LOCKE ON PROPERTY AND POLITICAL OBLIGATION
_________________________________________________________________________________
1. It is a cardinal tenet of liberalism, in one central meaning of that semantically promiscuous term, that each human being is the sovereign owner of her own person, and, consequently, the sole rightful authority over the use of its powers, which means that she may not be required to exercise them on behalf of others, unless she has agreed to do so. Not all those who are now called liberals affirm that tenet, which I call the thesis of self-ownership. John Rawls and Ronald Dworkin, whom it might be paradoxical to call nonliberals, fairly explicitly reject it. For they hold that, since it is a matter of mere luck what powers one is born with, those who are well endowed with talent have enforceable duties toward those with limited powers, duties which are inconsistent with full rights of self-ownership. But others who are eager to call themselves liberals, such as Robert Nozick in the United States and Antony Flew in Britain, deny that such thinkers as Rawls and Dworkin are true liberals, precisely because the latter deny the self-ownership thesis. They have, however, abandoned the fight to keep the name, and they now therefore style themselves “libertarians.”1
Now a thinker who explicitly affirms liberalism in the just-defined sense, and who is, therefore, among other things, the grandfather of libertarianism, is John Locke, but the passages in the Second Treatise of Government in which he does so2 raise two problems for him, and it is his solution to those two problems that I’ll discuss in these lectures.
First, the texts that raise the problems, and then a statement of what the problems are.
In paragraph 27 of the Second Treatise Locke contrasts the condition of things which aren’t human beings with that of things which are, with respect to what sort of rights people have in them. He says that “[t]hough the earth and all inferior creatures be common to all men, yet every man has a property in his own person: this nobody has any right to but himself.”3 And the point is repeated at paragraph 44, where he says that “though the things of nature are given in common, yet man [is] master of himself and proprietor of his own person and the actions or labour of it.”4 Again, in paragraph 123 he describes “man in the state of nature” as “absolute Lord of his own person”:5 and see further, paragraph 32 (“which another had no title to”),6 and paragraph 190.7
2. The two problems arise out of Locke’s desire to defend the legitimacy of two institutions of the established order, which are private property on the one hand, and legitimate government on the other. To defend private property, he has to show how a person’s self-ownership can be expanded to include what is not that person. To defend legitimate government, he has to show how self-ownership can be contracted, so that what were rights over myself, for example of self-defense, and of punishing offenders, become rights that government now has, and I have, consequently, a political obligation to government.
(i) This is the first problem: if the earth is given by God in “common to all men,” then how may people increase the domain of their ownership so that it extends beyond their own persons to include private property in external things? Why doesn’t private ownership of external things represent an unacceptable inflation of self-ownership, given that God gave the earth to us in common? What could justify the extension of ownership beyond the bounds of the self, and how could such an extension, if justified in principle, be justifiably accomplished? The questions I am thereby trying to distinguish can also be distinguished as follows: why should there be some or other legitimate way of forming private property in external things, and, if there should be such a way, what should that way be? This is like Hart’s valuable distinction between the general justifying aim (e.g. deterrence) of punishment and its principles of distribution (e.g. that it may only be of offenders).8 An answer to the question of the general justification of private property might not readily yield an answer to the question of how particular cases of property-ownership may legitimately be established.
Note that one might proceed in two different ways with this first problem. The first is to show that self-ownership, together with other plausible premises, justifies ownership of private property. The second is to justify private property without resting the justification on self-ownership, though, of course, in a manner consistent with it. I think that there are both kinds of justifications of private property kinds in Locke.
(ii) The second problem is in a way the opposite of the first, although the two problems are not usually recognized as standing in this contrastive relation. This is the second problem: if people own themselves, then with what right are social and political obligations of an enforceable kind laid upon them? Why don’t such obligations constitute an unacceptable deflation of self-ownership? How, to use language drawn from paragraph 123, does a being who is “absolute Lord of his own person” and “subject to no Body” rightly come under the “dominion and control of [an] other power”?9
3. Note the emphasis on enforceability in the statement of the problem in 2(ii). It needs to be emphasized because moral obligations of an unenforceable kind are clearly consistent with self-ownership. I may be morally obliged to give succor to people in distress, but that is consistent with my self-ownership, since, if I am merely morally obliged to do so, so that it would nevertheless violate my rights to force me to do so, then my rights of self-ownership are thus far not abridged: I am entitled not to assist them; it’s just that it would be morally wrong for me not to do so—in not doing so, I should be exercising my right of self-ownership in a morally shameful or shabby way. (Analogously, you do not challenge my ownership right in my land when you claim that I behaved shabbily when I forbade a traveler to sleep on it.)
It is important to bear in mind that only enforceable obligations go against self-ownership when considering the attempt by recent authors, and notably by James Tully,10 to deny, in effect, though they do not put it that way, that Locke affirms the thesis of self-ownership in his Two Treatises. They use, to this end, three arguments: an isolated text in which Locke lays duties of charity on people;11 the many texts in which he lays on them duties of nonaggression which, as I show elsewhere,12 they unpardonably assimilate to the first sort of text; and the argument that men cannot own themselves because they are owned by God.
(i) The charity passage is the most potent of these three arguments against attributing the thesis of self-ownership to Locke, but even it is somewhat moot with respect to the point in dispute, because Locke does not say—though he also does not deny—that the duty of charity is to be enforced by the state. The text itself is consistent with a distinction between duties of justice and duties of charity, with the latter distinguished from the former in not being coercively enforceable.
As Justice gives every Man a Title to the product of his honest Industry, and the fair Acquisitions of his Ancestors descended to him; so Charity gives every Man a Title to so much out of another’s Plenty as will keep him from extream want, where he has no means to subsist otherwise; and a Man can no more justly make use of another’s necessity, to force him to become his Vassal, by with-holding that Relief, God requires him to afford to the wants of his Brother, than he that has more strength can seize upon a weaker, master him to his Obedience, and with a Dagger at his Throat offer him Death or Slavery.13
Now, you might think that Locke is speaking of something enforceable here, because of the analogy he draws between retaining resources while another starves and putting a dagger to another’s throat: the duty not to do the latter is certainly enforceable. But what’s analogous to the dagger is not retaining resources, but retaining them in order to enslave another. That’s what would be punishable, on the dagger analogy.
Setting aside the motif of forcing the indigent to labor for me, exactly what would be enforced if the independent (of that) duty of charity affirmed here is indeed enforceable? I would have to give him extra from my granary, but this does not imply that I am charged with the more severely self-ownership-compromising duty to labor for others, to produce for them what they cannot produce for themselves.
(ii) By contrast, the duty of nonaggression is certainly enforceable, but, far from being inconsistent with the thesis of self-ownership, it is an immediate entailment of it: it follows from the self-ownership of other people that I may not commit aggression against them. If I own myself and you own yourself, then my right to use my fist as I please stops at the tip of your nose, because of your ownership of your nose. That is why we can deny that there is a right of self-ownership in Hobbes’s state of nature: there is no such right precisely because “every man has a right [by which Hobbes means a liberty—GAC] to every thing; even to another’s body.”14 And it also follows from that universal right that in Hobbes’s state of nature, unlike Locke’s, there are no private property rights.
(iii) Sometimes, those wishing to deny, in the face of his plain statements of it, that Locke affirmed self-ownership invoke his theology, and, in particular, its principle that we were made by God and therefore belong to Him. But the fact that I am subject to God does not mean that anyone else (on earth) has the right to tell me what to do. Compare the person who bears Hobbesian sovereignty. He is entirely self-ruling, but he is nevertheless responsible to God. Compare, too, the Christian belief that God assigns to people a dutiful stewardship over external nature. That need not entail less liberal private property laws than what libertarians would affirm. If you have a full private property right, it does not follow that you have no obligations, for example ones laid down by God, about how to use it.
But God forbids suicide, and presumably the state can enforce that, for example, by punishing attempts and/or by forbidding sale of suicide-specific drugs. So the God thing does in small measure reduce self-ownership.
4. Locke’s answer to the first problem is the doctrine of legitimate private property formation that he lays out in chapter 5 of the Second Treatise. His answer to the second problem is the doctrine of contract and consent that he lays out in chapters 7 through 9, where he expounds his doctrine of political obligation.
5. I discern four arguments in justification of private property (of, that is, extending a person’s ownership beyond her ownership of herself)15 in chapter 5. I do not mean that they are presented as four distinct arguments by Locke. They are, rather, lines of justification, sometimes seemingly separate, and sometimes seemingly interlaced. I shall rehearse them very briefly, partly because I’ve written extensively about some of them, in texts I will refer to below:
(i) The survival argument.
Unless what is not privately owned is transformed into private property, people cannot make the use of it, which is indispensable to their survival; and, if you have any rights, you must have the right to do what is necessary for you to survive. Notice that this is not a labor argument for private property. You don’t have to think of opening your mouth, chewing, etc., as labor for this argument to go through. Note, also, that it isn’t a good argument. The mere right to eat is consistent with much less than full private property in the food I eat; for example, just a right to eat, but not also to destroy it or give it away, is enough. Basically communal property is consistent with survival. Monasteries are not (necessarily) death camps.16
This is the most famous one, and I won’t say anything in evaluation of it. It says: since people own their own labor, they own anything with which they inextricably mix it. Ownership of self can thereby be used to create ownership of what is not self.17
(iii) The proviso argument.
This says, that if, when privatizing, you leave “enough and as good for others,” no one can object, because no one is harmed, and, therefore, no one’s rights are violated.
Now, I call this the proviso argument because it is usually thought to be a proviso on argument (ii): it would be better to call it the “no harm” argument. Note that, far from being, as Locke thought, a proviso appendable to argument (ii), it is, in fact, inconsistent with that argument: if you own what your labor is in because your labor is in it,18 then it cannot be a condition of your ownership of the thing that you leave enough and as good for others. The principle that you own what you’ve put your labor in provided that you leave enough and as good is consistent, whatever justification it may have or lack. But the justification of ownership in terms of owned labor is inconsistent with the proviso. As Lloyd Thomas writes: “If, when you mix what you own with what is in common, you begin an ownership right in the thing previously in common [because of that mixing], then that must happen irrespective of whether you have left as much and as good for others, and irrespective of whether what you have mixed your labour with will waste uselessly in your possession. For these external circumstances do not affect the suffusing of that which is yours, your labour, with that with which you mix your labour.”19
But I think (iii) is an extremely powerful argument, indeed the most powerful of the four, when it is used just on its own, as it is in effect so used, whatever may have been his intention, by Locke at in paragraph 33:
Nor was this appropriation of any parcel of Land, by improving it, any prejudice to any other Man, since there was still enough, and as good left; and more than the yet unprovided could use. So that in effect, there was never the less left for others because of his inclosure for himself. For he that leaves as much as another can make use of, does as good as take nothing at all. No Body could think himself injur’d by the drinking of another Man, though he took a good Draught, who had a whole River of the same Water left him to quench his thirst. And the Case of Land and Water, where there is enough for both, is perfectly the same.20
Notice, again, that you need not regard opening your mouth and letting the water in as laboring to see the intuitive force of the argument which is simply that, since no one could conceivably have a grievance, the appropriation is unexceptionable. When I say this argument is extremely powerful, I mean that its major premise is. The minor premise will, in all the cases that matter, where anyone has reason to care that anyone has privatized something, be false.
(iv) The value argument.
Any useful thing on which labor has been bestowed owes (almost?) all of its value to that labor, and therefore rightly belongs, in the first instance, to whoever bestowed his labor on it, without which labor it would have remained virtually valueless.
Note that this is not the same as the labor argument. As I have written elsewhere:
Note now that the labour mixture argument is different from the argument, whose conclusion it shares. The value argument for legitimate appropriation has a different rationale from the argument for labour mixture, although many (and sometimes, perhaps, Locke) are prone to confuse the two. It is easy to confuse them, since it is (at least standardly) by labouring on something that you enhance its value, and perhaps your action on it should count as labour only if it does enhance its value. Nevertheless, in the logic of the labour mixture argument, it is labour itself, and not value-creation, which justifies the claim to private property. If you own what you laboured on because your own labour is in it, then you do not own it because you have enhanced its value, even if nothing deserves to be called “labour” unless it creates value. And, for the value argument, it is the conferring of value as such, not the labour by which it is conferred, that is essential. If you magically enhanced something’s value without labouring, but, say, by wishing that it were more valuable, then you would be entitled to whatever the value argument justifies you in having, even though you had not performed any labour.21 (You could say, in each case—you own it because you’ve laboured on it, but you have to continue differently: (i) + mixed something you own with it. (ii) + thereby rendered it valuable.)22
All of these arguments purport to show how human beings may legitimately extend their sovereignty beyond what they have over themselves, so as to encompass externals under that sovereignty, despite the fact that God gave the world to men in common. The labor argument exploits that initial self-ownership, arguments 1 (survival) and 3 (proviso) add to it without exploiting it, and argument 4 perhaps exploits it.
6. I pass to my second theme, which is Locke on political obligation. That problem is: how can the state’s commands be legitimate, given that persons are self-owning, and can therefore do with themselves as they please? The short answer is that the state’s commands are legitimate in virtue of the particular exercise of self-ownership rights that Locke calls consent, the relevant consent being a voluntary and conditional cession to the state of some of my rights. I shall look closely at consent from Section 11 on. But first, some more general remarks on Locke on the formation of the legitimate polity, and on how his view of that differs from Hobbes’s.
7. According to Hobbes, there are no obligations whatsoever in the state of nature. Each is free to do whatsoever he pleases. Or, perhaps, there is one obligation, to wit, to try to exit from the state of nature, provided that others are also trying.
For Locke, even apart from such an obligation, even if it is given that the state of nature will persist, freedom to do as you wish is restricted by the obligations of the law of nature, which every rational creature can discern, and which, importantly, every such creature has some greater or lesser disposition to follow. These laws of nature obligations are, as I said (see Section 3 (ii) above) substantially consistent with self-ownership: indeed, they flow largely from the self-ownership of other people. They are largely a matter of obligations of nonaggression against persons and nonviolation of the rights in the property that they legitimately gather or receive. They are obligations to respect what Locke, in a wide use of the term, calls property, that is, my life, my liberty, and my estate, the enjoyments that are properly mine. People are, as I said, not only aware of what the law of nature teaches, but also, with, importantly, some people being exceptions, largely disposed to follow it. Since there is no such recognized law in Hobbes’s state of nature, and the conditions of physical and human nature ensure23 that the state of nature is a state of war, it is easy to see why a political state is required for Hobbesian men, what they gain through its formation.
Since Locke’s men are in the main cognizant of and responsive to natural obligation, and not overweeningly proud or power-lustful but far more decently bourgeois, his state of nature does not so evidently as Hobbes’s take on the quality of a state of war. Yet it is almost certain, so Locke thinks, that it will do so. For not everyone is on balance disposed to obey the law of nature, and few (see paragraph 123)24 are disposed to obey it very strictly, and it is, moreover, hard to tell who’s a good guy and who’s not so good. And even if all were disposed to obey it utterly, three problems would remain, for which see paragraphs 124–26.25 First, there will be honest disagreement about the terms of the law of nature, in the absence of a legislature to specify them; second, there could be honest dispute about whether and to what extent the terms of the law of nature have been violated, in the absence of a judiciary to decide that; third, there might be no one disposed to enforce the law who has sufficient power to do so. So even Locke’s state of nature tends to break down into a state of war.
And to sign on to that story, you needn’t think, in the rather archaic way that Locke does, about people trying to discern and apply and enforce a divinely derived natural law. Just think about how people of goodwill who acknowledge morality but without a recognized authority over them would try to behave well but would be quarrelsome because of problems of interpreting what’s right and whether what’s right has been respected.26
That the provisions of the law of nature admit of disagreement is important for explaining why Locke could not accept a justification of state authority which is different from consent, and which it is sometimes thought should be acceptable to him. Why, it might be asked, could the justification of state authority not go like this: the reason why the state has the right to issue commands to self-owning people is that universal self-ownership implies an enforceable obligation against aggression and the state is therefore justified in issuing commands which enforce that obligation. Well, true enough, the state is so justified, just as any individual would be in the absence of the state. But the state also forbids others to enforce natural obligations. It claims not just legitimacy for its law-of-nature-enforcing violence, which is fair enough, because everyone has that, but a monopoly on that legitimacy, and that it cannot have save through consent. There is no obligation without consent to accept another’s reading of and enforcement of the law of nature.
8. In fact, Locke gives three bases for the formation of society, when he says, in paragraph 77, that
God having made man such a creature, that in his own judgment it was not good for him to be alone, put him under strong Obligations of Necessity, Convenience and Inclination to drive him into Society.27
Locke does not explicate the intriguing trichotomy that he there presents, but I conjecture that the first “obligation” (necessity) is a matter of avoiding the danger of death consequent on the state of war, the second (convenience) a matter of securing the benefits of cooperation that are difficult even in a state of nature that has not broken down into outright war, and the third (inclination) a matter of enjoying the fellowship of others as such. Hobbes is often presented as, by contrast, seeing the whole raison d’être of the state as a matter of necessity in the stated sense, but, as I indicated in Section 12 of Chapter 2, in polemic against Strauss, that is clearly a misreading. For if you look at the famous paragraph in Leviathan on the infirmities of the state of nature,28 you will see that convenience, as just glossed, certainly plays a role, and, so I argued in Section 12, so too does inclination. (“No society” suggests reasons of inclination.)
9. By that last remark, I mean that Locke is, in one sense, closer to traditional contract theory than Hobbes is. In traditional contract theory there are two contracts, a contract of society and a contract of government, or, as the medievals put it, a pactum unionis and a pactum subjectionis.29 In the first previously independent people join up by exchanging promises with one another. In the second the thus united society submits itself to a ruler.30 Thus Locke distinguishes at paragraph 211, as Hobbes could not, between the dissolution of society and the dissolution of government: one way of getting the second without the first is when a united people rise and overturn a government that has violated the law of nature.31 You might ask whether paragraph 89 is consistent with 211 in this respect:
Where-ever therefore any number of Men are so united into one Society, as to quit every one his Executive Power of the Law of Nature, and to resign it to the publick, there and there only is a Political, or Civil Society. And this is done, where-ever any number of Men, in the state of Nature, enter into Society to make one People, one Body Politick, under one Supreme Government; or else when any one joyns himself to, and incorporates with any Government already made: for hereby he authorizes the Society, or which is all one, the Legislative thereof, to make Laws for him, as the publick good of the Society shall require; to the Execution whereof, his own assistance (as to his own Decrees) is due. And this puts Men out of a State of Nature into that of a Commonwealth, by setting up a Judge on Earth, with Authority to determine all the Controversies, and redress the Injuries, that may happen to any Member of the Commonwealth; which Judge is the Legislative, or Magistrates appointed by it. And where-ever there are any number of Men, however associated, that have no such decisive power to appeal to, there they are still in the state of Nature.32
I say that Hobbes cannot have two contracts, and I elaborated that in Section 19 of the previous chapter. He fuses the two, or, rather, there is strictly in Hobbes a pactum unionis fused with universal submission to a prince who grants nothing in return so that what occurs is not a proper pactum subjectionis. So really you have neither in Hobbes.
Still, Locke’s story is not without qualification the traditional two-stage one. For he too does not have a contract of government proper, for the relation between people and government lacks the reciprocity requisite for contract. When a community of peasants contract with a prince, they promise support and he promises protection: there are rights on both sides. Locke’s government has instead what he calls a fiduciary power: it is entrusted by the people with certain functions and they are entitled to remove it when they believe it has violated the trust reposed in it. It has no independent rights of its own: hence the robust right of resistance in Locke. We have here no more than in Hobbes a true pactum subjectionis, but whereas in Hobbes that is because only the ruler has rights, in Locke it is because in an ultimate sense only the people have rights.33
10. The functions of government derive from the three defects in the state of nature with respect to perception and enforcement of the law of nature, which I mentioned in Section 8 above. There is lack of a “settled, known law” (paragraph 124),34 to trump varying interpretations, lack, too, of a “known and indifferent [that is, unbiased] judge” (paragraph 125),35 and, finally, of “power to back and support the sentence” (paragraph 126).36
The provisions of the law of nature being unclear, the function of the legislature is to define them. The application of the law of nature to individual cases is hard to determine without bias where your own interests are at stake, whether as defendant or as plaintiff, so the function of the judiciary is to eliminate such bias.37 Finally, individuals with legitimate grievances may lack the power to enforce redress, whence the function of the executive.
Note that this account of the functions of government does not justify a separation of powers, in the sense of a division of sovereignty, of the American kind. Such a justification is often carelessly attributed to Locke, but paragraphs 131,38 136,39 and 15040 make clear that the legislature, as the immediate expression of the popular will, is the supreme power.
11. I turn to the theme of self-ownership and consent.
Locke thinks that it would contradict the natural freedom of persons for government to assert authority over them other than by their consent. He writes, at paragraph 95: “Men being … by nature all free, equal and independent, no one can be put out of his Estate, and subjected to the Political Power of another, without his own Consent.”41 Note, by the way, that the features of freedom, equality, and independence are identical here. For the equality consists in no one being in a relationship of authority over anyone else, no one “being subjected to the Will or Authority of any other Man” (paragraph 54),42 and that is exactly the same thing as freedom and independence, as they are to be understood here. Hence Lockean natural equality is identical with universal self-ownership.
Paragraph 95 continues as follows:
The only way whereby any one devests himself of his Natural Liberty, and puts on the bonds of Civil Society is by agreeing with other Men to joyn and unite into a Community, for their comfortable, safe, and peaceable living one amongst another, in a secure Enjoyment of their Properties, and a greater Security against any that are not of it. 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. When any number of Men have so consented to make one Community or Government, they are thereby presently incorporated, and make one Body Politick, wherein the Majority have a Right to act and conclude the rest.43
One reason why the majority have that right is that if unanimity were required, there would, in effect, have been no cession of right at all: see paragraph 97.44 But the argument doesn’t show why some qualified majority, like two-thirds or even all minus one, would not suffice for a social union to be created. (The other reason, in paragraph 96,45 is also not conclusive.)
12. The paragraph I quoted in Section 11, to wit, 95, says that entering the social compact of which it speaks is “the only way by which anyone devests himself of his natural liberty.” But Locke also thinks that there is another way of losing some, indeed, a great deal, of your natural liberty and falling subject to government. And that is by a consent which is not express, but tacit, and in which an individual adheres to an existing society and government, without, however, fully suspending his natural liberty as express consenters do. That is, and, as we shall see, this is rather curious (see Section 13 below), when the consent is tacit, then what you consent to, not just how you consent, is different.46
There are two distinct bases on which Locke imputes tacit consent, and one seems far more problematic than the other. The first, explained most clearly at paragraphs 7347 and 120–2148 has to do with the inheritance of property, and the second, about which I’ll say more in Section 13, rests on the much more mere and more questionable basis of enjoyment of security, e.g., on the public highway (paragraphs 119,49 and 122).50 Concerning the first: if you accept, as you need not do, an inheritance, then you thereby accept the obligations attaching to it. But the property you inherit was initially, by the social contract, placed under the safety of government protection in exchange for the obedience to it of its owner. Therefore you, its inheritor, undertake that obedience when you accept the property. Therefore, too, says Locke, the authority of the state over you lasts only so long as you retain the property. If you choose to renounce it, give it away, or sell it, and go abroad, then the state has no authority to prevent that, since it has no authority, just by virtue of your accepting an inheritance, over your person as such.51 This is by contrast with what Locke curiously says at paragraph 121, that the state does have authority over the person of, and can therefore forbid the emigration of, anyone who has expressly consented to its authority:
121. But since the Government has a direct Jurisdiction only over the Land, and reaches the Possessor of it, (before he has actually incorporated himself in the Society) only as he dwells upon, and enjoys that: The Obligation any one is under, by Virtue of such Enjoyment, to submit to the government, begins and ends with the Enjoyment; so that whenever the Owner, who has given nothing but such a tacit Consent to the Government, will, by Donation, Sale, or otherwise, quit the said Possession, he is at liberty to go and incorporate himself into any other Commonwealth; or to agree with others to begin a new one, in vacuis locis, in any part of the World, they can find free and unpossessed: Whereas he, that has once, by actual Agreement, and any express Declaration, given his Consent to be of any Commonweal, is perpetually and indispensably obliged to be, and remain unalterably a Subject to it, and can never be again in the liberty of the state of Nature; unless, by any Calamity, the Government, he was under, comes to be dissolved; or else by some publick Act cuts him off from being any longer a Member of it.
122. But submitting to the Laws of any Country, living quietly, and enjoying Privileges and Protection under them, makes not a Man a Member of that Society: This is only a local Protection and Homage due to, and from all those, who, not being in a state of War, come within the Territories belonging to any Government, to all parts whereof the force of its Laws extends. But this no more makes a Man a Member of that Society, a perpetual Subject of that Commonwealth, than it would make a Man a Subject to another, in whose Family he found it convenient to abide for some time; though, whilst he continued in it, he were obliged to comply with the Laws, and submit to the government he found there. … Nothing can make any Man so, but his actually entering into it by positive Engagement, and express Promise and Compact. This is that, which I think, concerning the beginning of Political Societies, and that Consent which makes any one a Member of any Commonwealth.52
So consent is either express, originative of legitimate government, and alienative of rights of exit, or tacit, not originative but adhesive, and not alienative of rights of exit.53
13. I now address some puzzles and problems about the distinction between express and tacit consent.
(i) Cases of what Locke calls tacit consent are, as we’ve seen, less binding, or, rather, they bind to less than do cases of express consent. But tacit consent should not be less binding just because it is tacit rather than express. If I say, unless you shake your head, I’ll take it that you agree, and your head stays still, then you’ve tacitly agreed, but you’ve agreed just as consequentially and bindingly as if you’ve said the words “I agree.”
The limitation of what you consent to in Locke’s tacit consent cases really comes from the basis on which consent is attributed, not the different manner of consenting, as “express” versus “tacit” would imply. The basis in the case of tacit consent excludes the full membership that comes with express consent to full membership. That basis is either inheritance of private property or safe enjoyment of public property, as when you walk unmolested on the highway. The manner of the consent may be conspicuous but it is surely irrelevant to what sort of obligation is generated. If you actually say, when you inherit the property, “Thank you, Mr. State, I accept your protection of my property and pledge allegiance to you for so long as I retain it,” you would not be more bound than you are by just accepting the property and therefore tacitly consenting. Contrariwise, if you simply stay silent and tacitly consent when asked whether you submit yourself to the king, you should be as fully bound to that as though you had physically signed on to it.
(ii) Why should the consent that constitutes the original contract, or an express later adhesion, bind to so much? It clearly cannot be, so we now see, because it is express. And since the lesser thing that is consented to in cases of tacit consent would appear to suffice for social order, that is, it suffices for social order that people obey the state as long as they are within its jurisdiction, then why should they be bound, in their original compact, or by later express adhesion, not to leave it? You might say that only so is a true state, with citizen members, constituted, but that seems, first, false, and secondly, even if true, then the question would be why people have reason to form a true state instead of a looser association.
(iii) As we have seen, tacit consent is attributed on the basis not only of enjoyment of private property but also of public. As Locke puts it in paragraph 119:
And to this I say, that every Man, that hath any Possession, or Enjoyment, of any part of the Dominions of any Government, doth thereby give his tacit Consent, and is as far forth obliged to Obedience to the Laws of that Government, during such Enjoyment, as any one under it; whether this his Possession be of Land, to him and his Heirs for ever, or a Lodging only for a Week; or whether it be barely travelling freely on the Highway; and in Effect, it reaches as far as the very being of any one within the Territories of that Government.54
Now, if you travel freely on the highway, you do not thereby situate yourself on something someone bound themselves and, through inheritance, you, to use in a particular way. It is this public highway bit, not the inheritance bit, that is truly bizarre. For why can the traveler not say, “Look, I don’t want your support, MR. STATE, I hereby renounce it, and if a highwayman attacks me, then I do not expect you to come to my aid”? One could not similarly say, “Look MR. STATE, I am withdrawing this property I’ve inherited from your jurisdiction.” For it was placed under state obligation and I have no right to its rights without its obligations.55
This highway problem is acute, given Locke’s assurance in paragraph 95 (quoted in Section 11 above) that, when any number of men form a state, “it injures not the freedom of the rest: they are left as they were in the liberty of the state of nature.”56 For they do not retain that liberty if they willy-nilly tacitly consent to authority by walking on public land.57 But why can’t the state appropriate the land which becomes the highway as long as it leaves enough and as good for others? Public property, we might say, is the state’s private property. (But it might not then be leaving enough and as good for others to travel upon.)
(iv) In an excellent article on Locke on tacit consent, John Bennett persuasively argues that suitable signs of tacit consent must satisfy one or other of two conditions, each of which is sufficient: “If I wish to make some action a sign of consent I can do so only if either the action is not of interest to anyone for its own sake or I have a right to prohibit people from making the sign.”58 Thus, I could say to you that, unless you raise your hand, I’ll take you to be consenting to pay me £10, but I couldn’t say that, unless you stay here until 1:15 p.m., I’ll take you to be consenting to pay me £10, since whether you stay here till 1:15 p.m., unlike, I’m supposing, whether you raise your hand, is, being onerous, something of interest to you for its own sake, and not something which I have a right to forbid you to do, and to your doing of which I can therefore attach a condition.
Since the state has the right to prohibit inheritance of land without undertaking the obligations associated with its ownership, it can treat such inheritance as tacit consent to those obligations: the person has no right to renounce those obligations. But it is not similarly clear how obligations attach as a result of walking on public land. I have an important interest in doing that, and the state can’t prohibit me from doing that unless it has the right to govern me, but that’s precisely what needs to be established and it therefore cannot be presupposed.59 60
14. A word now about an interesting difference with respect to consent and the state between Locke and his neo-Lockean counterpart Nozick. Just as Nozick makes formation of private property easier than Locke does, by surreptitiously weakening his proviso,61 so he makes formation of state authority easier than Locke does by contending that non-consensually based obligation is consistent with self-ownership, despite the fact that Nozickian self-ownership is, if anything, more robust than Locke’s, since there is no question of there being an enforceable duty of charity, or a prohibition on suicide, in Nozick. For Nozick claims, vastly here to summarize a complex argument, that when people transfer their self-ownership-based rights of self-defense to a dominant protection association, and thereby form an ultraminimal state, they have the right to force independents within its ambit, because of the possible threat that they represent.
But Nozick’s argument probably fails.62 And, if it does fail, then believers in self-ownership must content themselves with the consent doctrine.
1 See Nozick, Anarchy, State, and Utopia, p. 172, for Nozick’s protest about the name.
2 [At this point the text contains the note: “(I put it that way by design: see next para, re property in common).”—Ed.]
3 Locke, Two Treatises of Government, 2.27, pp. 287–88.
4 Ibid., 2.44, p. 298.
5 Ibid., 2.123, p. 350.
6 Ibid., 2.32, p. 291.
7 Ibid., 2.190, pp. 393–94.
8 Hart, “Prolegomenon to the Principles of Punishment.”
9 Locke, Two Treatises of Government, 2.123, p. 350.
10 Tully, Discourse on Property.
11 Locke, Two Treatises of Government, 1.41–43, pp. 169–71.
12 Cohen, “Marx and Locke on Land and Labour.”
13 Locke, Two Treatises of Government, 1.42, p. 170.
14 Hobbes, Leviathan, p. 190.
15 Note that so construing Locke’s purpose is consistent with what David Lloyd Thomas says in Locke on Government, pp. 91–93.
16 I discuss the survival argument at pp. 60–67 of “Once More into the Breach of Self-Ownership.”
17 For good criticisms of this argument, see Lloyd Thomas, Locke on Government, pp. 108–9.
18 That is: because of that, tout court. One might say that one owns it because one’s labor is in it and, for example, one therefore deserves to own it. To such elaborated forms of the labor-confers-property motif the proviso is adjoinable.
19 Lloyd Thomas, Locke on Government, p. 109.
20 Locke, Two Treatises of Government, 2.33, p. 291.
21 Cohen, Self-Ownership, Freedom, and Equality, pp. 176–77. (I’ve assessed the value argument at length in chap. 7 of this book.)
22 See also Lloyd Thomas, Locke on Government, p. 106, for a claim that the value argument only justifies property in general, and a speculation that Locke also provided the labor mixture argument in order to justify a tie between particular pieces of property and particular persons.
23 For one or both of two reasons, that is, because of scarcity and lack of assurance, and/or because of passions like pride: see Chapter 2 above.
24 Locke, Two Treatises of Government, 2.123, p. 350.
25 Ibid., 2.124–26, pp. 350–51.
26 [At this point the text contains the remark: “Illustrate: different interpretations of trespass on legitimate private property.”—Ed.]
27 Locke, Two Treatises of Government, 2.77, p. 318.
28 Hobbes, Leviathan, p. 186.
29 See Chapter 2, Section 19 above.
30 See Gough, Social Contract, pp. 2–4, on the early history of these notions.
31 Locke, Two Treatises of Government, 2.211, pp. 406–7.
32 Ibid., 2.89, p. 325.
33 Yet don’t Locke’s rulers promise to execute the trust and subjects to obey them as long as they do? For more on Locke on trust, see Hampton, Hobbes and the Social Contract Tradition, p. 123.
34 Locke, Two Treatises of Government, 2.124, p. 351.
35 Ibid., 2.125, p. 351.
36 Ibid., 2.126, p. 351.
37 Compare Hobbes on this: see Kavka, Hobbesian Moral and Political Theory, pp. 245–46.
38 Locke, Two Treatises of Government, 2.131, p. 353.
39 Ibid., 2.136, pp. 358–59.
40 Ibid., 2.150, pp. 367–68.
41 Ibid., 2.95, p. 330.
42 Ibid., 2.54, p. 304.
43 Ibid., 2.95, pp. 330–31. See also 2.54 (p. 304) and 2.123 (p. 350) for similar matter.
44 Ibid., 2.97, p. 332.
45 Ibid., 2.96, pp. 331–32.
46 But this overlooks express-consent adhesion to an existing government.
47 Ibid., 2.73, pp. 347–48.
48 Ibid., 2.120–21, pp. 348–49.
49 Ibid., 2.119, pp. 347–48.
50 Ibid., 2.112, p. 349.
51 Yet paragraph 2.117 (p. 346) seems very much to contradict 2.121 (p. 349) in this respect.
52 Ibid., 2.121–22, p. 349.
53 Gauthier’s quite familiar account of the basis for attributing tacit consent makes that basis weaker than what’s available in the inheritance case: see p. 12 of his “David Hume, Contractarian.”
54 Locke, Two Treatises of Government, 2.119, p. 348.
55 What if what is now the public highway had been privately owned? Would the argument work in that case?
56 Locke, Two Treatises of Government, 2.95, p. 331.
57 This point is due to M.F.L. Cohen.
58 Bennett, “A Note on Locke’s Theory of Tacit Consent,” p. 229.
59 Does this fall to the point made at the end of (iii): public property is the state’s private property?
60 Having offered his interesting (partial?) rescue of Locke, Bennett proposes a subtle difficulty in it at pp. 233–34. My hunch is that it can be overcome.
61 [At this point the text contains the remark “Say how and refer to Ch. III of Self-Ownership.” Chapter 3 of Cohen’s Self-Ownership, Freedom, and Equality contains an extended discussion of this point.—Ed.]
62 See Altham, “Reflections on the State of Nature,” and Wolff, “Nozick’s Derivation of the Minimal State.”