Recently the discussion of the role of the State has had a resurgence thanks in no small part to the indiscretions of some of our elected officials. This may have led to political journalists dusting off their copies of Locke, Hobbes and Hume in order to go back to answering the questions of what the State is for and what are the obligations and consents involved in a modern democracy.
This essay will show why Locke’s social contract argument for the State is not robust enough on its own although it provides a starting point of the central issues in the debate. In outlining Locke’s position and providing counter-arguments against it I shall then provide another justification of the State, one based upon a negative indirect utilitarian view.
2. Justification of the State
So why is it necessary to justify the State at all? Would we not all be better just accepting that it is necessary and making it work for the good of the commonwealth? The reason why justifying the State is important is because the power of the State affects nearly every part of our lives. It affects the quality of the water we drink (who gives the State the right to put Fluoride in it?), the homes we live in (why can the State determine the minimum height of my doors) and even the air we breathe (what gives the State the power to impose taxes on the most polluting organisations and individuals?).
For Locke the issue of justifying the State was to show how its authority can be reconciled with the natural autonomy of the individual. He uses the libertarian notion of the individual as well as the device of the social contract to lay out his arguments. The issue of property (a defining factor in Libertarian thought) also comes into play. For Locke the State is justified if, and only if, every individual over which it claims authority has consented. It is on this idea of consent that Locke’s argument stands and falls.
I will now go on to explore further the idea of forms of consent and obligations associated with it.
3. Criteria of Consent
The most direct reading of Locke’s political philosophy finds the concept of consent playing a central role. His analysis begins with individuals in a state of nature where they are not subject to a common legitimate authority with the power to legislate or adjudicate disputes. From this natural state of freedom and independence, Locke stresses individual consent as the mechanism by which political societies are created and individuals join those societies. While there are of course some general obligations and rights that all people have from the law of nature, special obligations come about only when we voluntarily undertake them. Locke clearly states that one can only become a full member of society by an act of express consent. The literature on Locke’s theory of consent tends to focus on how Locke does or does not successfully answer the following objection: few people have actually consented to their governments so no, or almost no, governments are actually legitimate. This conclusion is problematic since it is clearly contrary to Locke’s intention.
Locke’s most obvious solution to this problem is his doctrine of tacit consent. Simply by walking along the highways of a country a person gives tacit consent to the government and agrees to obey it while living in its territory. This, Locke thinks, explains why resident aliens have an obligation to obey the laws of the state where they reside, though only while they live there. Inheriting property creates an even stronger bond, since the original owner of the property permanently put the property under the jurisdiction of the commonwealth. Children, when they accept the property of their parents, consent to the jurisdiction of the commonwealth over that property. There is debate over whether the inheritance of property should be regarded as tacit or express consent. On one interpretation, by accepting the property, Locke thinks a person becomes a full member of society, which implies that he must regard this as an act of express consent. Locke’s ideal would have been an explicit mechanism of society whereupon adults would give express consent and this would be a precondition of inheriting property for example. On the other interpretation, Locke recognized that people inheriting property did not in the process of doing so make any explicit declaration about their political obligation.
However this debate is resolved, there will be in any current or previously existing society many people who have never given express consent, and thus some version of tacit consent seems needed to explain how governments could still be legitimate. It is difficult to see how merely walking on a street or inheriting land can be thought of as an example of a “deliberate, voluntary alienating of rights” . It is one thing for a person to consent by actions rather than words; it is quite another to claim a person has consented without being aware that they have done so . To require a person to leave behind all of their property and emigrate in order to avoid giving tacit consent is to create a situation where continued residence is not a free and voluntary choice. It could be argued that that real consent is necessary for political obligation but that it is a different matter whether most people in fact have given that kind of consent. Simmons claims that Locke’s arguments push toward “philosophical anarchism,” the position that most people do not have a moral obligation to obey the government, even though Locke himself would not have made this claim.
Another way of framing Locke’s position is that tacit consent is indeed a watering down of the concept of consent , but Locke can do this because the basic content of what governments are to be like is set by natural law and not by consent. If consent were truly foundational in Locke’s scheme, we would discover the legitimate powers of any given government by finding out what contract the original founders signed. What really matters, therefore, is not previous acts of consent but the quality of the present government, whether it corresponds to what natural law requires. Locke does not think, for example, that walking the streets or inheriting property in a tyrannical regime means we have consented to that regime. It is thus the quality of the government, not acts of actual consent that determine whether a government is legitimate.
While modern theories do insist that consent is truly consent only if it is deliberate and voluntary, Locke’s concept of consent was far broader. For Locke, it was enough that people be “not unwilling”. Voluntary acquiescence may be all that is needed. As evidence we can point to the fact that many of the instances of consent Locke uses, such as “consenting” to the use of money, make more sense on this broad interpretation.
4. Obligations to the State
A related question has to do with the extent of our obligation once consent has been given, also known as universal political obligations. Justifying the State is usually thought to mean showing that there are universal obligations to obey the law. Since the duties of natural law apply only when our preservation is not threatened, then our obligations cease in cases where our preservation is directly threatened. This has important implications if we consider a soldier who is being sent on a mission where death is extremely likely. Locke believed that a soldier who deserts from such a mission is justly sentenced to death. Locke is therefore claiming not only that desertion laws are legitimate in the sense that they can be blamelessly enforced but that they also imply a moral obligation on the part of the soldier to give up his life for the common good. Locke thinks that our acts of consent can in fact extend to cases where living up to our commitments will risk our lives. The decision to enter political society is a permanent one for precisely this reason: the society will have to be defended and if people can revoke their consent to help protect it when attacked, the act of consent made when entering political society would be pointless since the political community would fail at the very point where it is most needed. People make a calculated decision when they enter society, and the risk of dying in combat is part of that calculation. Locke may also be recognising a duty based on reciprocity, much like that discussed by Richard Dawkins in ‘The Selfish Gene’, since others risk their lives as well.
Locke also states in the Two Treatises that the power of the Government is limited to the public good. It is a power that hath “no other end but preservation” and therefore cannot justify killing, enslaving, or plundering the citizens. Libertarians like Nozick read this as stating that governments exist only to protect people from infringements on their rights . An alternate interpretation draws attention to the fact that in the following sentences the formulation of natural law that Locke focuses on is a positive one, that “as much as possible” mankind is to be preserved. On this second reading, government is limited to fulfilling the purposes of natural law, but these include positive goals as well as negative rights. On this view, the power to promote the common good extends to actions designed to increase population, improve the military, strengthen the economy and infrastructure, and so on, provided these steps are indirectly useful to the goal of preserving the society .
At this point I would like to put forward a counter argument based on Utilitarian theory. The traditional idea of utilitarianism is that the morally correct action in any situation is that which brings about the highest possible total sum of utility. However a negative utilitarian view put forward by Karl Popper suggest that the State, should concern itself with the task of progressively formulating and implementing policies designed to deal with the social problems which actually confront it, with the goal of eliminating human misery and suffering to the highest possible degree. The positive task of increasing social and personal happiness, by contrast, can and should be should be left to individual citizens (who may, of course, act collectively to this end), who, unlike the state, have at least a chance of achieving this goal, but who in a free society are rarely in a position to systematically subvert the rights of others in the pursuit of idealised objectives.
Such a position accepts that we need the State in order to avoid the worst excesses of the state of nature but does provide another solution to the issue of justifying the State. Such a solution provides a framework from which to show how the States authority can be reconciled with the natural autonomy of the individual and where the dividing line sits.
The argument against such a view is that is still doesn’t really tackle the idea of consent. Negative utilitarianism unlike the traditional form of utilitarianism has had little written on it in terms of its relationship to political philosophy as the majority of the writings have been concerned with ethics. As such its philosophical underpinnings are still weak.
Firstly as I have shown the conditions for tacit consent cannot be met in the modern world and so the state cannot be justified in these terms. The strength in Locke’s argument lies instead with his concept of voluntary consent. This could take the form of voluntary consent to acceptance of the State via the ballot-box as in the case of the UK or a form of voluntary acquiescence such as in China where it is enough that the people be “not unwilling”. Although it might be contenscious choosing not to rise up and overthrow a government can be every bit as deliberate as going to the ballot-box. In such a sense both the citizen of the UK and China are giving deliberate and voluntary consent.
The concept of negative utilitarianism where it relates to political philosophy and obligation is an interesting one. We should be obligated to the State in its mission to of eliminating human misery and suffering to the highest possible degree.
Therefore Locke’s argument for the State is not robust enough on its own although it provides a starting point of the central issues in the debate. It frames but doesn’t end the debate. The state of nature shows us why the something is needed and the concepts of consent, both deliberate and voluntary, set the criteria for organising ourselves, whether that is to maximise happiness or minimise suffering.