Consent, Political Obligation, and the Ends of Government

The most direct reading of Locke's political philosophy finds the concept of consent playing a central role. His analysis begins with individuals in a state of nature where they are not subject to a common legitimate authority with the power to legislate or adjudicate disputes. From this natural state of freedom and independence, Locke stresses individual consent as the mechanism by which political societies are created and individuals join those societies. While there are of course some general obligations and rights that all people have from the law of nature, special obligations come about only when we voluntarily undertake them. Locke clearly states that one can only become a full member of society by an act of express consent (Two Treatises 2.122). The literature on Locke's theory of consent tends to focus on how Locke does or does not successfully answer the following objection: few people have actually consented to their governments so no, or almost no, governments are actually legitimate. This conclusion is problematic since it is clearly contrary to Locke's intention.
Locke's most obvious solution to this problem is his doctrine of tacit consent. Simply by walking along the highways of a country a person gives tacit consent to the government and agrees to obey it while living in its territory. This, Locke thinks, explains why resident aliens have an obligation to obey the laws of the state where they reside, though only while they live there. Inheriting property creates an even stronger bond, since the original owner of the property permanently put the property under the jurisdiction of the commonwealth. Children, when they accept the property of their parents, consent to the jurisdiction of the commonwealth over that property (Two Treatises 2.120). There is debate over whether the inheritance of property should be regarded as tacit or express consent. On one interpretation, by accepting the property, Locke thinks a person becomes a full member of society, which implies that he must regard this as an act of express consent. Grant suggests that Locke's ideal would have been an explicit mechanism of society whereupon adults would give express consent and this would be a precondition of inheriting property. On the other interpretation, Locke recognized that people inheriting property did not in the process of doing so make any explicit declaration about their political obligation.
However this debate is resolved, there will be in any current or previously existing society many people who have never given express consent, and thus some version of tacit consent seems needed to explain how governments could still be legitimate. Simmons finds it difficult to see how merely walking on a street or inheriting land can be thought of as an example of a “deliberate, voluntary alienating of rights” (69). It is one thing, he argues, for a person to consent by actions rather than words; it is quite another to claim a person has consented without being aware that they have done so. To require a person to leave behind all of their property and emigrate in order to avoid giving tacit consent is to create a situation where continued residence is not a free and voluntary choice. Simmons' approach is to agree with Locke that real consent is necessary for political obligation but disagree about whether most people in fact have given that kind of consent. Simmons claims that Locke's arguments push toward “philosophical anarchism,” the position that most people do not have a moral obligation to obey the government, even though Locke himself would not have made this claim.
Hannah Pitkin takes a very different approach. She claims that the logic of Locke's argument makes consent far less important in practice than it might appear. Tacit consent is indeed a watering down of the concept of consent, but Locke can do this because the basic content of what governments are to be like is set by natural law and not by consent. If consent were truly foundational in Locke's scheme, we would discover the legitimate powers of any given government by finding out what contract the original founders signed. Pitkin, however, thinks that for Locke the form and powers of government are determined by natural law. What really matters, therefore, is not previous acts of consent but the quality of the present government, whether it corresponds to what natural law requires. Locke does not think, for example, that walking the streets or inheriting property in a tyrannical regime means we have consented to that regime. It is thus the quality of the government, not acts of actual consent, that determine whether a government is legitimate. Simmons objects to this interpretation, saying that it fails to account for the many places where Locke does indeed say a person acquires political obligations only by his own consent.
John Dunn takes a still different approach. He claims that it is anachronistic to read into Locke a modern conception of what counts as “consent.” While modern theories do insist that consent is truly consent only if it is deliberate and voluntary, Locke's concept of consent was far more broad. For Locke, it was enough that people be “not unwilling.” Voluntary acquiescence, on Dunn's interpretation, is all that is needed. As evidence Dunn can point to the fact that many of the instances of consent Locke uses, such as “consenting” to the use of money, make more sense on this broad interpretation. Simmons objects that this ignores the instances where Locke does talk about consent as a deliberate choice and that, in any case, it would only make Locke consistent at the price of making him unconvincing.
Recent scholarship has continued to probe these issues. Davis closely examines Locke's terminology and argues that we must distinguish between political society and legitimate government. Only those who have expressly consented are members of political society, while the government exercises legitimate authority over various types of people who have not so consented. The government is supreme in some respects, but there is no sovereign. Van der Vossen makes a related argument, claiming that the initial consent of property owners is not the mechanism by which governments come to rule over a particular territory. Rather, Locke thinks that people (probably fathers initially) simply begin exercising political authority and people tacitly consent. This is sufficient to justify a state in ruling over those people and treaties between governments fix the territorial borders. Hoff goes still further, arguing that we need not even think of specific acts of tacit consent (such as deciding not to emigrate). Instead, consent is implied if the government itself functions in ways that show it is answerable to the people.
A related question has to do with the extent of our obligation once consent has been given. The interpretive school influenced by Strauss emphasizes the primacy of preservation. Since the duties of natural law apply only when our preservation is not threatened (2.6), then our obligations cease in cases where our preservation is directly threatened. This has important implications if we consider a soldier who is being sent on a mission where death is extremely likely. Grant points out that Locke believes a soldier who deserts from such a mission (Two Treatises 2.139) is justly sentenced to death. Grant takes Locke to be claiming not only that desertion laws are legitimate in the sense that they can be blamelessly enforced (something Hobbes would grant) but that they also imply a moral obligation on the part of the soldier to give up his life for the common good (something Hobbes would deny). According to Grant, Locke thinks that our acts of consent can in fact extend to cases where living up to our commitments will risk our lives. The decision to enter political society is a permanent one for precisely this reason: the society will have to be defended and if people can revoke their consent to help protect it when attacked, the act of consent made when entering political society would be pointless since the political community would fail at the very point where it is most needed. People make a calculated decision when they enter society, and the risk of dying in combat is part of that calculation. Grant also thinks Locke recognizes a duty based on reciprocity since others risk their lives as well.
Most of these approaches focus on Locke's doctrine of consent as a solution to the problem of political obligation. A different approach asks what role consent plays in determining, here and now, the legitimate ends that governments can pursue. One part of this debate is captured by the debate between Seliger and Kendall, the former viewing Locke as a constitutionalist and the latter viewing him as giving almost untrammeled power to majorities. On the former interpretation, a constitution is created by the consent of the people as part of the creation of the commonwealth. On the latter interpretation, the people create a legislature which rules by majority vote. A third view, advanced by Tuckness, holds that Locke was flexible at this point and gave people considerable flexibility in constitutional drafting.
A second part of the debate focuses on ends rather than institutions. Locke states in the Two Treatises that the power of the Government is limited to the public good. It is a power that hath “no other end but preservation” and therefore cannot justify killing, enslaving, or plundering the citizens. (2.135). Libertarians like Nozick read this as stating that governments exist only to protect people from infringements on their rights. An alternate interpretation, advanced in different ways by Tuckness, draws attention to the fact that in the following sentences the formulation of natural law that Locke focuses on is a positive one, that “as much as possible” mankind is to be preserved. On this second reading, government is limited to fulfilling the purposes of natural law, but these include positive goals as well as negative rights. On this view, the power to promote the common good extends to actions designed to increase population, improve the military, strengthen the economy and infrastructure, and so on, provided these steps are indirectly useful to the goal of preserving the society. This would explain why Locke, in theLetter, describes government promotion of “arms, riches, and multitude of citizens” as the proper remedy for the danger of foreign attack (Works 6: 42)

Consent, Political Obligation, and the Ends of Government

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Consent, Political Obligation, and the Ends of Government