l o c k e

property in some detail, but note here that it is essential to Locke’s view that, just as with parental power, the right of property cannot be the basis of political power. To show this, he does two things (among others) in Chapter 5:

(a)He maintains first, as opposed to Filmer, that even though originally the earth and its fruits were given in common, individuals and families could and did take (real) property in things without the consent of all humankind, beginning with the first ages of the world and long before political authority. (Real) property can exist prior to government. It was in part to render this property secure that people entered civil society. Contrary to the feudal tie between (real) property and political authority, Locke holds that property precedes government and is not the basis of it.

(b)Locke holds, second, that while the accumulation of real properties of different sizes, the introduction of money, the growth of population and the need for drawing boundary lines between tribes, and other changes, led to a stage of development in which organized political authority became necessary, real property does not of itself give rise to political authority, as in feudal societies. For political authority to come into existence, a social compact is required. Clearly, the terms of this compact are influenced by the existence and distribution of real property but that is another matter; property precedes government but is not the basis of it.

§3. Locke’s Criterion for a Legitimate Political Regime

1. Locke’s account of a legitimate political authority and of obligations to it has two parts.

(a)The first part is an account of legitimacy: it lays down when a political regime as a system of political and social institutions is legitimate.

(b)The second part lays down the conditions under which we are bound, as individuals, or citizens, to comply with an existing regime. It is an account of political duty and obligation.

These two parts should be carefully distinguished.

Let’s turn to the first part, the criterion for a legitimate regime, which we can formulate as follows: A political regime is legitimate if and only if it is such that it could have been contracted into during a rightly-conducted process of historical change, a process that began with the state of nature

[ 128 ]

Copyright © The President and Fellows of Harvard College

His Account of a Legitimate Regime

as a state of perfect freedom and equality—a state of equal right, all being kings. We will call this process “ideal history.” This formulation calls for considerable explanation and comment.

2. First, what is a rightly-conducted process of historical change (or ideal history)? It is a historical process that satisfies two rather different conditions:

(a)One condition is that all persons act rationally to advance their legitimate interests, that is, interests that are permissible within the bounds of the law of nature. These interests, in Locke’s phrase, are their interests in their lives, liberties, and estates.6

(b)The other condition is that everyone acts reasonably, that is, in accordance with their duties and obligations under the law of nature.

In short, everyone acts both rationally and rightly, or reasonably.

This means that in ideal history institutional changes (for example, the introduction of money, or the fixing of tribal boundaries) are agreed to:

First, only if the individuals involved have good reasons for believing that, in view of their current and expected future circumstances, these changes are to their rational advantage, that is, that they advance their legitimate interests; and

Second, only if no one subjects any one else to coercion or to threats of violence, or fraud, all contrary to the fundamental law of nature, and moreover, only if all honor their duties to one another under that law.

The first condition is one of rationality, both individual and collective; the second condition is one of right, or reasonable, conduct accepting the bounds imposed on our natural freedom by the fundamental law of nature.

Here we should note explicitly that for Locke, force and threats of violence cannot be used to extract consent. Promises given under these conditions do not bind (¶¶176, 186). Further, one cannot grant or cede a right or power that one does not have (¶135). Thus, by compact we cannot sell ourselves into slavery (¶23; see also ¶141).

To sum up: for Locke, all agreements in ideal history are free, uncoerced, and unanimous as well as reasonable and rational from everyone’s point of view.

6. Interests of this kind belong to Locke’s standard view of persons in his contract doctrine. We have seen that a contract doctrine must contain a standard view of some kind. This view is part of its normalization of the parties to the contract in order to formulate a rational basis for unanimous consent.

[ 129 ]

Copyright © The President and Fellows of Harvard College

l o c k e

3. Note above in §3.1 the use of the word “could” in stating the social contract criterion for a legitimate regime. It says that a political regime is legitimate if and only if it is a form of government that could be contracted into as part of a rightly-conducted process of historical change, or of what we have called “ideal history.” Here it is assumed that ideal history may include a series of agreements over a long period of time. Their effect is cumulative and reflected in the institutional structure of society at any given moment.

Thus, we don’t say, on Locke’s view, that a political regime is legitimate if it would have been contracted into in ideal history. That is a far stronger statement, one that Locke need not make. He proceeds by imposing certain constraints on what is reasonable and rational in ideal history. Presumably different kinds of regimes could be contracted into, each consistent with these constraints.

But it meets Locke’s aims to show that royal absolutism could not be thus contracted into: this form of regime is excluded. That Locke’s aim is to argue against royal absolutism is shown by the numerous occasions on which he takes up this question and by the vehemence of what he says. For him, to put ourselves under an absolute monarch is contrary to our (natural) duties and irrational; for to do that is to put ourselves in a situation that is worse than the state of nature (¶¶13, 91ff, 137), something rational beings will not do.7 On this, see the important statement in ¶131 where he says that when men give up the equality, liberty, and executive power they have in the state of nature in order to enter into society with its laws and restrictions, they do so “only with an intention in everyone the better to preserve himself his Liberty and Property; (For no rational Creature can be supposed to change his condition with an intention to be worse).” He goes on to say that whoever has power must govern by established standing laws, and not by extemporary decrees, “. . . all this to be directed to no other end, but the Peace, Safety, and public good of the People.” To understand the role of the rule of law for Locke, we must put it in this context.

On the other hand, a mixed constitution could be contracted into. For Locke, that the English Constitution is both mixed and legitimate is not in dispute. Thus, once his criterion is accepted, absolutism is illegitimate, and

7. Locke differs here from Hobbes, who views the state of nature as the worst condition of all.

[ 130 ]

Copyright © The President and Fellows of Harvard College

His Account of a Legitimate Regime

so a king with absolutist pretensions may be resisted within the context of a mixed constitution.

4.It is implicit in what we have said that Locke’s criterion for a legitimate regime is hypothetical. That is, we can tell whether a form of regime is legitimate by seeing whether it could have been contracted into in the course of ideal history. It need not actually have been contracted into; a regime may be legitimate even if it has arisen in some other fashion.

To illustrate: Locke recognizes that the Norman conquest did not establish the legitimacy, say by the right of conquest, of Norman rule (¶177). But various institutional changes since that time have transformed the original Norman regime into a mixed constitution (as Locke understands it); and so the existing regime now satisfies the social contract criterion. It is a form of regime that could be contracted into, and hence could be, and is, accepted as legitimate.

However, although Locke’s criterion is hypothetical, it is not non-histor- ical. That is, ideal history is a possible course of historical change, assuming that human beings can conduct themselves reasonably and rationally. This may be very unlikely, but it is not impossible. By contrast, I have supposed that in the political conception of justice that I have called “justice as fairness” the original position is non-historical; it is to be regarded as a device of representation that models our more general considered convictions.8

5.To conclude: Locke’s criterion of a legitimate political regime is a negative one: that is, it excludes certain forms of regime as illegitimate: those that could not be contracted into by a series of agreements in ideal history. This criterion doesn’t specify the best, or ideal, or even the better political regimes. To do this Locke would have to maintain that there is only one best regime, or a few equally good best regimes, one of which would be contracted into. To maintain this he would need a far more general doctrine. Moreover, it is far beyond what Locke requires for his political purposes. Very sensibly, he argues for what he needs and not more.

§4. The Political Obligation for Individuals

1. So far we have discussed Locke’s criterion of legitimacy—the form a legitimate government may take. It is important to distinguish between an

8. See Rawls, Justice as Fairness: A Restatement, §§6.3–6.5.

[ 131 ]

Copyright © The President and Fellows of Harvard College

l o c k e

account of legitimacy and an account of political duty and obligation of individual persons. I now turn to the second of these and ask: How do we— as individuals—become bound to a particular regime that may exist at any time, and to which we may be subject?

The contrast here with Filmer’s view is sharp.9 Filmer’s starting point was the Bible as an inspired work. It disclosed God’s will in all essential matters and contained the relevant truths about the nature of the world and human society. For Filmer, we are born under and must always be subject to some authority. This is the idea of natural subjection, which Locke mentions in ¶¶114, 116, and 117. The idea of nature as a state of equal right, all being equally sovereigns over themselves, and the idea that political authority must be seen to arise from consent are, for Filmer, completely false. For him, the Bible shows that human society originated in one man, Adam; and before Eve was created Adam owned the whole world, all the land and all the creatures in it. The world was his property, and he was subject only to God. Thus, it was the will of God that the world begin this way, with Adam alone, and not with two or more men, or with a multitude consisting of equal numbers of men and women.

Filmer thought, then, that all human beings were to be subordinate to the first man, Adam. By virtue of being the father, or patriarch, of his eventually very large family (he is supposed to have lived over 900 years), he was the ruler and all were subject to him. Upon his death, power over the family, or state, passed to his son by the rules of primogeniture. And since all persons have sprung from Adam, all are naturally and physiologically related to each other. Thus, God willed that human society is to be founded on natural and not on consensual bonds: its form is to be hierarchical and to rest on natural subordination.

2. In the important paragraphs ¶¶113–122, Locke argues against the idea of natural subjection. In regard to the political obligations of individuals, his view is that neither paternity nor place of birth or residence suffices to determine our political obligation. Fathers cannot bind their sons (¶116); and each person must, at the age of reason, give some form of consent. This consent we may think of as joining consent, a consent that, when it is what he calls “express consent,” incorporates us into an existing political soci-

9. Robert Filmer, Patriarcha and Other Writings; see also Lecture I, note 5 for further references.

[ 132 ]

Copyright © The President and Fellows of Harvard College

His Account of a Legitimate Regime

ety. Locke remarks that as persons come of age, they do not give their consent “in a multitude together” (¶117), but do so singly. Therefore, we take no notice of their consent, and we conclude wrongly that they are naturally subjects. All of this Locke is directing against Filmer.

Now the question is: how do individuals give “joining consent”? At this point Locke introduces a distinction between “express” and “tacit” consent (¶¶119–122). Locke’s text here is not very explicit; but some main points seem to be these:

(a)Express consent is given by “positive Engagement, and express Promise and Compact” (¶122), e.g. an oath of allegiance to the Crown,10 (which is mentioned in ¶¶62, 151); whereas tacit consent is not so given.

(b)Express consent is given with the intention of incorporating our person into the commonwealth, and with the intention of making ourselves a member of that society, a subject of that government; whereas tacit consent is not given with this intention (¶¶119, 122).

(c)Express consent has the consequence of making us a perpetual member of society (¶121f ), inalterably subject to it, and never again at liberty as in the state of nature (to which we are born), whereas tacit consent does not have this consequence (¶121f ): it binds us only to honor the laws of the commonwealth so long as we dwell upon and enjoy the land (etc.) of the commonwealth.

(d)Express consent is like originating consent in that it incorporates our person into society; tacit consent does not.

To sum up, Locke’s idea is that by express, joining consent (normally as a native-born Englishman) we become a full citizen of the commonwealth; whereas by tacit consent we undertake to comply with the laws of a regime so long as we reside in its territory (as resident aliens).

3. As we have seen, Locke’s doctrine has two parts: one is an account of legitimacy, the other is an account of political duty and obligation of persons. Both parts are aimed at Filmer’s account of the legitimacy of absolute monarchy as based on divine right and Adam’s paternal power, with its idea of natural subjection.

The question now arises as to the relation between these two parts of Locke’s view. From Locke’s standpoint, one main point is that we can only become bound by express consent to a legitimate and not to an unjust re-

10. See John Dunn, Political Thought of John Locke, pp. 136–141.

[ 133 ]

Copyright © The President and Fellows of Harvard College

l o c k e

gime. (Tacit consent is less important for Locke.) Thus, the legitimacy of a regime is a necessary condition of our having a political obligation to comply with its laws. In ¶20 Locke says that if the law is not justly administered, “War is made upon the Sufferers.” This means that we do not (indeed cannot) have a political duty or obligation to a regime that is clearly unjust and violent. I say clearly unjust and violent, or at least sufficiently so, since it is unreasonable to expect any human regime to be perfectly just, and due allowance must be made for the normal faults, moral and otherwise, of those who exercise political power.

That the legitimacy of the regime is a necessary condition of political obligation fits the aim of Locke’s doctrine: for keep in mind that Locke wants to justify resistance to the Crown under a mixed constitution. It accords with the idea of political authority as a fiduciary power; and with his view (stated in ¶225) that the people are loath to oppose an existing regime that exercises that power at all reasonably, and that does not threaten their essential rights and liberties. Locke also thinks that it is relatively easy for those who hold political authority to satisfy this necessary condition. Unjust rulers bring rebellions and revolutions on themselves (¶¶227–230).

Thus, so long as this condition is met, persons as they come of age will willingly give their free and express consent. Locke thinks it good for sovereigns to be fully aware that their reasonable conduct in exercising political authority is a necessary condition of their subjects being bound to accept their legitimacy: this awareness will serve as a constraint on their behavior. Nothing unleashes sovereigns so much as their false belief that their subjects owe them obedience, no matter what.

4. Observe, however, that the fact that we have no political obligation to an illegitimate regime does not imply that we are not bound to act in accordance with its laws, or to moderate our resistance to it, for other reasons. But these reasons will not derive from our political duty or obligation arising from our consent.

Rather, it may be that we should avoid resistance because it would not be effective; indeed, it might make the regime even more repressive, and bring undue harm to the innocent. The point is that there are various grounds in Locke’s view for complying with a regime and its laws, and many of these are not based on political duty or obligation. Among these, I think, is a duty not to oppose a legitimate and just existing regime, whether in our own or in another country. But all things considered, there may be a

[ 134 ]

Copyright © The President and Fellows of Harvard College