In the first two sections of Chapter XVI of John Locke’s 2d Treatise on Government: Of Civil Government, “Of Conquest,” he makes the easy case that “An Unjust War Cannot Win Any True Right to Rule,” as I wrote about two weeks ago. In the remainder of Chapter XVI, John Locke makes the more complicated case that a just war cannot make it right to govern without the consent of the governed or to dispossess those in conquered territory.
This puts John Locke on the other side of the argument from Bibi Netanyahu. Bibi hopes to have his coalition prevail again so he can be the Prime Minister of Israel for the fifth time. If he gets a fifth term, he says he will apply Israeli sovereignty to big chunks of the West Bank, to bit a little Israeli settlements that are now there. Bibi’s justification is especially interesting. Felicia Schwartz reports this in her April 6, 2019 Wall Street Journal article “Netanyahu Says He Will Extend Israeli Sovereignty Over West Bank If Re-Elected”:
In recent weeks, Mr. Netanyahu has become more strident in speaking about lands seized in the 1967 war, saying territory taken in a defensive war need not be returned.
This makes it sound as if states own territory that is, in fact, land owned by people—people whose consent must be obtained to make governing them legitimate.
To be clear, John Locke recognizes the virtue of recognizing a status quo that keeps conflict down. But if conflict is unavoidable—as it is in a defensive war—and previous political arrangements fall apart in some region, or need to be deconstructed because they led to aggression, then it is reasonable for a government that is still intact or a political entrepreneur to seek the consent of those in the area where previous political arrangements have fallen apart. Thus, Israel could legitimately have tried to win the hearts and minds of those resident in the West Bank and Gaza to become part of Israel. Alternatively, it could have tried to encourage a political entrepreneur to organize the West Bank and Gaza in a way that would be nonthreatening to Israel. Letting all of those in the conquered territories is undesired by the government of Israel because it would change the political equilibrium too much with that many new citizens with different views. And getting a peaceful democratic government in place in the conquered territories seems difficult to the point of near impossibility.
Barring being able to get a democratic government in place in the conquered territories that leaves Israel safe, good arguments can be made that Israel is justified in keeping a security presence when the government of a nearby territory repeatedly attacks. Finally, if residents of the West Bank, feeling 100% confident of their property rights, with no coercion whatsoever, chose to voluntarily sell land to Israeli settlers, the government of Israel would then need to seek the consent of those Israeli landowners if it wanted to govern that territory.
But in all cases, it is the consent of the governed that gives the right to rule, not conquering—even if that conquering is in a just war. Conquering a territory is more like the situation in a constitutional monarchy in which the king asks someone to attempt to form a government. The government must still be voted in: in that system the nomination by the king of someone to try to get together a majority coalition does not give one the right to rule; actually getting together the majority coalition gives one the right to rule.
Leaders who started a war of aggression can be punished severely, and underlings can be punished for war crimes and other rights violations. But those in the conquered territories who voted against conducting the war of aggression or were not allowed any say about the decision, and did as little as possible to further the war, and committed no rights violations, retain their full rights. (Here there is an important and difficult question about exactly how much attempted coercion one is expected to endure to avoid aiding an unjust war or committing rights violations of a certain gravity.)
John Locke’s argument that even a just war cannot make it right to govern without the consent of the governed or to dispossess those in conquered territory is very difficult to wade through, but its relevance to Israel’s situation makes it worth the trouble. Try to keep slogging through.
John Locke’s Argument
Let’s imagine a just war—say a defensive war. John Locke begins by saying that the leader of a victorious country in a just war still has to seek the consent of those in the conquering army and the rest of the people in the victorious country.
§. 177. But supposing victory favours the right side, let us consider a conqueror in a lawful war, and see what power he gets, and over whom. First, It is plain he gets no power by his conquest over those that conquered with him.They that fought on his side cannot suffer by the conquest, but must at least be as much freemen as they were before. And most commonly they serve upon terms, and on condition to share with their leader, and enjoy a part of the spoil, and other advantages that attend the conquering sword; or at least have a part of the subdued country bestowed upon them. And the conquering people are not, I hope, to be slaves by conquest, and wear their laurels only to shew they are sacrifices to their leader’s triumph. They, that found absolute monarchy upon the title of the sword, make their heroes, who are the founders of such monarchies, arrant Drawcansirs, and forget they had any officers and soldiers that fought on their side in the battles they won, or assisted them in the subduing, or shared in possessing, the countries they mastered. We are told by some, that the English monarchy is founded in the Norman conquest, and that our princes have thereby a title to absolute dominion: which if it were true, (as by the history it appears otherwise) and that William had a right to make war on this island: yet his dominion by conquest could reach no farther than to the Saxons and Britons, that were then inhabitants of this country. The Normans that came with him, and helped to conquer, and all descended from them, are freemen, and no subjects by conquest; let that give what dominion it will. And if I, or any body else, shall claim freedom, as derived from them, it will be very hard to prove the contrary: and it is plain, the law, that has made no distinction between the one and the other, intends not there should be any difference in their freedom or privileges.
If there is enough intermarriage between the people of the victorious, conquering country and those in the conquered country, soon, this principle alone goes a long way to make clear that conquest does not give one the right to be a dictator.
John Locke then goes on to talk about punishing the leaders of those that started the war of aggression, who are now conquered. His ideas on punishment do not match modern ideas, but the basic idea that the leaders of a country that begins an unjust war can be punished is sound:
§. 178. But supposing, which seldom happens, that the conquerors and conquered never incorporate into one people, under the same laws and freedom; let us see next what power a lawful conqueror has over the subdued: and that I say is purely despotical. He has an absolute power over the lives of those who by an unjust war have forfeited them; but not over the lives or fortunes of those who engaged not in the war, nor over the possessions even of those who were actually engaged in it.
Those beneath the leaders have a duty to resist the unjust war and any other rights violations. How far that duty goes is a difficult question, but enthusiastically helping leaders leading an unjust war is not fulfilling that duty:
§. 179. Secondly, I say then the conqueror gets no power but only over those who have actually assisted, concurred, or consented to that unjust force that is used against him: for the people having given to their governors no power to do an unjust thing, such as is to make an unjust war, (for they never had such a power in themselves) they ought not to be charged as guilty of the violence and injustice that is committed in an unjust war, any farther than they actually abet it: no more than they are to be thought guilty of any violence or oppression their governors should use upon the people themselves, or any part of their fellow-subjects, they having impowered them no more to the one than to the other. Conquerors, it is true, seldom trouble themselves to make the distinction, but they willingly permit the confusion of war to sweep all together: but yet this alters not the right; for the conqueror’s power over the lives of the conquered, being only because they have used force to do, or maintain an injustice, he can have that power only over those who have concurred in that force; all the rest are innocent; and he has no more title over the people of that country, who have done him no injury, and so have made no forfeiture of their lives, than he has over any other, who, without any injuries or provocations, have lived upon fair terms with him.
The appropriateness of punishing the leaders of the country that started the unjust war does not mean one can punish their families. If the families were enriched by ill-gotten gains, surely it is OK to take those away and use those riches to make restitution to those who were harmed. And making restitution for war damage from the possessions of a leader will almost unavoidably hurt the family of the leader. But much of this restitution will be to those who were part of the now conquered country that began a war of aggression. And John Locke argues that the damage done to the now victorious country and its citizens is unlikely to be enough to justify large-scale dispossession of large numbers of people as reparations. John Locke emphasizes how much land is likely to be worth compared to the value of the damages from a war. I would emphasize the human capital an individual has—which if the innocent son of a leader rather than the leader, cannot justly be taken away.
§. 180. Thirdly, The power a conqueror gets, over those he overcomes in a just war, is perfectly despotical: he has an absolute power over the lives of those, who by putting themselves in a state of war, have forfeited them; but he has not thereby a right and title to their possessions. This I doubt not, but at first sight will seem a strange doctrine, it being so quite contrary to the practice of the world; there being nothing more familiar in speaking of the dominion of countries, than to say such an one conquered it: as if the conquest, without any more ado, conveyed a right of possession. But when we consider, that the practice of the strong and powerful, how universal soever it may be, is seldom the rule of right, however it be one part of the subjection of the conquered, not to argue against the conditions cut out to them by the conquering sword.
§. 181. Though in all war there be usually a complication of force and damage, and the aggressor seldom fails to harm the estate, when he uses force against the persons of those he makes war upon, yet it is the use of force only that puts a man into the state of war: for whether by force he begins the injury, or else having quietly, and by fraud, done the injury, he refuses to make reparation, and by force maintains it, (which is the same thing, as at first to have done it by force) it is the unjust use of force, that makes the war: for he that breaks open my house, and violently turns me out of doors; or having peaceably got in, by force keeps me out, does in effect the same thing; supposing we are in such a state, that we have no common judge on earth, whom I may appeal to, and to whom we are both obliged to submit: for of such I am now speaking. It is the unjust use of force then, that puts a man into the state of war with another; and thereby he that is guilty of it makes a forfeiture of his life: for quitting reason, which is the rule given between man and man, and using force, the way of beasts, he becomes liable to be destroyed by him he uses force against, as any savage ravenous beast, that is dangerous to his being.
§. 182. But because the miscarriages of the father are no faults of the children, and they may be rational and peaceable, notwithstanding the brutishness and injustice of the father; the father, by his miscarriages and violence, can forfeit but his own life, but involves not his children in his guilt or destruction. His goods, which nature, that willeth the preservation of all mankind as much as is possible, hath made to belong to the children to keep them from perishing, do still continue to belong to his children: for supposing them not to have joined in the war, either through infancy, absence, or choice, they have done nothing to forfeit them: nor has the conqueror any right to take them away, by the bare title of having subdued him that by force attempted his destruction; though perhaps he may have some right to them, to repair the damages he has sustained by the war, and the defence of his own right; which how far it reaches to the possessions of the conquered, we shall see by-and-by. So that he that by conquest has a right over a man’s person to destroy him if he pleases, has not thereby a right over his estate to possess and enjoy it: for it is the brutal force the aggressor has used, that gives his adversary a right to take away his life, and destroy him if he pleases, as a noxious creature; but it is damage sustained that alone gives him title to another man’s goods: for though I may kill a thief that sets on me in the highway, yet I may not (which seems less) take away his money, and let him go: this would be robbery on my side. His force, and the state of war he put himself in, made him forfeit his life, but gave me no title to his goods. The right then of conquest extends only to the lives of those who joined in the war, not to their estates, but only in order to make reparation for the damages received, and the charges of the war, and that too with reservation of the right of the innocent wife and children.
§. 183. Let the conqueror have as much justice on his side, as could be supposed, he has no right to seize more than the vanquished could forfeit: his life is at the victor’s mercy; and his service and goods he may appropriate, to make himself reparation; but he cannot take the goods of his wife and children; they too had a title to the goods he enjoyed, and their shares in the estate he possessed: for example, I in the state of nature (and all commonwealths are in the state of nature one with another) have injured another man, and refusing to give satisfaction, it comes to a state of war, wherein my defending by force what I had gotten unjustly, makes me the aggressor. I am conquered: my life, it is true, as forfeit, is at mercy, but not my wife’s and children’s. They made not war, nor assisted in it. I could not forfeit their lives; they were not mine to forfeit. My wife had a share in my estate; that neither could I forfeit. And my children also, being born of me, had a right to be maintained out of my labour or substance. Here then is the case: the conqueror has a title to reparation for damages received, and the children have a title to their father’s estate for their subsistence: for as to the wife’s share, whether her own labour or compact, gave her a title to it, it is plain, her husband could not forfeit what was her’s. What must be done in the case? I answer; the fundamental law of nature being, that all, as much as may be, should be preserved, it follows, that if there be not enough fully to satisfy both, viz. for the conqueror’s losses, and children’s maintenance, he that hath, and to spare, must remit something of his full satisfaction, and give way to the pressing and preferable title of those who are in danger to perish without it.
§. 184. But supposing the charge and damages of the war are to be made up to the conqueror, to the utmost farthing; and that the children of the vanquished, spoiled of all their father’s goods, are to be left to starve and perish: yet the satisfying of what shall, on this score, be due to the conqueror, will scarce give him a title to any country he should conquer: for the damages of war can scarce amount to the value of any considerable tract of land, in any part of the world, where all the land is possessed, and none lies waste. And if I have not taken away the conqueror’s land, which, being vanquished, it is impossible I should; scarce any other spoil I have done him can amount to the value of mine, supposing it equally cultivated, and of an extent any way coming near what I had over-run of his. The destruction of a year’s product or two (for it seldom reaches four or five) is the utmost spoil that usually can be done: for as to money, and such riches and treasure taken away, these are none of nature’s goods, they have but a fantastical imaginary value: nature has put no such upon them: they are of no more account by her standard, than the wampompeke of the Americans to an European prince, or the silver money of Europe would have been formerly to an American. And five years product is not worth the perpetual inheritance of land, where all is possessed, and none remains waste, to be taken up by him that is disseized; which will be easily granted, if one do but take away the imaginary value of money, the disproportion being more than between five and five hundred; though, at the same time, half a year’s product is more worth than the inheritance, where there being more land than the inhabitants possess and make use of, any one has liberty to make use of the waste: but there conquerors take little care to possess themselves of the lands of the vanquished. No damage therefore, that men in the state of nature (as all princes and governments are in reference to one another) suffer from one another, can give a conqueror power to dispossess the posterity of the vanquished, and turn them out of that inheritance, which ought to be the possession of them and their descendants to all generations. The conqueror indeed will be apt to think himself master: and it is the very condition of the subdued not to be able to dispute their right. But if that be all, it gives no other title than what bare force gives to the stronger over the weaker: and, by this reason, he that is strongest will have a right to whatever he pleases to seize on.
In Section 185, John Locke makes a nice summary of his argument up to that point:
§. 185. Over those then that joined with him in the war, and over those of the subdued country that opposed him not, and the posterity even of those that did, the conqueror, even in a just war, hath, by his conquest, no right of dominion: they are free from any subjection to him, and if their former government be dissolved, they are at liberty to begin and erect another to themselves.
Some conquerors try to claim they have received the consent of the conquered when that supposed consent is made under coercion:
§. 186. The conqueror, it is true, usually by the force he has over them, compels them, with a sword at their breasts, to stoop to his conditions, and submit to such a government as he pleases to afford them; but the enquiry is, what right he has to do so? If it be said, they submit by their own consent, then this allows their own consent to be necessary to give the conqueror a title to rule over them. It remains only to be considered, whether promises extorted by force, without right, can be thought consent, and how far they bind. To which I shall say, they bind not at all; because whatsoever another gets from me by force, I still retain the right of, and he is obliged presently to restore. He that forces my horse from me, ought presently to restore him, and I have still a right to retake him. By the same reason, he that forced a promise from me, ought presently to restore it, i. e. quit me of the obligation of it; or I may resume it myself, i. e. chuse whether I will perform it: for the law of nature laying an obligation on me only by the rules she prescribes, cannot oblige me by the violation of her rules: such is the extorting any thing from me by force. Nor does it all alter the case to say, I gave my promise, no more than it excuses the force, and passes the right, when I put my hand in my pocket, and deliver my purse myself to a thief, who demands it with a pistol at my breast.
§. 187. From all which it follows that the government of a conqueror, imposed by force on the subdued, against whom he had no right of war, or who joined not in the war against him, where he had right, has no obligation upon them.
John Locke returns to the innocence of children in the conquered country. Even though that country was conquered in a just war, innocent children have not forfeited any of their rights:
§. 188. But let us suppose, that all the men of that community, being all members of the same body politic, may be taken to have joined in that unjust war wherein they are subdued, and so their lives are at the mercy of the conqueror.
§. 189. I say, this concerns not their children who are in their minority: for since a father hath not, in himself, a power over the life or liberty of his child, no act of his can possibly forfeit it. So that the children, whatever may have happened to the fathers, are freemen, and the absolute power of the conqueror reaches no farther than the persons of the men that were subdued by him, and dies with them: and should he govern them as slaves, subjected to his absolute arbitrary power, he has no such right of dominion over their children. He can have no power over them but by their own consent, whatever he may drive them to say or do, and he has no lawful authority, whilst force, and not choice, compels them to submission.
What are the rights of those innocent children? First, each individuall has the right to be free. Second, John Locke has a complicated argument that they have a right to their ancestral land that cannot be altered by the laws of a government they collectively do not assent to.
§. 190. Every man is born with a double right: First, a right of freedom to his person, which no other man has a power over, but the free disposal of it lies in himself. Secondly, a right, before any other man, to inherit with his brethren his father’s goods.
§. 191. By the first of these, a man is naturally free from subjection to any government, though he be born in a place under its jurisdiction; but if he disclaim the lawful government of the country he was born in, he must also quit the right that belonged to him by the laws of it, and the possessions there descending to him from his ancestors, if it were a government made by their consent.
§. 192. By the second, the inhabitants of any country, who are descended, and derive a title to their estates from those who are subdued, and had a government forced upon them against their free consents, retain a right to the possession of their ancestors, though they consent not freely to the government, whose hard conditions were by force imposed on the possessors of that country: for the first conqueror never having had a title to the land of that country, the people who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves from the usurpation or tyranny which the sword hath brought in upon them, till their rulers put them under such a frame of government, as they willingly and of choice consent to. Who doubts but the Grecian christians, descendants of the ancient possessors of that country, may justly cast off the Turkish yoke, which they have so long groaned under, whenever they have an opportunity to do it? For no government can have a right to obedience from a people who have not freely consented to it; which they can never be supposed to do, till either they are put in a full state of liberty to chuse their government and governors, or at least till they have such standing laws, to which they have by themselves or their representatives given their free consent, and also till they are allowed their due property, which is so to be proprietors of what they have, that nobody can take away any part of it without their own consent, without which, men under any government are not in the state of freemen, but are direct slaves under the force of law.
Even if the leader of a conquering country did own a conquered country lock, stock and barrel—which John Locke has been disputing—to create good incentives, he or she would need to bestow some property of some sort. That property then becomes subject to natural law. In particular, one of the most basic principles of natural law is that one must keep one’s promises when these are made freely. And the kind of leader we are talking about has so much power, that we know the promises are made freely:
§. 193. But granting that the conqueror in a just war has a right to the estates, as well as power over the persons, of the conquered; which, it is plain, he hath not: nothing of absolute power will follow from hence, in the continuance of the government; because the descendants of these being all freemen, if he grants them estates and possessions to inhabit his country, (without which it would be worth nothing) whatsoever he grants them, they have, so far as it is granted, property in. The nature whereof is, that without a man’s own consent it cannot be taken from him.
§. 194. Their persons are free by a native right, and their properties, be they more or less, are their own, and at their own disposal, and not at his; or else it is no property.Supposing the conqueror gives to one man a thousand acres, to him and his heirs for ever; to another he lets a thousand acres for his life, under the rent of 50l. or 500l. per ann. has not the one of these a right to his thousand acres for ever, and the other, during his life, paying the said rent? and hath not the tenant for life a property in all that he gets over and above his rent, by his labour and industry during the said term, supposing it be double the rent? Can any one say, the king, or conqueror, after his grant, may by his power of conqueror take away all, or part of the land from the heirs of one, or from the other during his life, he paying the rent? or can he take away from either the goods or money they have got upon the said land, at his pleasure? If he can, then all free and voluntary contracts cease, and are void in the world; there needs nothing to dissolve them at any time, but power enough: and the grants and promises of men in power are but mockery and collusion: for can there be any thing more ridiculous than to say, I give you and yours this for ever, and that in the surest and most solemn way of conveyance can be devised; and yet it is to be understood, that I have right, if I please, to take it away from you again to-morrow?
§. 195. I will not dispute now whether princes are exempt from the laws of their country; but this I am sure, they owe subjection to the laws of God and nature, Nobody, no power, can exempt them from the obligations of that eternal law. Those are so great, and so strong, in the case of promises, that omnipotency itself can be tied by them. Grants, promises, and oaths, are bonds that hold the Almighty: whatever some flatterers say to princes of the world, who altogether, with all their people joined to them, are, in comparison of the great God, but as a drop of the bucket, or a dust on the balance, inconsiderable, nothing!
John Locke’s argument is a complex one, so it good that he makes a finally summary:
§. 196. The short of the case in conquest is this: the conqueror, if he have a just cause, has a despotical right over the persons of all, that actually aided, and concurred in the war against him, and a right to make up his damage and cost out of their labour and estates, so he injure not the right of any other. Over the rest of the people, if there were any that consented not to the war, and over the children of the captives themselves, or the possessions of either, he has no power; and so can have, by virtue of conquest, no lawful title himself to dominion over them, or derive it to his posterity; but is an aggressor, if he attempts upon their properties, and thereby puts himself in a state of war against them, and has no better a right of principality, he, nor any of his successors, than Hingar, or Hubba, the Danes, had here in England; or Spartacus, had he conquered Italy, would have had; which is to have their yoke cast off, as soon as God shall give those under their subjection courage and opportunity to do it. Thus, notwithstanding whatever title the kings of Assyria had over Judah by the sword, God assisted Hezekiah to throw off the dominion of that conquering empire. “And the Lord was with Hezekiah, and he prospered; wherefore he went forth, and he rebelled against the king of Assyria, and served him not,” 2 Kings xviii. 7. Whence it is plain, that shaking off a power, which force, and not right, hath set over any one, though it hath the name of rebellion, yet is no offence before God, but is that which he allows and countenances, though even promises and covenants, when obtained by force, have intervened: for it is very probable, to any one that reads the story of Ahaz and Hezekiah attentively, that the Assyrians subdued Ahaz, and deposed him, and made Hezekiah king in his father’s life-time; and that Hezekiah by agreement had done him homage, and paid him tribute all this time.
1689, when the Second Treatise was published, is a long time ago. But in their application, the arguments are literally as current as yesterday’s news. I have read a lot about the situation in Israel and its conquered territories in my 58 years. I can say that John Locke’s arguments offers a fresher and deeper take on that situation than almost all the commentators I have read.
For links to other John Locke posts, see these John Locke aggregator posts: