(Published in The Review of Politics, 45 (1983), pp.323-344.)
John Kilcullen
Much has been written about Locke's Second Treatise,[Note 1] but still, I believe, the book's main line of argument has been left unclear . Some concepts need more prominence---the duty to preserve mankind, the right of war, and private judgment; others need less---consent, majority rule, and property. Locke's aim was not to show that political obligation rests upon consent: that is assumed without argument.[Note 2] What he set out to prove is that there are certain limits to political obligation which not even consent could set aside.[Note 3]
It is sometimes said that Locke held that a government's right to coerce derives from the consent of the governed, and that political obligation and political power are correlative. These statements are both mistaken. In Locke's theory the government's right to coerce has nothing to do with whether the person coerced has consented to anything, and a government may have just powers over people who owe it no political obligation. The terminology needs refining.[Note 4] Political obligation does not mean just any moral obligation to obey government or positive law. To feel morally obliged (for example) not to commit a murder for the reason that murder is immoral, and would be even if it were not also illegal, is not to acknowledge any political obligation in the proper sense; political obligation is acknowledged only by taking the command of government or positive law as an independent reason for regarding murder as morally wrong, a reason that would be enough to make it immoral even if it had not already been against natural law. Locke thinks that positive law ought to be an interpretation and application of natural law,[Note 5] which might seem to leave no room for political obligation in what I call the proper sense. What makes room is the fact that even reasonable and well-intentioned people may differ in their judgments of what natural law requires, and the possibility that one person may or should defer to another's judgment. So to define political obligation as I will use the term in explaining Locke's argument (Locke himself does not seem to use it), it is a moral obligation, within limits which the argument will establish, to act upon the magistrate's determination of one's duties under natural law and not upon one's own judgment. By political power (in the large sense) I will mean a combination of two moral rights, the right to make and enforce (coercively, if need be) determinations of people's duties under natural law,[Note 6] and the right to have the uncoerced obedience of citizens to these judgments and their cooperation in enforcing them. I will call the first right political power in the narrow sense, and the second political authority.
It is not true in Locke's theory that obligation and power are correlative and rest upon consent, although this is true of obligation and authority. Political power in the narrow sense does not either presuppose consent or imply obligation. The right to enforce one's interpretation of natural law in the state of nature does not presuppose the consent of those upon whom it is enforced, and neither does the political power in the narrow sense of the community and its representatives: they have the right to enforce their interpretation of natural law even on persons who do not consent to their authority (see 9:14-20).[Note 7] But the right to enforce law does not imply any obligation on the part of those upon whom it is enforced: one person's natural right to interpret and enforce natural law does not imply that another ought to accept the interpretation, since both have the same right equally, and therefore no one has any natural duty to accept the community's interpretation. Political obligation is not a corollary of political power but an obligation assumed voluntarily, by consent.
Locke's thesis is that the obligation cannot be unlimited. There are three rights which a person must exercise on his own judgment without deferring to the judgment of the community's representative, namely: not to do anything contrary to natural law;[Note 8] to defend oneself and others against serious injury which the community cannot or will not repair; and to rebel against a corrupt government. This is what Locke set out to prove, not that consent and nothing else gives rise to political obligation. Assuming, reasonably, that the most effective way of putting oneself under an obligation is to promise, he argues that not even a promise can cancel these rights: no one can even by compact or explicit consent put himself, or herself,[Note 9] under the unlimited power of another (23:5-7).
The duty to enforce the law of nature is an implication of one of its provisions, the "fundamental law of nature" that mankind is to be preserved (16:10),[Note 10] mankind including oneself and others. This means that one must not destroy life, and also that one must take positive action to preserve it, including action to get others to do what they should to preserve it. In some places Locke uses life broadly, as elsewhere he uses property (173:4 ),[Note 11] to include not only physical life but also anything necessary or useful to the preservation or enhancement of life, such as health, liberty and material possessions, and he sometimes interprets the duty of preserving life so as to cover such things (6:25-8). This duty gives rise to rights of war, punishment and reparation. War means any conflict which endangers physical life, even brief conflict between two persons. The right of war is the right to fight to preserve the life of oneself or another. Punishment preserves life by deterring future wrongdoing (11-12). Reparation cannot restore physical life, but if the wrong does not destroy physical life but only impairs life in the broad sense (for example by taking possessions useful to life, or by killing one person useful to another's life) then the right of reparation comes into play (10).
Besides the duty to preserve mankind Locke mentions a duty not to destroy any creature (not only man) wantonly, that is, except when "some nobler use than its bare preservation authorizes its destruction" (6).[Note 12] The duty to preserve mankind is not simply an implication of the duty not to destroy, since it requires not only not destroying but also positive action, so these are two duties. Now to preserve some it may be necessary to destroy others. The plea of nobler use generally will not justify destroying one human being for another's sake because all mankind are equal: not in every respect ( 54), but in the sense that no sort of human beings are marked out by nature (i.e., by God) as "an inferior rank of creatures" available for use as mere means by other human beings.[Note 13] But by wrongdoing a human being reduces himself to an inferior rank, "revolting from his own kind to that of beasts" ( 172), and he may then be destroyed in war or punishment if this is useful to the preservation of mankind. Even then the destruction must not be wanton: "even the guilty are to be spared when it can prove no prejudice to the innocent" (159).
The meaning of the duty to preserve mankind can be brought out more clearly by comparison with Hobbes (:with no implication that Locke wrote with Hobbes particularly in view). According to Hobbes the only imperative of the law of nature is self-preservation; according to Locke it requires each person to preserve others also, at least "when his own preservation comes not in competition" (6:23).[Note 14] This difference will not come to much unless we add that when there is competition self-preservation does not automatically take precedence; and then there are significant implications. First, with respect to the enforcement of the law of nature. There is always some risk to oneself in intervening in the quarrels of others. If self-preservation is the only imperative, then one should not risk intervention except when it will increase one's own security. This may justify intervention not to do justice but to assist the aggressor, or to prolong and extend the quarrel and increase its destructive effects, when these things increase one's own security. But if we have a duty to preserve others disinterestedly (i.e., even apart from the possibility that enforcing justice may increase our own security), then we should intervene not on the aggressor's side but to protect the innocent, to settle the quarrel and minimize destruction, even at some risk to our own security.
Second, with respect to precautions. If self-preservation is the sole or overriding imperative, one should not accept the slightest risk to oneself out of consideration for others, and precautions of whatever kind will be justified even against a person who shows no aggressive intent. But if unprovoked precautionary attacks are permissible they may become necessary; if each person knows or suspects that others believe they are entitled to make such attacks, then each has reason to get in first, and each may become a mortal danger to every other. If, on the other hand, there is a duty to preserve others, then the right to take precautions is limited; one must accept some risks if precautions would impose excessive harm or risk on others. Self-preservation is not the only value; it is true of some things, such as precautionary murder, that it is better to die than to do them. So, according to Locke, even in the state of nature we must not treat another as an enemy until he attacks or shows clearly that he plans to, and we must not carryon the war beyond what is necessary for deterrence, security and reparation (20).
Third, with respect to compliance. Since in Hobbes's theory the dangers of the state of nature are so great (partly as a result of the unrestricted right to take precautions), self-preservation requires the establishment of an agency to enforce restrictions. A person rationally concerned with self-preservation will be ready to cooperate in establishing this agency, but in the meantime will not comply with the restrictions it would enforce. Even those ready to comply with restrictions when the agency is established may meanwhile make completely unprovoked attacks upon one another. But according to Locke, even in the state of nature concern for the preservation of mankind may require compliance with restrictions even when others do not comply, despite the risks. This third difference overlaps the second, since compliance includes accepting restrictions natural law imposes which limit the right to take precautions.
These differences mean that on Locke's theory the state of nature should be safer: each person should comply with and enforce the law of nature even if others do not, taking only reasonable precautions. The state of nature and the state of war , "however some men have confounded them, are as far distant as a State of Peace, Good Will, Mutual Assistance and Preservation, and a State of Enmity, Malice, Violence and Mutual Destruction" (19). The distance may not be so great unless a sufficient number of people do comply with and enforce natural law as Locke says they should, but at least the state of nature is less likely to be a state of war than if self-preservation were the sole or overriding imperative.
Although the state of nature may be comparatively peaceful, its dangers and inconveniences are such that "government is hardly to be avoided amongst men that live together" (105).[Note 15] Those who comply with and enforce natural law may be too few to guarantee peace. Further, if each person enforces the law of nature on his own initiative, acting on his own interpretation of the law of nature and his own assessment of the facts, the result may be confusion and conflict. The bystanders judge for themselves who is aggressor and who is victim, and whether and how to intervene. The parties to the dispute have as much right to enforce natural law as anyone else: if I am attacked, in my judgment unjustly, and defend myself, and bystanders mistake the situation and intervene against me, then I have no duty to give in---I can rightly try to enforce what I judge to be my rights. The bystanders may disagree with one another and themselves come to blows. The remedy is for everyone to renounce the right of private judgment,[Note 16] especially the right to judge in one's own case, undertaking to accept and help enforce the judgment of an umpire and not to attempt to enforce the law of nature except at the umpire's behest (87, 88, 130).[Note 17] The umpire is the community; other terms for it are the commonwealth, the people, the political or civil society ( not the condition of being in political or civil society, but the particular civil society they are in [ 128]), and the society. Generally the community acts through representatives or agents, in Locke's day usually called "magistrates."
The undertaking to accept and enforce the umpire's judgments (within limits) means that one may have to accept, and even help enforce, judgments with which one does not agree. There are two cases. The first is when in one's own judgment the magistrate's judgment is not an implication of natural law, though it does not conflict with it either. Then one must obey and even help enforce the magistrate's judgment. The second is when there seems to be a conflict. "What if the magistrate should enjoin anything. ..that appears unlawful [i. e. against natural law ] to the conscience of a particular person? ...Such a private person is to abstain from the action that he judges unlawful, and he is to undergo the punishment which it is not unlawful for him to bear. For the private judgment of any person concerning a law enacted in political matters, for the public good, does not take away the obligation of that law, nor deserve a dispensation."[Note 18] One cannot help enforce the judgment, but one must not oppose it with force.
According to Hobbes the ruler's power is simply his original right of nature which he retains while all others lay theirs down.[Note 19] This is not Locke's theory. Everyone, including those who become magistrates, surrender the right of private judgment and independent action in enforcing natural law; the magistrate, in his private capacity,[Note 20] has no right to use force on anyone, and in his public capacity he is subject to positive law like everyone else. "As the private judgment of any particular person, if erroneous, does not exempt him from the obligation of law, so the private judgment (as I may call it) of the magistrate does not give him any new right of imposing law upon his subjects which [was not] in the constitution of the government granted him."[Note 21] Constitutional laws govern the legislature in making laws (212), and the members of the legislature are themselves subject to the laws they make (143); the executive government ( except in foreign affairs [147] and in unforeseen emergencies [158, 159] can act only in accordance with laws made beforehand by the legislature (136-37). "No man in civil society can be exempted from the laws of it" (94). So magistrates in their official capacity may have to make and enforce judgments with which privately they do not agree (like a member of a jury who believes that the accused is really guilty, but acquits him because his guilt is not proved according to law); they are subject to the same political obligation as everyone else. If a magistrate violates this obligation, "he degrades himself [ i. e., reduces himself to a lower grade], and is but a single private person without power, and without will that has any right to obedience" (151).[Note 22] If an official acting outside the law tries to exact obedience by force he violates the undertaking which all gave not to use force independently on their own private judgment and initiative.
The "umpire" is the community, which generally acts through representatives (meaning not elected parliamentary representatives but officials). The ways of providing for its representation are the forms of government ( monarchy, aristocracy, democracy, etc.); the community is not identical with a form of government. To do the various jobs specified in the form an administration is needed. Now the pledge of obedience which each person makes on entering civil society is to the community as duly represented, not to any particular form or administration;[Note 23] it is a pledge of obedience to the community, however it may come to be represented, subject to two provisos: the mode of representation must have majority consent, and an existing form cannot be changed unless it becomes corrupt and is thereby dissolved. To make this clearer it may be helpful to distinguish ( 1) the incorporation of persons into the community, (2) the first establishment of its form of government, (3) the later reconstruction of government in a new form if the old one is dissolved, and (4) day-by-day administration under the current form. The first requires the consent of each and every person incorporated; the second and third require the consent of a majority of members; the fourth may be entrusted to an individual, a minority, a majority, or some number greater than a majority, depending on the form of government.
The first is the step by which an individual leaves the state of nature. The agreement to join into one community and to accept that community as umpire is enough to end the state of nature: the parties need not specify a form of government (99). This agreement must be unanimous, that is, each must consent, and those who join later do so by their individual consents (116:19, 122: 19-21 ). The requirement of unanimity does not mean that one person by refusing consent can stop the rest from uniting, but that those who do not consent do not become members and remain in the state of nature (95:10-12).
The first step requires unanimity but the second and third do not. The community needs to be represented by a government of some sort, but it is not tied to any particular mode of representation; it persists even if its form of government is repeatedly dissolved and reshaped. Dissolution of the government does not dissolve the community (211:1-4).[Note 24] Now if the form of government had to be accepted unanimously, dissolution of the government would dissolve the community and return its members to the state of nature by giving each person the right to veto or opt out of any arrangement for representation, without which, in general, the community cannot act (97). So some number less than all must be enough---a majority, Locke assumes, unless they specifically provide otherwise (99:4-5). The consent by which a person joins the community makes an indissoluble union (121); the members must stay together and work out any problems in the organization of their life together, abiding by the decision of the majority if they cannot all agree. The pledge by which each person leaves the state of nature is of obedience to the community, however it may come to be represented, provided the mode of representation has majority consent. This does not mean, however, that the form of government can be reconstituted whenever the majority pleases. The government is dissolved only if those who currently administer it betray their trust; while it continues in good faith to try to enforce the natural law it cannot be reconstituted (149:29-33).[Note 25]
Locke's arguments for majority rule do not apply to stage four. Whatever they mean,[Note 26] they prove at most that the form of government must be chosen by a majority, not that it must be democracy. The majority act as a constituent assembly, as it were,[Note 27] whenever the form of government is dissolved. They may choose a democracy, or they may choose some other form (132). They may set up an hereditary monarchy and then go back to their farms, leaving day-to-day administration to the monarch and his heirs. Majority rule applies in the constitutional convention but it need not apply in the constitution the convention chooses. Unless they do choose democracy, the majority give up, and no longer have, the power to make decisions. There is no suggestion in the book that they would do well to choose a democracy, and from a writer of Locke's background, time and place such a suggestion would have been surprising .
The possible forms of government include some kinds of monarchy but not absolute monarchy. Rule by a single person without institutionalized limits on his power may be acceptable in the early stages of political development (74-76, 94, 105-12), but this is not the same as monarchical power acknowledged as absolute on principle, iure divino (112). Absolutism hardened into a principle is a relapse into the state of nature, or worse. In the state of nature there is no common superior to adjudicate disputes, but at least each party is free to act on his own judgment; absolutism acknowledges no common superior, but pretends that it is the duty of one party to submit to the judgment of the other (13:30, 137, etc).
Locke's rejection of absolutism indicates a condition which a regime must meet to be a legitimate form of government: it must be open in principle to some dispersal of power, so that it will be possible for a citizen in dispute with some part of the government to appeal for adjudication to some other. Locke's argument tells not only against absolute monarchy but against the absolute independence or supremacy of any organ of government, for example, of an independent judiciary. Locke does not say so, but it follows from his argument that the legislature or executive must be able, extraordinarily, to override the judiciary in cases in which the judiciary is a party to the dispute. Again, as Locke says, the executive may rightly in some situations remodel the legislature, though the legislature is normally supreme (157-58). (See also 153:7-8, 158, 159, 160, 164:8-9 on prerogative, and 242 on appeals to public opinion.)[Note 28] All this suggests (1 am going beyond the text) that the corruption of one organ of government, even one normally supreme, need not mean the corruption and dissolution of the government, since one or more of the other organs may legitimately act to correct the disorder. Presumably the right of the majority to reconstitute the government under another form when the present form is dissolved will come with play only when corrective action by the uncorrupt organs has become improbable: there will be a grey area, not a sharp and obvious line.[Note 29]
So far we have considered why private judgment is surrendered and to whom: it is surrendered as a means to preserving mankind, and it is surrendered not to any particular administration or form of government but to the community as duly represented. Now we must consider the limits of the surrender. Upon joining the community a person wholly gives up the rights of punishment and reparation to be exercised by the community through its representatives. But he does not wholly give up the right of war, although "the laws of the society in many things confine" its exercise ( 129) .Even in civil society, and even while the form of government remains uncorrupt, a person has a limited right of war (19:13-14, 27-28). If the government is corrupt there is a more extensive right of war. In exercising this right each person must act on his own private judgment.
The reason why some right of war must be retained even in civil society is that it is needed to preserve mankind: an almost complete surrender of private initiative may serve this end, a complete surrender will not. The fundamental law requiring the preservation of mankind forbids ( among other things) suicide and neglect of reasonable precautions: "Since he cannot take away his own life, neither can he give another power to take it" (168); "No man. ..[has] a power to deliver up [his] preservation, or consequently the means of it, to the absolute will and arbitrary dominion of another" (149; compare 23, 135). So even if someone did promise absolute obedience the promise would be void. The duty to preserve life is so stringent that no one can have another duty, or assume any political or other obligation, which would prevent him from fulfilling it.[Note 30] So far is it from being true that merely by living in a country a person tacitly consents to obey the law even when it requires his death ( as Socrates argues in Crito) that even explicit consent could not abrogate the reserved right of war. Self-defense is prominent in Locke's statement of this argument, but we must remember (as Locke says at 129:2-5) that the duty to preserve life covers others' lives as well: just as in the state of nature a person has the right to defend another (11:16, 16:7-8, 128:4, 135:20), so in civil society a certain right of war is reserved not only for self-defense but also for defense of others.[Note 31]
In civil society with an uncorrupt government there is a right of war only when irreparable damage is threatened and the community cannot give effective protection ( 19). If a thief takes someone's property and prepares to use force to stop the owner from getting it back, without otherwise threatening his life, there is no right of war; the owner cannot fight to recover his property but must appeal to the community, because for this injury reparation is possible. But force to the body threatens irreparable damage; a person cannot be compensated afterwards for the loss of his ( or her) life. The attacker may not in fact intend to kill, but the person attacked may be justified in fearing death. Similarly a person deprived of liberty may reasonably fear death (18). In such cases---when force is used or threatened against the body---there is a right to fight until the community's representatives intervene effectively, or until the attacker gives up, but no longer.
It makes no difference whether the aggressor is a private person or a public official. As was explained above, an official who uses force without the proper authorization of the community "degrades himself and is but a single private person"; he "may be opposed, as any other man who by force invades the right of another" (202). The same applies to the government as a whole if it does an injustice, as even an uncorrupt government may occasionally do. While government is uncorrupt there is no right to oppose officials by force every time they act unjustly: "force is to be opposed to nothing but unjust and unlawful force" (204). The crucial question is whether the damage threatened is irreparable: force to the body threatens irreparable damage, but other injustice does not, when government is not corrupt. "When the injured party may be relieved and his damages repaired by appeal to the law, there can be no pretence for force" (207).[Note 32]
If the government is corrupt and the law will not give redress then there is a right of war, a right to use physical force to maintain one's rights, not only when unjust force is used against one's body but also when it is used to take or retain one's possession without consent, or when any other injustice is done or backed by force (222:13, 208:8-9); this means that if a person sets out to correct any injustice and is blocked by force he has the right of war, at least if the matter is important (168:20). Corruption of a government is proved not by a few isolated injustices, but by the general drift of its conduct (210); when there is such evidence of unjust intention, a person can reasonably conclude that injuries which could be repaired will not actually be repaired.
The right of war remaining in civil society belongs to each person individually, to be exercised on his own judgment (168:17, 208:7-8).[Note 33] If a private person threatens injury and no official is on the spot, private persons must decide whether the injury would be irreparable, whether there is time to get the community's representatives to intervene, whether and how to fight. If an official, or the government itself (though uncorrupt), is about to do some apparent injustice, each person concerned must decide for himself whether this would be an irreparable injustice and whether it is serious enough to cause disturbance to others and risk to himself by resisting. If the government has become corrupt, any individual who judges that it has is entitled to try to overthrow it; there is no need for a majority decision, since, like an official who degrades himself, a corrupt government has dissolved itself (212-20; notice 218:2-3).[Note 34] If enough individuals make the same judgment a general revolution will develop, still without needing majority approval. If it succeeds, however, majority consent is needed to set up a new form of government or to reestablish the old form which had been dissolved (243:20-22, 212:30, 220:1-5 etc.).
There may seem to be a contradiction in saying that an individual joining a community gives up his right to judge in cases in which the community's representatives can act, yet must judge by what they do in those cases whether they are corrupt. Perhaps we can distinguish making a judgment, that is, forming an opinion, and acting on it. A person is in every case entitled to make his own judgment, but is not entitled to act on it unless (in his judgment) the community's representatives cannot prevent or repair the threatened injury, or unless their actions have in many cases been so much at variance with his own judgment of what the law of nature requires that he has reason to conclude that they have no intention of enforcing it. With these reservations he gives up the right to act on his judgment, but not the right to form an opinion.
No consistent and plausible doctrine seems to emerge from what Locke says about tacit consent, but if I am right about the main thrust of his argument this does not matter. In some places Locke says that a member's children consent and become members by accepting inheritance of their father's property, and that similarly those who buy property from members become members. According to Locke a person becoming a member submits his property to the community, which may make positive laws to "settle" property rights (45:11-13, 120, 138:10). This submission of property does not seem to be a new clause to the promise; the promise is to submit to the community's judgment in enforcing natural rights and duties to do with preserving life (in the wide sense), which include property rights (120:6-15). But how is the obligation to submit, not only in respect of property rights but also of other natural rights and duties, contracted by acquiring a member's property? It must be assumed that the community has the right, which it must in reason be deemed to have exercised, to forbid members to alienate property except on condition that the person acquiring it becomes a member; then anyone who acquires a member's property, at least anyone who does so knowing this condition, tacitly consents. But why must the community impose this condition? Locke must assume that to function effectively the community needs not only a personal commitment to obedience from each member but also an assurance that whoever settles in its territories in future will be similarly committed. That it needs so much assurance is doubtful,[Note 35] and in any case the theory cannot provide it: if some people in the neighbourhood did not join when the community was formed (95:11-12), their property was not submitted, and the community's territory may have gaps. To know who has tacitly consented would need more knowledge of the history of particular properties than is usually available.
Elsewhere Locke seems to distinguish temporary from permanent membership: membership by the consent implied in accepting property is only temporary, and lapses when the property is sold or abandoned (121:1-13), whereas permanent membership needs an actual agreement and express declaration (121:14-21). But then Locke seems to say that there is no such thing as temporary membership. Holding property, or more generally "the very being of anyone within the territories of that government" (119), gives rise to a moral duty to accept that community as umpire as long as one is within its territories,[Note 36] but that is not membership (122). Only permanent membership by express consent is membership.[Note 37]
It seems to me that Locke would have done better not to derive the non-member's duty to obey while in the territory from consent, express or tacit. He could have argued as follows. A non-member remains in a state of nature in relation to the community and its members, having the duty everyone has in the state of nature to preserve life. In carrying out this duty he must adapt his actions to the actual situation, including the actions of others. Now if it happened to be the custom, not sanctioned by law (let us suppose), to drive on the left, the natural duty to preserve life would in this situation require the resident non-member to drive on the left. And the same duty, without any additional political or other obligation, will require him to cooperate generally in life-preserving arrangements which the law does sanction, that is, generally to obey the law ''as far forth as any Denison" (122). He is not a member, and therefore retains his natural right of private judgment, but private judgment will lead him to act like a member because of the need to coordinate with the actions of others most of whom are, or act like, members. So he will (in general) have a duty "even in Conscience" (122) to obey because he has a natural duty in conscience to preserve life, and in a tolerably well-governed territory he will generally have reason to judge that obeying the law is the best way to carry out this natural duty. Each cooperative act will be done on his own private judgment of what his natural duty requires.
What Locke finally thought about tacit consent, if his thought ever reached finality, remains in doubt. If he had set out to prove that we should all obey because we have all consented then his failure to show how we have consented would vitiate the argument. But if the point is rather to show that certain rights limit the obligation to obey, when there is one, by arguing that those rights could not be abrogated by even an explicit promise of absolute obedience, then vagueness and confusion about tacit consent does not matter. The argument will succeed as long as we grant that if an explicit promise would not abrogate a right nothing else will. An explicit promise seems the most effective way of assuming an obligation; in arguing that even such a promise would not abrogate the rights in question Locke has tackled the most difficult case and can leave other cases to take care of themselves. The claim would seem to hold also for duties, as distinct from obligations. To generalize Locke's argument, it is that the duty to preserve human life is so stringent that a person can have no other duty, and can assume no obligation, which would prevent him from fulfilling it; he can and should give up or lose the right of acting on his private judgment "so far forth as the preservation of himself and the rest of that society shall require" (129), and no further. He must retain the right of acting on his private judgment so far forth as preserving himself and others requires that .
In this reconstruction of Locke's theory of government "property" (apart from some references earlier in this section) is conspicuous by its absence---and a good thing too, since what Locke says about property is so implausible. It rests on equivocation and metaphor: "labour" cannot literally be mixed with things, a person's labour and his possessions are "his" in different senses, and his property in his own person does not include the right to sell himself, at least not in the sense in which he can sell other property.[Note 38] The theory is an attempt to show how individuals can acquire property in what God gave to mankind in common (25:9, 26); God's invitation gives a right to use, but Locke does not show how present use can establish property, which implies a permanent right to prevent use by others. Use of food (26:24) is a special case because food is consumed in use. Consider land: How can my right to exclude others while I am using a piece of land give me a right to prevent them from using it when I have finished? If we reject the "mixing labour" metaphor Locke has no answer. It seems then that Locke's arguments cannot get beyond the right not to be interfered with during actual use, which is not property in the full sense.[Note 39] However, his statements that government exists to protect property do not really make the arguments for property an integral part of his theory of government. The apparent connection is by an ad hoc stretching of "property" to include life, which is (I suggest) what his theory of government is really about. Government exists to protect life, physical life first, then liberty and possessions and whatever else preserves or enhances life. Whether possession means a right of unimpeded use or permanent property is for this theory of government not an urgent question.
It might be objected against Locke's theory that we do not know what preserving mankind means until we know the priorities among the things that come under it (my life, others' lives, my and their liberty and possessions). But perhaps it is reasonable to leave the priorities to be worked out later as cases arise. Whatever preserving mankind means, the point is that a political obligation assumed as a means to that end cannot be absolute because cases will arise in which obedience will harm life. It may be said that consistent obedience is the best way of serving the end in the long run. But how consistent? Locke does not recommend disobedience any time that seems useful: the magistrate is to be obeyed usually even when (in one's private judgment) there is some loss, but one must reserve the right to disobey and resist in exceptional cases when the threatened loss would be irreparable, or when it seems that preserving life is not the magistrate's intention.[Note 40]
Locke argues that generally one must entrust the performance of the duty to preserve mankind to the community, assuming that the only alternative is the mal-coordinated private initiatives of the absolute state of nature; and that one must reserve some right to private initiative, assuming that no one can rightly entrust the performance of an important duty entirely to any agent. Both of these assumptions are open to question. To the second it might be objected that it should make a difference which is wiser, the principal or the agent. Perhaps ordinary people ought to trust a wiser agent unreservedly. Of course they may not be wise enough to know that they ought, but the agent may be wise enough not to take their reservations too seriously; in any case his right to coerce is not derived from their acknowledging an obligation to obey (9, and see above). Perhaps, on the other hand, wiser people ought not to acknowledge any obligation to obey a community of ordinary people. As for the first, it is false to assume that to uncoordinated private enforcement the only alternative is enforcement by a community open to everyone. Suppose the wise and good organize themselves into a community not open to ordinary people---a church or party, perhaps---quoting Locke: "This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the Liberty of the State of Nature" (95). Suppose they then proceed to enforce their interpretation of the law of nature upon ordinary people (as well as on their own members), quoting Locke on the right of the magistrate to coerce non-members (9). Nothing in Locke's theory seems to rule out the formation of such paternalistic enforcement societies of select people.
In any case, coordination is possible even in the state of nature,[Note 41] as our own experience shows. Citizens of a modern state, at least native citizens who have never taken an oath of allegiance, are not in Locke's sense its members. A modern state is something like this: (1) There is no all-embracing community such as Locke envisages. (2) There are more particular organizations (including parts of the government), united for various purposes, acknowledging certain constraints of natural law as they variously interpret it, requiring of their members some surrender of independent action (with various reservations). (3) Some of these organizations exercise the natural right to enforce their interpretation of natural law on anyone they can reach by various means, sometimes coercive. (4) Organizations employ agents kept to. their tasks partly by conscience (some of them, at least, give undertakings upon appointment, and recognize the natural duty of fidelity), and also by self-interest, for example, hope of promotion or fear of penalties inflicted by other agents with similar motives. (5) These agents put questions to members of the public (for example, on tax forms and customs declarations) and enter into various contracts with them, thus bringing into play natural duties of truthfulness and fidelity; and members of the public form ties with one another in similar ways. This situation is still, in Locke's terms, the state of nature,[Note 42] but it seems to me that the natural duties to tell the truth, to keep promises and especially the duty to preserve life (bearing in mind the need to adapt one's actions to those of others---see above) might well suffice to reduce the inconveniences of the state of nature to a tolerable level without any such thing as political obligation: that is, without anyone regarding what the law requires as morally binding just because the law requires it. In some circumstances it might be best to form a community in Locke's sense, in others it will be unnecessary.[Note 43] But Locke's argument will still have a point, namely that in surrendering one's freedom of action to any of the more particular organizations, in giving undertakings to any employer, in entering into contracts and marriages with other persons or organizations, men and women must preserve some freedom to act on their own individual judgment at least in exceptional cases, especially when they suspect that the arrangement is being .turned to unjust purposes. It does not come to much, perhaps, but it is a rejection of certain views of loyalty which some still hold.
Kilcullen, "The Origin Of Property:
Ockham, Grotius, Pufendorf, And Some Others"
---------, Reading Guide, Locke's Two
Treatises.
---------, Note: Political obligation
---------, Reading Guide: Locke on
Toleration
---------, "Bayle on the Rights of
Conscience"
Green, Leslie, "Legal
Obligation and Authority", The Stanford Encyclopedia of
Philosophy (Spring 2004 Edition)
Simon Cushing, "Rawls
and 'Duty-Based' Accounts of Political Obligation"
Author not identified: "Lecture
3: Locke and political legitimacy"
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Note 1. References not otherwise explained will be to John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge, 1960). Numerals refer to sections, or to sections and lines, of the Second Treatise. E.g., "135" means section 135, "65:25-6" means lines 25-6 of section 65.
Note 2. Plato and Aristotle considered consent, the rule of law, and orientation to the public good as possible criteria of good government, and decided that the third is basic; see Plato Pol. 291e ff.; Aristotle Pol. 1282 b 1-15, 1279 a 18-32. Plato's remarks on consent as distinguishing kingship from tyranny (Pol. 276e) were echoed by Aristotle (Pol. 1285 b 2, 1295 a 17 and 22, 1313 a 5 and 15), and thus came down to the Middle Ages; see Marsilius of Padua, Defensor Pacis, trans. A. Gewirth (New York, 1956), p. 32. (Notice Marsilius also on the rule of law [ibid., pp. 37-41; cf. Locke, 136-37] ). On consent in medieval writers see Paul E. Sigmund, Nicholas of Cusa and Mediaeval Political Thought (Cambridge, Mass., 1963), chaps. 4 and 6. On consent in early modern writers see Q. Skinner, Foundations of Modern Political Thought (Cambridge, 1978), 2:121-22, 161-66, 320-21, 329-31. By Locke's time the doctrine that political authority exists by consent for the public good was commonplace, as were many other elements of Locke's theory, though as far as I know not his use of the notion of private judgment. How much of the tradition Locke knew at firsthand, and how much was "in the air," I am not historian enough to trace. Comparisons in this paper are to illustrate philosophical possibilities, not to affirm historical influence.
Note 3. This is noted by John Dunn, "Consent in the Political Theory of John Locke," The Historical Journal, 10 (1967), 154.
Note 4. For an illuminating analysis of the relations between obligation, authority, power and consent see H. Beran, "In Defense of the Consent Theory of Political Obligation and Authority," Ethics, 87 (1977), 260-71.
Note 5. See Locke, 135:27-38, and compare Thomas Aquinas, Summa Theologiae 1-2, 95, 2 and Skinner, Foundations, 2:149. Locke might have agreed that positive law need not be a deduction from natural law but may be derived per modum determinationis.
Note 6. Whether Locke held (a) that positive legislation can do no more than interpret and determine natural law , or (b) that it can further the public good in any way consistent with natural law, is unclear (see 135). He probably held (a), i.e., that the positive law furthers the public good precisely by interpreting and enforcing natural law .If he held (b) a clause would have to be added to the definition of political power: "and to make and enforce other laws, consistent with natural law, which further the public good." This would make no difference to the argument of the rest of the paper .
Note 7. Locke's definition of political power in section 3 (and compare 65:25-6, 69:14-16) is of power in what I call the narrow sense. When he says at 95:3 and 119:3 that political power rests on consent, I take him to mean political power in the large sense, part of which (viz., political authority) does presuppose consent.
Note 8. This is not mentioned in Two Treatises; see the Letter Concerning Toleration (Indianapolis, 1950), p. 48 (quoted below, text to n. 18). Cf. Acts 5:29.
Note 9. Locke writes as if mankind consists of men, and generally I will follow suit---otherwise it might look as if Locke had taken a position on a question I do not think occurred to him. But notice that nothing in Locke's theory as I interpret it implies any difference of political rights or duties between men and women, and that it rules out at least the absolute forms of the subjection of women.
Note 10. Apparently there is a duty to enforce only this provision. Duties to God and moral duties as such are not enforced. by human agency, or by God in this life, though they are part of the law of nature. See Toleration, pp. 30, 42, 43, 46-48. Compare Marsilius of Padua, Defensor Pacis, pp. 163-73, and (for Luther) Skinner, Foundations, 2:175.
Note 11. For earlier use of "property" in this wide sense see Skinner, Foundations, 2:328. The wide sense of life perhaps comes from Aristotle, who said that the state exists "for the sake of a good life" (Pol 1252b 27, etc.); according to Marsilius it exists for sufficiency of life on this earth (Defensor Pacis, 13)---cf. Locke's "conveniencies of life" (34:3). What these terms cover Locke elsewhere calls "civil interests" (Toleration, p. 17).
Note 12. The basis of this duty is that all creatures belong to God because he made them (6:12-15). See David Gauthier, "Why Ought One Obey God? Reflections on Hobbes and Locke," Canadian Journal of Philosophy, 7 (1977), 425-46. Compare Thomas Aquinas, On the Truth of the Catholic Faith, book 3, part 1, trans. V. J . Bourke (New York, 1956), pp. 31-32.
Note 13. On ranks of creatures see R. Nozick, Anarchy, State and Utopia (New York, 1974), pp. 45-47.
Note 14. My "at least" is not in Locke's text, and neither is Cox's "only" ("A man is bound to preserve the rest of mankind as much as he can, but only 'where his own preservation comes not in competition'"; R. H. Cox, Locke on Peace and War [Oxford, 1960], p. 83). This text leaves the question open, but I believe that my interpretation is borne out by 16:7 and 10:10, and by the fact that Locke clearly expects us to accept risks to preserve others.
Note 15. It might be helpful to distinguish between "relative" and "absolute" states of nature: two persons, natural or artificial, are in the state of nature in relation to one another when they have no common superior on earth (9, 14, 145); a person is in the state of nature absolutely if he is in the state of nature in relation to every other person. The state of nature is in effect a privative term, defined by contrast with civil society: persons are in the state of nature when they do not have a common superior on earth to settle their disputes (19:6-9). Notice (1) "common," someone superior to both---the judge is not to be one of the parties to the dispute, since he cannot be his own superior; (2) "on earth"---God is everyone's superior , but he does not adjudicate and enforce his decisions in this life (see note 10 above).
Note 16. "Private judgment" was a term used in controversy between Catholics and Protestants. Catholics argued that God must have given authority to the Church and not left his will to be interpreted by each person's private judgment. Protestants denied this. Locke was so to speak a Catholic in political matters, but in religious matters he saw no likelihood of damage for lack of an authoritative interpreter provided that religious obligations are not enforced in this world; see note 10 above.
Note 17. "For all force. ..belongs only to the magistrate, nor ought any private persons at any time to use force unless it be in self-defense against unjust violence" (Toleration, p. 23). For the "unless" clause see section four below.
Note 18. Toleration, p. 48. Locke follows the traditional Protestant doctrine of passive obedience with two differences, the qualification "in political matters, for the common good," and the basing of obligation upon consent.
Note 19. Thomas Hobbes, Leviathan, ed. T. B. Macpherson (Harmondsworth, 1968), pp. 353-54.
Note 20. Notice the distinction between officeholder and office; see W. Ullman, Mediaeval Political Thought (Harmondsworth, 1975), p. 26.
Note 22. For precedents see Skinner, Foundations, 2:198-99, 202, 222-23, 224, 235. Some medieval writers had held that a heretical or notoriously sinful pope ipso facto ceased to be pope; see A. S. McGrade, The Political Thought of William of Ockham (Cambridge, 1974), pp. 51-52.
Note 23. This answers Hanna Pitkin's question whether by continuing to live under a tyranny one becomes obliged to obey the tyrant (see her "Obligation and Consent," in Philosophy, Politics and Society: Fourth Series, ed. P. Laslett, W. G. Runciman and Q. Skinner [Oxford, 1972], p. 54). Political obligation is owed to the community as duly represented, and not to its original or current form of government except qua representative: but a tyrant does not duly represent the community. Note that what each person consents to in joining a society is not "precisely the positive law-making system" or "more precisely. ..a continuing decision procedure." (J. Dunn, "Consent in the Political Theory of John Locke," p. 164), but to obey the community as represented in whatever way the majority consents to from time to time. This explains and justifies the "elision" Dunn remarks on (ibid., p. 171) in Locke's statement that a person can only be taxed "with his own consent, i.e., the consent of the majority, giving it either by themselves or their representatives" (140).
Note 24. Dissolution of the government may be due to a calamity that dissolves the community (121:18, 211:9f), but dissolution "from within" (212) leaves the community intact. According to Edmund Burke the compact which incorporates the community also determines its form of government; the dissolution of the government therefore returns members to the state of nature, and individuals may opt out of any new arrangement; see An Appeal from the New to the Old Whigs, in The Works of Edmund Burke, ed. F. W. Rafferty (Oxford, 1907), 5:90, 97-99. This is not Locke's theory.
Note 25. It had long been debated whether, by a lex regia, the people give up their power completely and permanently, or delegate it so that they keep the right to direct in detail and to revoke the delegation at will. See O. Gierke, Political Theories of the Middle Age, trans. F. W. Maitland (Cambridge, 1900), pp. 43-46, 150-53; R. W. Carlyle and A. J. Carlyle, A History of Mediaeval Political Theory in the West (Edinburgh, 1903-36), 2:60-67; 5:49; 6:13-19. Compare Plutarch, Life of Tiberius Gracchus, 15. To this question Locke gave a compromise answer which others had given before (see Gierke, Mediaeval Political Theory, p. 151. n. 164; McGrade, Ockham, pp. 106-107; Skinner, Foundations, 2:128; and Selections from Three Works of Francisco Suarez, S. J., trans. G. L. Williams, A. Brown, J . Waldron and H. David (Oxford, 1944), 2:387). According to this compromise the people do give their power up and cannot intervene in detail or revoke the grant at will, but they can revoke it if the ruler becomes a tyrant. Tyranny "is always understood to be exempted from the original agreement"; Suarez, Selections, p. 718, and cf. p. 855.
Note 26. The argument that "it is necessary the Body should move that way whither the greater force carries it, which is the consent of the majority" (96:8-10) does not imply equal votes but rather recognition of unequal force, e.g., in accordance with the balance of property. Perhaps Locke is thinking of the valentior pars rather than a majority in the democratic sense.
Note 27. They need not meet and vote. Express consent is required for membership (122:21), but perhaps tacit consent or acquiescence is enough in choosing a form of government. If the government is dissolved and the leaders of the revolution, or some surviving elements of the old government, set up a new regime or re-establish the old one, it may be enough if the majority acquiesce without a plebiscite.
Note 28. This sort of flexibility is also characteristic of many medieval theories, in which it is provided for example by: (a) Ockham's regulariter vs. casualiter distinction; (b) Aristotle's notion of epieikeia together with the idea that authority is given for edification not destruction; (c) such maxims as salus populi suprema lex and "necessity knows no law" (quod non est licitum lege necessitas facit licitum became a rule of Canon Law); (d) application to church and state of the civil law of corporations, which provided that the surviving members of a corporation can exercise its powers when its head cannot. See Sigmund, Nicholas of Cusa, pp. 96-99, 181; McGrade, Ockham, pp. 73, 78-80, 164; B. Tierney, "Ockham, the Conciliar Theory and the Canonists," Journal of the History of Ideas, 15 (1954), 44; B. Tierney, Foundations of the Conciliar Theory (Cambridge, 1955), pp. 77, 128-30, 168, 222-25 (notice the idea of a "quasi vacancy").
Note 29. In view of the possibilities mentioned in notes 26-28 men of property had no need to fear that on Locke's theory a quasi-vacancy of the throne would require a constitutional convention including common people (J. H. Franklin, John Locke and the Theory of Sovereignty [Cambridge, 1978], pp. 102ff). A convention would be required only on the novel and arbitrary "Lawsonian" principle that no branch of government can ever assume any function of another (ibid., p. 122n), to which (as the text above shows) Locke did not subscribe.
Note 30. Compare Locke's argument against giving the magistrate power in religion: "Nor can it be thought that men should give the magistrate power to choose for them their way to salvation, which is too great to give away. . . " (Essay Concerning Toleration, in Henry Fox Bourne, The Life of John Locke [London, 1876], 1:176-77). Compare Hobbes, Leviathan, p, 700. Why is the importance of a decision a reason for insisting on one's own judgment?
Note 31. Compare Suarez, Selections, pp. 715, 716; and contrast Hobbes, Leviathan, p.270.
Note 32. On the.natural right to oppose force to force and on resistance to an unjust Judge see Skinner, Foundations, 2:124-27. Some canon and civil lawyers had already made irreparability of damage the criterion of the right to resist; for example, Cinus de Pistorio wrote, "Aut est tale factum, quod reparari potest per iudicem appellationis,. et tunc expectabitur suum remedium, aut non potest reparari, et tunc sibi de facto resistetur" ( see Heinz Scheible, ed. , Das Widerstandsrecht als Problem der deutschen Protestanten 1523-1546 (Gutersloh, 1969], pp. 64-65).
Note 33. Sections 208, 209 and 230 refer not to the existence of a right to resist but to the likelihood that it will be exercised. Whether an individual acting on his own private judgment could kill a tyrant was a controversial question; see Suarez, Selections, 2:705-25. Unlike Suarez, Locke attributes to private individuals a right of punishment in the state of nature; but since this is a right which upon joining in civil society they wholly give up (130), and since dissolution of government does not dissolve civil society (211), the right Locke attributes to private citizens against a tyrant is a right of war, not of punishment. In this he agrees with Suarez, who also holds that a private individual has a natural right to defend his own body, and that of any other innocent person, against actual attack. However, Suarez distinguishes between attacks on individuals and attacks upon the commonwealth (which he thinks may not involve actual attack on the bodies of individuals), between an actual attack and fear of possible future attack, and between beginning a war and fighting when attacked, and he argues that to begin a war against a king because he has attacked the commonwealth, or may possibly attack individuals, requires authorization by the commonwealth acting through its other organs ( or, presumably, through organs set up ad hoc). Locke does not make such distinctions, and even disparages them (see 210, 220:10-23, 225, 230), leaving it to be understood that the right of defense allows private individuals to initiate rebellions.
Note 34. Compare note (21) above. Suarez also held that for some things such as heresy a king is ipso facto deposed, but (like most medieval writers on the case of a heretical pope) thought that a trial and declaratory judgment by some representative of the commonwealth is still necessary; see Suarez, Selections, 2:717, and Tierney, Conciliar Theory, pp. 213-16.
Note 35. In fact, as I will suggest below, ordinarily the community may not need members committed to obeying the law as a matter of conscience.
Note 36. Compare Suarez, Selections, 2:402-406.
Note 37. On consent in Locke see John Dunn, "Consent in the Political Theory of John Locke," and Hannah Pitkin, "Obligation and Consent," pp. 53-57; Dunn endorses Pitkin's account of the structure of the concept (p. 182, n. 117). My reading of Locke is different. In my opinion he must mean actual consent (express or tacit), not hypothetical; a person does not consent, even tacitly, merely by doing something that others may reasonably construe as making him liable to certain rules (see Dunn, pp. 160, 163 (point (4)), 168). I am not persuaded by Hanna Pitkin's argument that lack of choice in the terms of the contract makes personal consent irrelevant: even if there is only one possible contract, it matters whether one subscribes or not---it makes the difference between being a member and being a mere resident. At stage 2 (see above) there is a choice, in which a member's preference counts while a mere resident's does not.
Note 38. For some of these criticisms and others see J. Plamenatz, Man and Society (London, 1963), 1:241-49, and R. Nozick, Anarchy, p. 174ff. Certain traditional criticisms are obviated by the reinterpretation convincingly argued by J . Waldron, "Enough and as Good Left for Others," The Philosophical Quarterly, 29 (1979), 319-28; what Nozick has called the "Lockean proviso" is in Locke's theory not a proviso.
Note 39. Cf. H. Sidgwick, The Methods of Ethics (New York, 1966), pp. 276-77.
Note 40. Cf. David Hume, Treatise of Human Nature, bk. 3, pt. 2, sec. 9, and "Of Passive Obedience" in Essays Moral and Political. Hume's theory is Locke's generalized, without any special place given to promises. As I have argued, Locke's conclusion does not rest on the proposition that political obligation arises only from a promise, but on the proposition that rights which even an explicit promise would not abrogate will not be abrogated or overridden in any other way (see above).
Note 41. On possibilities of coordination without directing authority see T. Schelling, The Strategy of Conflict (Cambridge, Mass., 1963), J. L. Mackie, "The Disutility of Act-Utilitarianism," The Philosophical Quarterly, 23 (1973), 289-300; and David Gauthier, "Coordination," Dialogue, 14 (1975), 195-221.
Note 42. It is sometimes argued that by voting or other participation a person incurs political obligation (unless he openly rejects it beforehand), since he must know that the others would not allow him to participate unless they assume he holds himself obliged by the outcome; see, for example, A. Weale, "Consent," Political Studies, 26 ( 1977), 677, esp. pp. 71-72, 75-76. But it could just as well be argued that, if the others do not demand a pledge beforehand, since they must know that some people may acknowledge no duty in conscience to abide by the outcome, then they must be willing to accept participation without commitment. Since we can expect most decisions to be carried out anyway, for example by officials motivated by conscience, self-interest or habit, whether those opposed to the decision feel bound in conscience or not, it is simply not true that political practices make sense only on the assumption that all participants acknowledge political obligation.
Note 43. John Rawls, in A
Theory of Justice (Oxford, 1972), pp. 333-37, 354, argues
that behind the veil of ignorance people will decide to
acknowledge a natural duty to obey the law. I suggest that they
will not, but will decide whether to assume a political obligation
when they know more about the circumstances.
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