“A Trespass against the Whole Species”: Universal Crime and Sovereign Founding in John Locke’s Second Treatise of Government

• Author: Sinja Graf
• DOI: 10.1177/0090591717752468
• Published date: 01 August 2018
• Date: 01 August 2018
• Subject Matter: Articles

752468PTXXXX10.1177/0090591717752468Political TheoryGraf
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Political Theory
2018, Vol. 46(4) 560 –585
“A Trespass against
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Universal Crime and
Sovereign Founding in
John Locke’s Second
Treatise of Government
Sinja Graf1
Abstract
This essay theorizes how the enforcement of universal norms contributes
to the solidification of sovereign rule. It does so by analyzing John Locke’s
argument for the founding of the commonwealth as it emerges from his
notion of universal crime in the Second Treatise of Government. Previous
studies of punishment in the state of nature have not accounted for Locke’s
notion of universal crime which pivots on the role of mankind as the subject
of natural law. I argue that the dilemmas specific to enforcing the natural law
against “trespasses against the whole species” drive the founding of sovereign
government. Reconstructing Locke’s argument on private property in light
of universal criminality, the essay shows how the introduction of money in
the state of nature destabilizes the normative relationship between the self
and humanity. Accordingly, the failures of enforcing the natural law require
the partitioning of mankind into separate peoples under distinct sovereign
governments. This analysis theorizes the creation of sovereign rule as part of
the political productivity of Locke’s notion of universal crime and reflects on
an explicitly political, rather than normative, theory of “humanity.”
1Faculty of Arts & Social Sciences, Department of Political Science, National University of
Singapore, Singapore
Corresponding Author:
Sinja Graf, Faculty of Arts & Social Sciences, Department of Political Science, National
University of Singapore, AS1, #04-45, 11 Arts Link, Singapore 117570, Singapore.
Email: polgsu@nus.edu.sg

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561
Keywords
universal crime, political productivity, natural law, sovereignty, John Locke
Introduction
Recent studies on the relationship between human rights and modern state-
hood in political and international relations theory have challenged the popu-
lar assumption of a conflict between universal norms and sovereignty.1 For
instance, Christian Reus-Smit critiques the assumed antagonism between
universal norms and sovereignty that defines most of contemporary liberal
international thought and documents the constitutive role of individual rights
in the passage from a world of empires to a world of sovereign states.2 This
scholarship demonstrates that individual rights, far from simply limiting sov-
ereign power, were key to the creation of modern states.
This essay furthers this critical agenda. Through a close reading of John
Locke’s Second Treatise of Government, my argument explores the counter-
intuitive connection between universal norms and sovereign government by
theorizing how the dilemmas of enforcing universal norms further the con-
solidation of the state. At the centre of analysis is Locke’s concept of a “tres-
pass against the whole species” (§8), which I call his notion of universal
crime. Locke’s notion of universal crime remains one of the least examined
ideas in the text.3 Even recent interpretations of the Second Treatise from
international and colonial perspectives4 have not interrogated this concept,
despite its explicit connection to Locke’s universalism. Indeed, studies of Locke’s
political theory rarely offer interpretations of crime in the state of nature.5 To
address this lacuna, I show how Locke connects his discussion of the failures
of punishing universal crimes in the state of nature to his argument for the
state, which offers a clear demonstration of the nexus between the vagaries of
universal norm enforcement and sovereign founding. I maintain that the
uncertainties of punishing universal crimes in the state of nature are produc-
tive of the partitioning of humanity into separate peoples under sovereign
governments in the Second Treatise.
Studies of punishment as an institution key to modern politics and sover-
eign power span traditions of political theory. Regarding the Second Treatise,
scholars have documented how the dilemmas of punishment in the state of
nature lead to the founding of the commonwealth.6 What has eluded attention
is that punishment in the state of nature is punishment of universal crimes.
Given that Locke articulates mankind as the subject of natural law, enforcing
the latter means to punish in the name of humanity. Moreover, Locke’s argu-
ment for the natural executive right derives from his notion of universal
crime. It thus behooves us to account for the universalist dimensions of both

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Political Theory 46(4)
punishment and crime in the state of nature. Accordingly, I argue that it is not
simply the uncertain enforcement of the natural law that drives the founding
of the commonwealth in the Treatise. Rather, Locke’s notion of universal
crime reveals that this normative uncertainty pertains specifically to human-
ity as the subject of the natural law and to the relationship between the self
and humanity in the state of nature, which is condensed in the institution of
natural private property. This normative uncertainty stems from the introduc-
tion of money, which vitiates the possibility of recognizing the distinction
between law-abiders and trespassers required for the appropriate enforce-
ment of the natural law. Ultimately, the difficulty of discerning which indi-
vidual acquisitive actions preserve or harm mankind compromises proper
punishment of universal crimes in the state of nature, thereby corroding the
natural law that provides the bonds uniting mankind into one community. As
a result, free and therefore law-governed collective life must be recreated
within civil society under sovereign government.
This is the first of the essay’s three contributions. The second lies in out-
lining the conceptual character that “humanity” assumes once it becomes the
subject of law and crime. Locke’s notion of universal crime offers us a win-
dow to this problem. As any other concept, once stipulated as a subject of law
that can be broken, mankind becomes a normative category and it ceases to
denote a universally unified community. A normative notion of humanity dis-
tinguishes lawful from unlawful actors and produces a normative hierarchy
within humanity, which allows for a superior to legitimately punish an infe-
rior (§§ 135, 2357).
Finally, the essay focuses on the political productivity of the notion of
universal crime, thereby turning away from normative approaches to the rela-
tionship between law and politics.8 Instead of asking what the notion of uni-
versal crime proscribes and why, this essay analyzes what relationships,
figures, and problems it produces. It finds that Locke’s notion of “trespasses
against the whole species” is politically productive in the twofold manner just
laid out. Put differently, I show how Locke’s notion of universal crime shapes
his discussion of a “hierarchical humanity” and drives his argument for the
founding of sovereign rule. It is especially the focus on the effects of the
failed enforcement of universal norms that marks the political, rather than
moral, perspective on humanity as a subject of (natural) law developed here.
The discussion proceeds as follows. The next section details why Locke
identifies mankind as the subject of natural law violations instead of advanc-
ing the more moderate claim of individual injury. This requires analyzing the
connection between the “original community of mankind” and the “original
communism”9 in the state of nature. To fully grasp Locke’s theory of univer-
sal crime as it spans the Treatise, we must analyze his labor theory of

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property, which ties individual acquisitive practices to the preservation of
mankind. The third part elaborates this theme by locating the relationship
between self-preservation and mankind’s preservation in Locke’s theory of
private property. I here focus on Locke’s portrayal of the concrete practices
required to preserve humanity to analyze how the notion of universal crime
shapes the concept of humanity in the text. The fourth section details how the
instabilities and failures of punishing “trespassers against the species” follow
from the abstraction of property into money in the state of nature, which in
turn necessitates the passage from the “original community of mankind” to
the community of citizens in the commonwealth. Monetary possessions
occlude the distinction between law-abiders and trespassers necessary for
appropriately enforcing the natural law by which mankind is united into one
species. The opacity of whose property harms mankind destabilizes knowl-
edge of the normative relationship between individual acquisitive action and
the preservation of humanity. Once judgment of the congruence between pri-
vate property and the natural law is dislocated, the figure of the universal
criminal becomes an elusive one such that punishment becomes uncertain,
irregular, and excessive and must therefore be monopolized in sovereign gov-
ernment. The fifth section shows how the founding of the state addresses
these normative dilemmas of the state of nature. The positive law10 in the
commonwealth not only delivers secure normative knowledge, but it gives
life and form to the collective...