Social and Political Philosophy

Spring-Summer 2004

Lecture 3: Locke and political legitimacy

(NB References are to paragraphs of the Second Treatise on Government, CUP edition. Some editions number the paragraphs slightly differently in chs. 4 and 5. In the CUP edition ch. 3 begins with §16, ch. 4 with §22, ch. 5 with §25, ch. 6 with §52, etc.)

1. Natural law and natural rights

Hobbes and Locke: At first sight Locke’s account of political legitimacy looks quite similar to Hobbes’s. He begins with a state of nature and argues that a legitimate state comes into existence through a contract. But there are fundamental differences. Although Hobbes speaks of ‘natural rights’ and ‘natural laws’ they seem to be simply ‘what my own (instrumental) reason permits and orders me to do for my own preservation’. Thus his natural rights imply no correlative duties on the part of anyone else. So his state of nature is a moral vacuum. By contrast for Locke humans have natural rights in a sense that includes a moral duty on others to respect those rights.

The idea of a natural law in Locke: a law that is normative (unlike the laws of physics), independent of actual laws enacted by any particular state, and universal in that it applies to all of humankind and is known by reason (a different conception of reason from Hobbes’s). The idea of a natural right: a permission under natural law to do something, correlated with duties on the part of others (under natural law) not to interfere.

Men are intended by God for certain purposes and are his property since he made them. Therefore (the ‘fundamental law of nature’) each ought to preserve himself and, as long as it does not endanger his own self-preservation, do as much as he can to preserve the rest of mankind. So ‘no-one ought to harm another in his life, health, liberty or possessions’. So everyone has a natural right to his life, health, liberty and possessions (§§ 6-7, 16), with correlative duties of non-interference on the part of others.

What is a right to liberty? Perhaps a right to do whatever one wants as long (as this does not interfere with others doing likewise). This is central to his idea of natural law. Humans must treat each other as autonomous, i.e. ‘sovereign individuals’. (Later developed by Rousseau without the trappings of natural law)

Also, all persons are ‘moral equals’. We all have the same natural rights, or: no-one has any superior status to anyone else under natural law. There is no class or family or race of human beings who are endowed by natural law with any superior rights. No-one has a right to act towards another person in any way except insofar as the other person has the same right with respect to the first. (NB although Hobbes speaks of humans in the state of nature as equal, all he means is that they are more or less equally strong and clever).

So natural law designates all humans as ‘free and equal’.

NB Locke seems to begin with the idea that humans are to be preserved, which looks a bit like the utilitarian idea that human happiness is to be maximised. But his conclusion is that each individual must respect the life, health, liberty and possessions of all others. So his natural rights seem to be built on a quasi-utilitarian basis.

2. Property

Locke also says everyone has ‘property in his own person’. What is this? Perhaps a right of ‘self-ownership’, i.e. a right to use and abuse one’s own body, or to exclusive control over one’s own body (on the analogy of property in things), as long as this does not violate the similar rights of others. So it is the same as right to liberty. This is a ‘general right’ – a right that all persons have.

In addition he also argues that we can also acquire ‘property in things’, i.e. natural property rights in land and material goods, by ‘mixing our labour’ with them. These are ‘special rights’ - rights that persons acquire by specific actions. This is his normal meaning of ‘property’.

(NB He seems to be aware that he is using ‘property’ ambiguously. At one point he says that by ‘property’ he mean ‘life, liberty and estates’.)

It seesm fair to assume that when Locke says the aim of the state is to preserve ‘property’ he means both of these kinds of right. If we bracket property in land and goods and focus on property in one’s own person, as I shall, then Locke has an argument for the state, and for the conditions under which it can be legitimate, that deserves to be taken seriously independently of what we think about private property. (We will postpone a discussion of the idea of natural property rights till later in the course.)

3. The executive power of the law of nature

Locke’s argument for an executive power of the law of nature: If people have natural rights then others have the correlative duties (specifically: duties of non-interference). But if a moral duty is severe enough then someone must have a right to enforce it – it can’t be left to chance whether the person with the duty will fulfil it. So there must be a second-order natural right specified by the law of nature to (a) prevent and (b) punish violations of the initial natural rights of individuals. This will override the first-order rights of the invader.

But all persons are ‘moral equals’. So if anyone has this right of prevention and punishment, then everyone must have it. This right is the “executive power of the law of nature” (EPLN). We all have first-order natural rights and this second-order natural right to enforce one’s own or another person’s first-order rights. Presumably the law of nature stipulates how much force/violence may be used for any given infringement of natural rights.

Compare the right of self-defence in international law, or in English domestic law: you have a right to use violence to prevent someone from attacking you, and to prevent someone from attacking a third party, in circumstances where the police are not available to prevent the attack.

4. Forming a legitimate state

Locke’s argument to justify the state: We all sense the dictates of natural law, but don’t always obey it. So there will be violations of natural rights. Furthermore, we don’t all have a clear sense of what is justified by EPLN. So there will be disputes. Those injured are likely to punish excessively because of desire for revenge, for example. An impartial authority is needed which unifies everyone’s EPLN, giving it the right of making and enforcing on everyone laws that protect individual (first-order) natural rights. This is ‘political right’ (state’s right) – the right of the state. A legitimate state is broadly one that has this right (a natural right, i.e. a right under natural law) to coerce everyone in a given territory. For Locke such a state can arise from the state of nature by two stages:

(1) Everyone engages in a social contract to alienate their EPLN to themselves as a body (forming a ‘community’). That is, they agree not to exercise that EPLN individually but instead only to exercise it by collective agreement. (Thus he must assume that according to natural law EPLN is an alienable power). But pooled EPLN is unwieldable – people would still disagree about how to use it. So by contracting to pool their EPLN they tacitly consent to the result of the next stage.

(2) Everyone entrusts (delegates) their pooled EPLN to a constitutional system (Locke says ‘a government’, by which he means a form of government) that is favoured by the majority, and thus to the persons designated as the supreme decision-makers within that constitutional system (the king within a monarchical system, parliament within a representative democracy etc.). Majority decision-making is the only kind that can respect people’s moral equality, so the constitutional system must be decided on in this way. A given state (and the supreme figures within its constitutional system) has the EPLN of the population, under natural law, if it has acquired it in this way. If in addition it wields this EPLN in accord with natural law (i.e. accord with what the law of nature states about the extent of the EPLN – how much force can be used under what circumstances to prevent or punish first-order natural rights), then it is a legitimate state.

So legitimacy rests on two kinds of consent present in the social contrac: explicit and tacit.

Tacit consent: consent means agreeing to something being done. Normally consent is explicit (by giving a sign or uttering a sentence or signing a document), but consent can be tacit (literally ‘silent’). The commonest kind of tacit consent is ‘consent by omission’, i.e. by doing nothing in specifically designated circumstances (e.g. saying nothing in response to the question ‘Does anyone object to me doing X?’ counts as consent to the speaker doing X). But here Locke is invoking a different kind of tacit consent: he is arguing that if you do something (here, pooling your EPLN) which makes no sense unless something further is done (here, delegating that EPLN to a constitutional system and to the supreme figures within it), then the act of doing the first thing carries with it a tacit consent to the second thing being done. This can be called ‘consent by associated action’.

NB under what circumstances can these transfers of the EPLN be reversed? The initial transfer is an alienation: the EPLN has been given to the community and remains there as long as everyone abides by the terms of the contract. Presumably if a certain proportion of people cease abiding by those terms then Locke would say that the contract becomes invalid (like Hobbes), in which case the EPLN would revert from the community to individuals. The second transfer is a delegation: the EPLN is ‘lent’ by the community to a given constitution and the supreme figures within it. But it always has the right to take back that loan. If the majority ceases to consent to this constitution, for whatever reason, then the community can take back the EPLN and invest it in a different constitution. This is the essence of Locke’s theory of justified rebellion or revolution.

5. Judging the legitimacy of existing states

Locke’s argument is historical, but probably no state originated in the way he describes. To make Locke’s account of legitimacy useful we need to think of consent as ‘attitudinal’ – consisting in an attitude of ‘agreeing with X being done’ rather than an act of signalling that one agrees, whether explicitly by verbal statement, raising hand etc. or tacitly by omission, or tacitly by associated action (Lloyd Thomas). Then the state has the EPLN of the population, according to natural law, if everyone in the population ‘attitudinally’ consents to the idea of some kind of state exerting this power on their behalf and if the majority attitudinally consents to it being exerted through the actual constitutional system of the state. A legitimate state is one that has aquired this pooled EPLN in accordance with natural law and that uses violence/force only in accordance with the EPLN (so consent alone is not enough for legitimacy).

Comment 1: the argument seems to make even a single anarchist (who does not agree with any form of state) enough to render the state illegitimate. This looks like a real problem for Locke. If he just says ‘as long as 99% agree to transfer their EPLN the EPLN of the last 1% can be transferred without their consent’ then he seems to be saying that your EPLN can be taken away from you by the majority, yet how can he say this without saying that the majority could also take away your first-order natural rights (undermining the very idea of a natural right). Locke’s 20th century successor, Robert Nozick, in his reconstruction of Locke’s story about the emergence of a legitimate state, argued that the EPLN could legitimately be taken without their consent from individuals who would not give it up voluntarily (‘John Waynes’ as he called them), as long as they were compensated with a lump sum payment of cash, but this solution has been heavily criticised.

Comment 2: Locke’s view is that any constitutional system (democratic or not) is legitimate if it has the EPLN of the population through their consent (of the above two-fold kind) and if its coercive acts do not go beyond that EPLN (are in accordance with it). Given his starting point of moral equality, should Locke have gone farther and said that the constitutional system itself must be democratic? Or can an undemocratic system be legitimised by the fact that the majority are in favour of it (attitudinally consent to it)?

6. Locke and political obligation

Political legitimacy normally means both right to coerce (‘legitimate power’) and the right to command (‘legitimate authority’). So far we talked about the former in Locke. The latter would involve a correlative duty on the part of subjects to obey, and this is the minimal content of the idea of a political obligation. Is Locke able to show that a state which has legitimate power (by his above criteria) also has legitimate authority, i.e. that its citizens have a political obligation to obey it?

Political obligation: a moral obligation to (1) obey the laws of your state (equivalent to ‘legitimate authority’) (2) support your state in other ways. For example, by enlisting to fight when there is a voluntary conscription. Here I shall focus on (1). (NB some have also interpreted ‘political obligation’ to mean ‘a moral obligation to be political, to engage in the political realm in some way, not necessarily to support one’s own country e.g. to fight for global justice, but I will leave this aside here.) The ‘problem of political obligation’ is that of whether we do have such an obligation. Three clarifications:

(a) Self-interested reasons to obey the law (fear of punishment, Hobbes’s argument) vs. a moral reason to do so – the latter is political obligation. So although Hobbes (1) defines one as having an obligation to the sovereign by virtue of having made a valid covenant to obey him and (2) gives an argument for why fulfilling such ‘obligations’ is required by instrumental rationality, he does not believe in political obligation in the normal sense of a moral obligation.

(b) The moral reason need not be an indefeasible one, i.e. those who claim that there is such a thing as political obligation do not say that the obligation to obey the law always outweighs every other moral obligation. For example in an emergency the moral obligation to save a person’s life could outweigh the obligation to stop at a red light or obey the parking regulations.

(c) Political obligation is a moral obligation to do X just because the law requires it, independently of whether morality requires us to do X anyway.

(d) Political obligation is meant to be an obligation to obey the laws of your own state, the state of which you are a citizen, not the laws of any state you happen to be resident in or travelling through. This is called the ‘particularity requirement’ (Simmons).

Arguments for political obligation always rely on some background moral assumptions (e.g. that people have a moral obligation to keep their promises). The idea is to use moral assumptions which are so widely shared that almost no-one would dispute them. Whether the morality in question is an absolute one, grounded in God’s will or somehow written into the fabric of the universe, or whether it is just a matter of social convention, or of convictions shared between the readers and writers in a given debate, can be bracketed for the purpose of asking whether political obligation follows from certain widely accepted moral assumptions.

Locke’s argument for political obligation is a ‘consent’ argument: we have a moral obligation to obey because we have consented through some kind of act. For Locke and liberals generally (‘liberals’ are those who make individual freedom, understood as not being interfered with by other people or the state, the centrepiece of their political beliefs) this is the only way you can become obliged to obey another (the principle of self-imposition) because (in Locke’s case) humans have a natural right to liberty, and thus no-one has a natural right to tell or force anyone else to do what they do not want to. But very few people, e.g. in Britain today, have expressly consented to obey the law (e.g. by signing a statement promising to do so; only naturalised citizens have done this), and the consent of ancestors will not do (my consent only puts me under an obligation, not my children or grandchildren).

We might say that as long as someone has attitudinally consented to a state (and the majority attitudinally consent to the present kind of state) then that person has consented to this kind of state and so is obligated. But how do you know whether in a given society people do attitudinally consent in the way required? You would have to be able to look into their hearts. Also, political obligation would last only as long as the attitudinal consent so would be precarious, and would not apply at all to e.g. anarchists, since they lack the necessary attitudinal consent. Yet Locke wants to demonstrate that all citizens are under a moral obligation to obey the law, not just some. (NB this is a fundamental problem for all consent theories, for if consent is voluntary then there must be the possibility that some will not consent, in which case those people will not be under political obligation.)

So instead Locke argues that tacitly consented. Locke’s argument is effectively, that anyone who remains in the country tacitly consents (by omission) to the laws, because they have chosen not to emigrate (§§114-122, 197-242). (This is not so stupid - people used mass emigration to show a state is illegitimate in case of Taliban and Iraq).

The standard critique of Locke’s argument: the background moral assumption in the argument is that if you consent to do something then you are under a moral obligation to do it (like a promise). But this is only credible if the consent is:

(a) conscious: the actor knows that they are consenting, and what they are consenting to, by performing the act that gives consent. For example if a foreigner walks into an auction house and scratches his head at the moment the auctioneer says ‘Am I offered £500,000 for this painting?’, not realising that scratching one’s head signifies an offer, we would not say that he is under any obligation to pay up.

(b) voluntary: the actor could refrain from the act without excessive cost or difficulty. For example, if the chairman of the board says to the other directors ‘I propose we do X. Please raise you hand if you object,’ and the directors know that if they raise their hands then they will lose their job and their golden handshake, consent would be indicated by an omission (not raising a hand), but refraining from this omission (i.e. raising a hand) would be very costly for them. If he says ‘I propose we do X. If anyone objects please indicate by taking a triple backward somersault’ then consent would be indicated by an omission (not doing the somersault), but refraining from this omission (i.e. doing the somersault) is very difficult. (Simmons)

Tacit consent by omission is a valid idea (there can be conventions under which you signal your consent by not doing anything) but these same conditions must apply to it, and merely staying in the country does not fulfil either condition. It is not conscious because no-one is told that staying in the country counts as consenting to obey the law, so they are not aware that their omission has this significance. And it is not voluntary because for most people it would be both very difficult and very costly to emigrate (see Hume’s example of a man who cannot swim being drugged and dragged onto a ship, then waking up when it is at sea; Hume says ‘No-one would say that because he does not jump overboard he thereby consents to obey the captain’; it would be so difficult and costly to do this that refraining from doing it cannot count as a voluntary act.)