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vantages, external to the compact situation. This is because knowledge of these is not excluded. The parties who are to determine the basic principles of the social compact are not behind a “veil of ignorance,” as in justice as fairness.14 The result is that persons enter the compact situation not solely as free and equal, reasonable and rational, but also as in this or that situation with this or that amount of property. Their legitimate interests are shaped accordingly and may set them at odds. If we want to work out a political conception in which the terms of social cooperation and the form of regime are independent of such contingencies, we must find a way to revise the social contract view.

§6. A Just-So Story of the Origin of the Class State

1. I conclude with a brief sketch showing how a class state could arise in ideal history. We have seen that everyone is assumed to act both reasonably and rationally. No one violates their duties under the fundamental law of nature or fails to act rationally in advancing their legitimate interests. These interests are interests in their property in the broad sense, that is, their lives, liberties, and estates, however small their property in land (real property) may be.

Following Joshua Cohen, we say the social compact must satisfy three criteria:15

(a)Individual rationality: Each person must reasonably believe that he or she will be at least as well off in the society of the social compact as in the state of nature where each now is. The standard used to decide whether persons are better off is their legitimate interests, as defined above by reference to their property in the broad sense.

(b)Collective rationality: There must be no other alternative social compact (including the form of regime it establishes) such that everyone would prefer it to the agreement in question. Put another way, there is no other agreement that would make some of them better off without making any of the others worse off. (This is simply Pareto.)

(c)Coalition rationality: To cut through great complexities, we simply

14.John Rawls, Justice as Fairness: A Restatement. See §6: “The Idea of the Original Po-

sition.”

15.See Joshua Cohen, “Structure, Choice and Legitimacy: Locke’s Theory of the State,” pp. 311–323. Together these conditions define the core of a cooperative game.

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assume there are only two coalitions: one includes all those with enough property to meet the voting qualification (40 shilling freehold rule, say). Call these people those with (sufficient) property. The other coalition includes those who fail to meet that qualification, although they may have some property less than 40 shillings. Call these people those without (sufficient) property. Coalition rationality now means that both coalitions, and their individual members, think they will do better under the proposed social compact than under any other agreement mutually acceptable to both coalitions. The members of both coalitions must think the agreement better than their coalition’s going off on its own, or splitting.

Again to cut through complexities, we assume there are only four alternatives:

(i)class state (with 40 shilling freehold voting qualification).

(ii)democratic state with universal suffrage.

(iii)Split into two states:

(a)a state of those with (sufficient) property.

(b)a state of those without (sufficient) property.

(iv)state of nature, or the status quo.

Once more to cut through complexities (we keep having to do this!), we assume that there are no preferences for the form of the state as such: regimes are judged by people solely by reference to the expected fulfillment of their legitimate interests (those compatible with their duties under the fundamental law of nature and specified in terms of their property in the broad sense).

2. Now, a bit of elaboration: Both the class state and the democratic state are constitutional states. That is, they both satisfy the rule of law, as Locke defines it in ¶¶124–126, 136f, 142. So even those who do not meet the property qualification can expect greater protection for their lives, liberties, and estates, however small, than in a state of nature. By individual rationality, then, the class state is to be preferred to the state of nature.

There is, however, an opposition of interests between the class state and the democratic state. Those with property prefer the class state, those without property prefer the democratic state. The propertied fear that those without property may use the democratic franchise to redistribute their real wealth.

(a) Let’s assume that those with property will refuse to agree to the democratic state and prefer to split, or go off on their own, instead. This they can do under the law of nature, provided that the principle of charity

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is not violated. I understand Locke’s view as permitting withholding cooperation in these circumstances (¶95).

(b)Those without property have to decide, then, whether to go it alone in a democratic state, or to join the class state with those who have property. If they decide that joining the class state is indeed rational for them, the class state is coalitional rational. Both coalitions prefer it to any other mutually acceptable alternative.

Now suppose, as Locke would require, that the class state meets the following principles:

(a)Everyone is a citizen with the protections of the rule of law (¶120), including, of course, passive citizens (those without sufficient property to vote).

(b)Citizenship carries with it a reasonable opportunity to acquire, with diligence and industry, sufficient property to meet the voting qualification. This means that opportunities for gainful employment must be guaranteed.

(c)Moreover, these opportunities are made secure by the principle of justice, which among other precepts, guarantees for all the product of their honest labor.

(d)Finally, by the principle of charity, the class state recognizes a claim on the surplus of society so as to keep everyone from extreme want.

These principles are among the terms those with property offer those without property. We assume that these terms, once accepted, will be honored: that is, strictly complied with and that everyone knows this. Those without property do not have to calculate how likely it is that the propertied are going to renege, and so on.

3. Given all these stipulations, we can see how the class state might arise as follows:

Conditions of Acceptance: Let X be the proposed social compact. X is agreed to when it meets the following three conditions:

(a)Individual Rationality: all individuals prefer X to the state of nature.

(b)Collective Rationality: there is no alternative Y such that all individuals prefer Y to X.

(c)Coalition Rationality: with two coalitions A and B, there is no alternative Y such that either A or B prefers Y to X, or such that either A or B can enforce Y by going off on its own, or by splitting.

Locke’s conjectured social compact:

(a)the set of alternatives is: Class State, Democratic State, Split, State of Nature.

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(b)Preferences of Propertied: Class, Split, Democratic, State of Nature.

(c)Preferences of Propertyless: Democratic, Class, Split, State of Nature. Both coalitions prefer a class state to a split, and since the propertied can enforce a split, the chosen social compact is the Class State; the propertyless cannot prevent a split, so they join the Class State.

4. If this story is sound and compatible with ideal history, Locke’s mixed constitution with its forty shilling franchise can arise. Other stories, however, are also possible. It is an important aspect of Locke’s view that many different forms of regime could come about. His view does not require a class state; it simply permits it. Cohen describes other conditions, like those of the nineteenth century, under which it is plausible to hold that democracy would be agreed to. Locke himself describes in ¶¶107–111 how monarchy came about in the early “golden age” when properties were small and roughly equal and before vain ambition corrupted men’s minds.

What is important about this is that what is basic to Locke’s view is the kind of justification it proposes for political institutions. When people agree to the social compact he views them as individuals who know their particular social and economic interests as well as their position and status in society. This means that the justifications citizens give to one another in arriving at the social compact take these interests into account.

One aim of our story about the class state was to defend Locke against MacPherson’s misinterpretation. But in doing so we have uncovered a disturbing feature of his view. Not only does it make citizens’ rights and liberties depend on historical contingencies in ways we would like to avoid, but it also raises the question of whether the constitutional settlement should not be reconsidered after each important shift in the distribution of political and economic power. It would seem that the basic freedoms and opportunities of a constitutional regime should be fixed far more solidly than that, and not be subject to such changes.

Hence, as I have said, we must find some way to revise Locke’s contract doctrine. Both Rousseau and Kant make revisions, and justice as fairness follows their lead. In conclusion, I should stress that I am not criticizing Locke the man, who as I said was a great figure, and whose social compact view was well framed for his purposes at the time of the Exclusion Crisis. We are probing his view and finding it is not well framed for our purposes. That is not surprising, since as Collingwood would say, our problems are not his problems and they call for different solutions.

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