justice, not a prescription of them) justice against criminals to something of an extreme:
“[A]nd thus it is, that every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, which no reparation can compensate, by the example of the punishment that attends it from every body, and also to secure men from the attempts of a criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a [tiger], one of those wild savage beasts, with whom men can have no society nor security: and upon this is grounded that great law of nature, Whoso sheddeth man’s blood, by man shall his blood be shed.”
— John Locke, Second Treatise on Civil Government, Chapter 2
From the bolded phrase, it’s clear that Locke sees the death penalty as, at least partly, the logical consequence of murder’s being a specially irreparable crime. Such a topic warrants multiple posts of its own someday, but for now it’s sufficient to note a fact that stands independent of whether the reader defends capital punishment in any circumstances. His hypocrisy is glaring; if murder’s due justice is proportional to its inability to rectify for the murdered person him/herself, surely we ought to be especially cautious when considering the ethics of delivering a punishment that itself can’t be reversed. The miscarriage of justice is just as bad as any comparable crime inflicted upon the innocent, so even if killing murderers as Locke recommends is just, few moral duties could weigh more heavily on our justice system’s shoulders than that of ensuring that those killed by the state are in fact guilty.