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capacity for sympathy—which is replaced in the Enquiry by the Principle of Humanity. Hume’s account of the “judicious spectator” is one of the most important ideas in moral philosophy (discussed in Lecture II below).

(iv) These details we cannot cover here: the point to stress is that Hume’s background and philosophical point of view are altogether different from Locke’s. He approaches the subject of morality from the point of view of an observing naturalist. Even when Hume and Locke are discussing the same topic, they do so from a different point of view. They are not in general trying to answer the same questions.

§2. Hume’s Critique of Locke’s Social Contract

Now I will turn to Hume’s critique of Locke’s social contract view. It appears in at least one prominent place—in Hume’s essay “Of the Original Contract,” which appeared in 1748 in the third edition of his Moral and Political Essays. The essay is divided into four parts. I often find it helpful to count paragraphs: ¶¶1–19 is the first part; ¶¶20–31 is the second; and ¶¶32– 45, the third part, presents Hume’s philosophical argument contrary to Locke’s social contract. And then ¶¶46–49 is the conclusion.

The way Hume organized the essay, it isn’t clear where the breaks are, and I think it might be helpful to have some preliminary idea of what is in it. In part 1, Hume begins by granting that both the Tory view of the divine right of kings, and the Whig view that government rests on the consent of the people, have some truth in them—but not, of course, in the way in which they each intend. The truth that Hume concedes would hardly be the sort of truth that the proponents of each of those views would want. For example, he’s most brief with the Tory view, and somewhat deliberately insulting, I would assume. He says that the Crown may rule by divine right, but no more so than does a thief who takes my purse, because all powers derive from the supreme being (¶3). This is obviously not intended seriously, but I suppose is intended to wake up the reader in the course of the argument.

Hume then mocks the Whig view, which, he says, supposes “that there

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is a kind of original contract by which the subjects have tacitly reserved the power of resisting their sovereign whenever they find themselves aggrieved by that authority with which they have . . . voluntarily entrusted him” (¶1). I assume Locke and his social contract view to be the target, or among the targets of Hume’s argument here, although Locke is not actually mentioned when Hume says (¶4) that if by the original contract is meant the first origin of government, say in the woods and deserts when people first associated together, then it cannot be denied that all government at first is founded on contract. For at that time people were nearly equal in bodily force and mental powers, and culture and education having not yet given rise to inequality. In those circumstances, then, consent was necessary for political authority as well as for people’s sense of the advantages that peace and social order would bring for them. Yet, he goes on to say that “this consent was very long imperfect, and could not be the basis of a regular administration” (¶5). That is to say, the idea of social compact, or the original compact, as Locke presents it, was beyond the comprehension of people at that time. And since that is the time when government first originated, he therefore thinks that Locke’s doctrine—which he says affirms “that all men are still born equal and owe allegiance to no prince or government unless bound by the obligation and sanction of a promise” (¶6)—is hardly strictly applicable, or strictly accurate, even with regard to this first origin of government. Although it does have, as he says, some truth in it.

Hume then proceeds to enumerate a number of objections which he thinks show that consent can hardly count as a foundation of government and a basis of obligation at the present time. For example, he says that social contract doctrine is not recognized or even known by most parts of the world. “We find everywhere princes who claim their subjects as their property [that being an actual practice at the time] and assert their independent right of sovereignty from conquest or succession” (¶7). He adds that magistrates would imprison propounders of the theories of consent as dangerous and seditious people, “if our friends did not before shut you up as delirious for advancing such absurdities” (¶7). (This seems a somewhat extreme remark, but this is his view of the matter.) If such doctrines are not even accepted in most places, and if they’re not now understood, how can consent be binding? His point is that in order for consent to have the kind of effects that Locke says it would, consent would have to be publicly recognized and understood to be the basis of political obligation. Hume is not offhand de-

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nying that possibility. He is just saying that those are not the present circumstances. So, consent cannot be the basis of government or authority. In any case, he goes on to say, the original consent being ancient, that is, “too old to fall under the knowledge of the present generation” (¶8), it cannot be binding now. For parents cannot bind their descendants down to remote generations (¶8).

Another objection Hume makes is that almost all governments that presently exist were founded on usurpation or conquest (he mentions William the Conqueror in 1066), and in any case they have arisen through force and violence “without any pretense of fair consent or voluntary subjection of the people” (¶9). In some cases they have arisen by marriage, by dynastic considerations and so forth, which treat the people of a country as part of a dowry or legacy (¶11). Still another objection is that elections do not carry any great weight for they are often controlled by a combination of a few great figures, and the social contract idea of consent, a particular originating consent, has no correspondence to the facts (¶12). Nor would the consent given in the Revolution of 1688 and 1689 be any different, on Hume’s view. He says that a majority of about seven hundred people (members of Parliament), and not the nation of some ten million as a whole, determined where the political authority would lie at that time (¶15). So, in conclusion, consent has rarely taken place, and when it does take place, on Hume’s view it is so irregular and limited to so few people that it can hardly have any such authority as Locke ascribes to it. Again, he doesn’t mention Locke by name.

Beginning in part 2, ¶¶20–31, Hume says there must be some foundation of government other than consent. I now want to give a rough account of this argument. He does not deny that consent is “one just foundation of government,” and when it does obtain he says that it is “surely the best and the most sacred of any” (¶20). But he argues that because it so seldom actually is the basis, it can’t be the only one. He says that for consent to bind and to be a foundation of government certain conditions have to hold, and he gives a series of reasons why they do not. For one thing the social contract view presumes a state of knowledge of and regard for justice that people do not actually have. On Hume’s view, it asks too much of human nature. It asks for a kind of state of perfection that is much superior to our past or present state.

Again, the social contract view presupposes that people believe their

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obligation to government depends on their consent. But, common sense nowhere supposes this. People think, actually, that their allegiance to a certain prince—who “from long possession has acquired a title independent of their choice or inclination” (¶22)—is decided by their place of birth. And it is absurd to hold that past consent is a significant basis of political obligation when the people who are alleged to consent do not themselves believe that allegiance depends on their agreements (¶23). Then in ¶24, an often quoted paragraph, and a very strong one, Hume says that to suppose that a poor peasant has a free choice to leave the country when he knows no foreign language and has no funds to depart and to make a fresh start abroad, is like supposing that someone, by remaining in a vessel at sea, freely consents to the domination of the captain, though he was carried aboard while asleep, and to leave, must jump overboard and drown. So, what Hume is saying is that to suppose that peasants or other working people—any but perhaps the few hundred who determine the form of regime—consent in any way that’s binding, would be like saying that the person taken aboard the ship while asleep had given his consent to be aboard. The most plausible case of passive or tacit consent, Hume thinks, is that which binds a foreigner who settles in a country the government and the laws of which he is acquainted with ahead of time. In that case, in Hume’s view, although the allegiance is more voluntary than that of a native subject, the government actually expects less of it and depends less on it (¶27).

Hume says in ¶28 that if one generation died all at once, and another took its place as a group all at once, suddenly arriving at the age of reason with sense enough to choose their government, they then might by general consent establish their form of civil polity without regard to precedent. But the conditions of human life are not like that, and from its circumstances, with “one man every hour going out of the world, another coming into it,” we can see that a new consent for each generation is impossible in any effective way. In order to achieve stability (a necessity in government) “the new brood should conform themselves to the established constitution” and make no “violent innovations” (¶28).

Finally, Hume remarks that to say that “all lawful government arises from the consent of the people” is to “do them [governments] far more honor than they actually deserve or even expect and desire from us” (¶30).

Starting with ¶31, Hume introduces what I call the philosophical cri-

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tique of Locke’s view. He begins by distinguishing between natural duties, for example duties like love of children, gratitude toward our benefactors, etc., and duties that are founded on a sense of obligation—that is, duties that presuppose a recognition of the general interests and necessities of society and the impossibility of orderly social life if these duties are neglected. He calls these latter duties “artificial duties.” The term “artificial” has of course changed since Hume’s time. Then it was a term which meant artifice of reason, conveying a notion that such duties are in an important way rational. When Charles the Second first went into Saint Paul’s Cathedral after it was rebuilt from Christopher Wren’s design after the fire, Wren stood with him under the dome waiting with great apprehension to see what Charles would say. He was greatly relieved when Charles looked up and he said that it was “awful and artificial”—not very high praise today, but then it meant both awe inspiring and rational.

Among the artificial duties are (a) those of justice, a regard for the property of others; (b) fidelity, keeping one’s promises; and (c) the civic duty of allegiance to government. Hume’s philosophical argument against Locke here is that these duties, justice, fidelity, and allegiance, are explained and justified by the notion of utility, that is to say, by reference to “the general necessities and interests of society.” (Particularly relevant here are ¶¶35–38 and ¶45.) If the duties of justice and fidelity were not generally recognized and honored by members of society, then on Hume’s view orderly social life would be impossible. “Society cannot possibly be maintained without the authority of magistrates” (¶35). This is the basic philosophical explanation, he thinks, of these duties. Thus it is quite pointless, Hume thinks, to try to justify, or to explain our allegiance to government, by an appeal to the duty of fidelity, or keeping promises, that is, by reference to some presumed or actual social compact based on the consent of individuals. For if we ask why we should honor any compact or agreement that we have made, or to treat individual consent as binding, Hume claims that we have no alternative but to resort to the principle of utility as an explanation. Therefore, when asked for the grounds of our allegiance to government, instead of taking the extra step of appealing to the principle of fidelity to a presumed contract why not appeal directly to the principle of utility? Nothing is gained by way of a philosophical justification by founding the duty of allegiance on the duty of fidelity. In this sense, Hume re-

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gards Locke’s social compact view, we might say, as an unnecessary shuffle, and moreover, one that tends to conceal that the justification for all duties must appeal to the general necessities of society, or what Hume in other contexts calls “utility.”

Hume’s conclusion, therefore, is that as a philosophical doctrine, the social contract is not only implausible, and contradictory to common sense in that it goes against all kinds of things that people actually believe, and it is against widespread political opinion, as he argued in the earlier parts of the essay. But it is also superficial in that it fails to bring out what has to be the real ground of political obligation, namely, the general necessities and interests of society.

Hume comments at the end of the essay, in ¶48, that in morals it is impossible to find anything that is new, and that opinions that are new are almost always false. He believes that in questions of morals, it is the general opinion and practice of mankind that is decisive when it exists. He says, “New discoveries are not to be expected in these matters.” In other words, he regards Locke’s view, which he finds to be historically inaccurate, as a newfound doctrine, and one that therefore goes against the general practice and opinion of humankind.

How are we to assess Hume’s criticism of Locke? His critique is forceful and convincing, or at any rate highly plausible in many respects, but weaker in others. I think it may be said that Hume’s essay (and Bentham’s later essay, although Bentham says essentially the same thing that Hume does) was historically very influential in weakening the social contract view. There tend to be, at least in England, no successors to a doctrine like Locke’s. On that evidence, Hume’s essay was historically very effective.

Hume, however, seems to read Locke as saying that our allegiance to government as it exists now depends upon original consent, or an original compact, some generations in the past, and that it is this consent that binds us now. But Locke does not actually say this. He does not believe that the consent of the ancestors can bind the descendants, and he says this explicitly in ¶116 of the Second Treatise: “Whatever engagements or promises any one has made for himself, he is under obligation of them, but cannot by any Compact whatsoever, bind his children or posterity.” Each person is born, Locke thinks, to natural freedom, even now. And this state we can only leave by our actions after we have attained the age of reason. So Hume

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overlooks in Locke the notion of what I call “joining consent,” as opposed to “originating consent.”

Again, Hume does not note the contrast in Locke between expressed consent and passive or tacit consent, another difference that is important. Locke says that anyone who has by actual agreement given consent to be a subject of a government must remain so; while those who submit to a government simply because they own and enjoy land under its protection (tacit consent), regain the liberty to join another government if they no longer possess and enjoy the land. They may obey the laws and receive the protection of the laws, but are not actually members of the commonwealth unless they have entered into it by express consent (¶¶119–122).

A more important and fundamental aspect of Locke’s doctrine that Hume fails to see, or at least fails to take account of in his argument, is that it has two parts. In speaking about Locke’s social contract criterion, I mentioned that one part, the first part, is that to be legitimate, a constitution must be such that each person could have contracted into it from a state of equal political jurisdiction. I discussed what is involved in that notion of contracting “into”—not, of course, a very precise notion, but an important element of Locke’s view which cannot be put aside.

The other part of his social contract criterion addresses the question of when an existing, legitimate constitution binds particular individuals, who are then full citizens and subjects of the regime. Locke here discusses joining consent, and he makes the distinction, discussed above, between express consent and passive consent. But the important point is that if this joining consent is to be binding, it must be the case that the form of the regime is legitimate (according to the first part of the social contract criterion). Locke is careful to say that promises extorted by superior force are invalid. He says it in ¶¶176, 186, 189, and 196 of the Second Treatise. I presume he would say the same thing in the case of illegitimate regimes. Passive consent, or express consent even, if they are as it were forced, fall under the same comments that he makes in these paragraphs about promises.

One should add as a consistent part of Locke’s view that individuals have a natural duty to support a legitimate regime when it does exist and when it is working effectively. This duty we might say arises from the fundamental law of nature and does not depend on anyone’s consent. Locke

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says in his account of revolution, when he is explaining how one can oppose the Crown, that to overthrow or alter a just constitution is one of the great crimes one can perform. I assume that in order to justify that, there would be an implicit appeal to the fundamental law of nature. So I am supposing that in Locke, if one has a just regime, then there is a duty we all have, regardless whether we consent, to comply with its laws; this is a consequence of the fundamental law of nature.

So consider then Locke’s account of how the English people at any given time could be bound to an existing regime, even if it originated in force and violence at some time in the past. He is able to give an account of that. His account would be that the present regime is legitimate if it has a form that could have been freely contracted into from a position of equal right, even if it actually reached its present form almost by accident or through various changes over time. If it now has the correct form—one that could be contracted into—then people are individually bound to it in virtue of their natural duty, arising from the fundamental law of nature, to support a legitimate regime.

If all this is right, then the really substantive issue of importance between Locke and Hume is whether Locke’s social contract doctrine, applied to the form of a political regime, and being a criterion that is hypothetical, would select as right and just the very same family of political regimes or constitutions that would be selected by Hume’s notion of the general necessities and interest of society, or, in other words, his notion of utility. Is Locke’s social contract criterion, the first part of it, going to lead to the same forms of regime being considered legitimate as will Hume’s principle of utility? Or will they be different? That is one way to understand the really substantive issue between them. And Hume never really discusses that issue. In fact he does not even seem to be aware of this fundamental matter. Hume is very effective in criticizing the notion of joining consent of individuals which is part of Locke’s general account of political obligation. Or at least I think you should consider whether that is so. But Hume never really discusses whether Locke’s criterion of agreement beginning from a state of equal right, and his own criteria of general advantage, are going to lead to the same form of regimes as being legitimate. These criteria offhand seem quite different. Certainly they don’t mean the same thing, so one might assume that they would lead to different outcomes. You could at

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least assume they are different criteria in the absence of a lot of argument to the contrary and explanation of both of the views, including what the notion of utility is. We will consider this point in the next lecture. In the meantime, you should think about whether or not these two criteria for a legitimate regime are the same thing, or whether the notion of equal right is going to lead to a difference with Hume’s view of utility.

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