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Professor Steven Smith: Today we want to begin with Mr.
Locke, Part II. And I said, at the end of class
last time, I want to speak a little bit about Locke and let's
just call it the spirit of capitalism.
And then I want to move into the issue of government by
consent, along with the idea of natural law,
perhaps one of Locke's clearly central, perhaps most
significant contribution to political philosophy,
the Doctrine of Consent. And various problems I wanted
to examine with you today, associated with consent and
what it means to consent to government.
But the first five chapters of the Second Treatise,
if you take them as a unit, and I think they should be,
they tell us a story. Locke presents us,
so to speak, with a kind of philosophical
anthropology that takes us through the state of nature,
the state of war, the creation of private
property. And in the fifth chapter
particularly, Locke begins as I mentioned
last time with, you might say,
with the original condition of nature which forms a kind of
primitive communism to the creation of property through the
labor of one's body and the work of one's hands.
And by the end of the fifth chapter, we have the creation of
really a kind of full-scale, sophisticated market economy
replete with various inequalities,
perhaps even some large-scale inequalities of wealth and
property, all within the state of nature.
How did this occur and most importantly for Locke,
what makes this legitimate? What legitimizes this
transition, so to speak, from the original state of
nature governed by nothing more than the law of nature to the
emergence of property and in a way,
a kind of market economy? In many ways,
what Locke is doing in the first five chapters of the
Second Treatise is re-telling or maybe better
re-writing the account of human beginnings that had originally
belonged to scripture. He tells the story of how human
beings finding themselves in a condition of nature with no one
or no authority to adjudicate their disputes and governed only
by a natural law, how they are,
nevertheless, able to create and enjoy the
use of property created and acquired through their labor and
work. Man, he tells us in these
opening chapters, is a property-acquiring animal,
the acquisitive animal, even in the state of nature
where there is again nothing but the natural law to govern human
associations and relations with one another.
But the problem with the state of nature for Locke and as to
some degree it was for Hobbes as well,
is its instability, with no civil authority to
umpire disputes, especially disputes over
property. The peaceful enjoyment and the
further acquisition of property, the fruits of one's labor,
are continually threatened by war and by conflict.
How can we ever be secure in our person or property with no
enforcement agency to resolve breaches of the peace,
where everybody is, so to speak,
again, the judge and jury and executioner of the natural law?
The need for government arises out of the real need to resolve
conflicts or disputes over property rights.
In many respects, this sounds like a very
familiar idea that government exists for the sake of the
protection of property rights. It's sort of kind of a cardinal
doctrine of what I suppose we would call today libertarianism,
the philosophy of libertarianism,
so important in a lot of American thought.
Locke is, in many ways, the first writer of my
familiarity who claims that--these are his words--"the
great and chief end of man's uniting into commonwealth is the
protection of their property." No one prior to Locke,
at least to my knowledge, I think, had ever said in quite
such a bold and straightforward way that the purpose of politics
was the protection of property rights.
And by property, Locke doesn't mean simply
objects around us that we have turned into property;
but property is rooted, he tells us,
first and foremost in our persons, in our bodies.
We all begin the life with a certain rudimentary property if
only in ourselves. Property, for him,
implies more than simply real estate, but everything that
encompasses our lives, liberties, and possessions.
These are all property in the original, and in many ways,
most revealing sense of the term "property," that is to say
things proper to us.
But Locke continually emphasizes to us the uncertainty
of the state of nature because "life there,"
he says, "is full of fears and continual dangers that lead us
to civil association." But think, in a way,
how different Locke's account of the transition from the state
of nature to the civil state is from Hobbes'.
In many ways, again, as I said,
Locke tries to modify, domesticate,
ameliorate Hobbes' harsh teachings.
Hobbes had emphasized the absolute fearfulness of the
state of nature. The state of nature was,
for Hobbes, a kind of state of existential dread,
absolute fearfulness. For Locke, however,
it is a condition continually beset by unease and anxiety;
to use the word he often uses, inconveniences.
The state of nature is one that consists of continual
inconveniences. It is our unease,
our restlessness that is not only a spur to our labor,
but is rather the cause of our insecurities that we have in the
state of nature. What is it about Locke,
what is it about his account? I don't mean what is it about
him in some psychological, personal, or biographical
sense, but what is it in his writing
that leads him to emphasize the restlessness,
uneasiness, and you might say perpetually anxious character of
human beings in the state of nature?
Do we ever hear Plato or Aristotle discussing the fearful
or anxious or restless character of human psychology?
I think not. Was this simply a function of
Locke's nervous disposition? Was the fact that he was simply
prone to reticence and a kind of fearfulness in the same way that
Hobbes himself said? Or does Locke's emphasis on the
uneasiness of our condition in the natural condition really
represent the qualities of a new class,
the new commercial classes as it were seeking to establish
their legitimacy? Locke's Second Treatise
in many respects is a work of middle class or as the Marxist
would like to say, perhaps the bourgeois
ascendancy. When Locke writes,
as he does, that the world is intended for the use of the
industrious and the rational, who was he talking about there?
Who are the industrious and the rational?
He is speaking about a new middle class ethos whose
title to rule rests not on heredity or on tradition;
he is not referring to a customary ruling class,
a class whose title to rule comes from its claims to
nobility. But he's referring to people
whose title to rule or potential title to rule rests on their
capacities for hard work, thrift, and opportunity.
As a former student of mine who took this class once said,
Locke's Second Treatise could well be called the
Capitalist Manifesto,
or the Anti-Communist Manifesto maybe, one could put it.
But is Lockeanism simply Machiavelli with a human face?
Put it that way. Isn't the rule of The
Prince in Machiavelli the rule of a new leader,
a new authority in some sense who operates outside the
parameters of traditional authority?
Isn't Lockeanism like Machiavelli in some way the
ethic of the self-made man with all of the insecurities and
anxieties, restlessness that being
self-made represents? Does Lockeanism represent in
some ways the tranquilization of Machiavelli, turning
Machiavelli's fierce warlike ethic,
the ethic of conquest and domination to,
in fact, the ethic of work and as it were,
the conquest and domination of nature through labor and our
hard work? Is this, again,
simply Machiavellianism with a human face?
But in any way, I think, or what I want to
suggest is that Locke's political philosophy gives
expression to what the great German sociologist Max Weber,
you know him, yes, Weber? You read him in Intro
Sociology, no? Okay, well, you will.
Weber, his famous book called The Protestant Ethic and the
Spirit of Capitalism, 1904, great work,
classic work. In that work,
Weber argued that the capitalist ethic made a high
duty, a moral duty, turned it into a moral calling,
a religious calling, the duty of limitless
accumulation of capital and this was,
in Weber's terms, the outgrowth of the Puritan
and Calvinist movements of the sixteenth and seventeenth
centuries. For Weber it was the Protestant
reformation that had taken root in the countries of Northern
Europe and particularly where the roots of this capitalistic
ethos first developed and again adopted a wholly new moral
attitude to such things as property,
property acquisition and moneymaking.
Previously, these things had been deemed to be morally
dubious, shunted aside, there's something shameful
about this. You can certainly see this in
the classical writings, political philosophy that we
did. For these early moderns,
capital accumulation became a kind of high calling and moral
duty. God gave the world to the
rational and the industrious, not, he says,
to the quarrelsome and contentious;
not, that is, to those prideful aristocrats
who seek to struggle for domination and power over one
another. What Locke brings into being
is, again, a wholly new and revolutionary moral attitude
towards property and property acquisition that again finds its
expression, great expression a century
later with Adam Smith. And, of course,
from Adam Smith we have the whole world of modern economics.
So, how many of you are potential economics majors in
here? I bet more than one.
Without John Locke, there would be no modern
discipline called economics because he was the one,
again, a century before Smith and the rise of the school of
political economy, who made the first and decisive
move which was to, in many ways,
make respectable and even more than respectable,
turn into a high moral calling and dignity the acquisition of
property and turn government, turn politics into a tool for
the protection of property and property rights.
That is the significance in many ways of what Locke has
done. I want to talk,
probably not today but next Monday, on some of the in many
ways the pros and cons of this immense moral transformation
regarding property and economics that Locke has helped to bring
into being.
But for the rest of today, what I want to focus on is
Locke's idea of consent, the idea that the origin of all
government, or at least all legitimate government is said to
derive from consent, the consent of the governed,
an idea that was implicit in some respects in Hobbes' theory
of the covenant that creates the sovereign,
to which Locke gives, in many ways,
much greater pride of place. In chapter 8 of the Second
Treatise, Locke gives us there,
he provides us with a kind of hypothetical reconstruction of
the origin of society, of all societies.
He writes in section 95, "The only way whereby anyone
divests himself of his natural liberty and puts on the bonds of
civil society, is by agreeing with all others
to join and unite in a community for their comfortable,
safe, and peaceful living." Locke tells us there is
something about the legitimate ends of society,
the ends that civil society serves, comfortable,
safe, and peaceful living. And he goes on to affirm that
whenever a sufficient number of people have consented to make a
single community, and I quote him again,
"they are thereby presently incorporated and make one body
politic," they make one body politic,
"wherein the majority have a right to act and conclude for
the rest." That short statement,
section 95 of chapter 8, seems to make maybe the first
and most powerful case for democracy.
On the basis of that statement, a famous Yale professor of at
least a couple of generations ago,
wrote an extremely important book that made John Locke into a
majority rule Democrat. He said in that book that
Locke's philosophy provides the faith of the majority rule
Democrat, largely focusing on sections
95,96 as sort of the key to Locke's political teaching in
the Second Treatise. Does anybody know the name of
that man who wrote that book, by any chance?
Famous Yale Political Scientist, back a while ago.
Nobody remembers Willmoore Kendall's book on Locke?
You know it, yes, you were shaking your
head. No, you don't?
Okay, whatever. It's not important.
Not important. I just mention it in passing.
But consider the following sentence, again,
also that seems to add to this claim.
"For when any number of men by the consent of every individual
make a community, they have thereby made that
community one body with a power to act as one body which is only
by the will and determination of the majority."
What are we to make of this assertion and in many ways,
continued assertion, that in any community,
we are ruled by the majority? To be sure, that idea would
have come as an immense surprise, no doubt,
to the King of England to learn that his rule was justified by
the consent of the governed, or if you had done something
like crossed the English Channel and go to the France of Louis
XIV of this period, Louis XIV who famously said
L'État c'est moi, "I am the state," no doubt would have
been very surprised and probably found laughable the idea that
his legitimacy came from the consent of his subjects.
Who had ever thought such a thing, that government derives
from the consent of the majority?
Is Locke, in saying that, denying the legitimacy of all
government, all governments that do not derive from the consent
of the majority? Is he, on the basis of this,
truly a kind of majority rule Democrat?
Does he undercut, for example,
something like Aristotle's argument, who had seen any
number of forms of government as equally legitimate in many ways,
so long as they are moderate and ruled by law?
Or is Locke saying, again, that there is only one
form of government, one, again, legitimate or just
form of government, government by the majority?
That's what he appears here to be saying.
I mention the sense appears, Locke is a slippery fish.
He's a slippery writer. He has a tendency to take back
with one hand what he gives with the other, doesn't he?
The agreement to make one community, as he calls it
however, is not the same thing exactly as establishing a form
of government. In many ways,
choosing to have a government, which is what Locke is talking
about here in these relevant sections--95 and 96 and so on--
choosing to have a government to be one people,
so to speak, is in many ways an act prior to
electing any particular form of government to rule you.
The Second Treatise, in some way, specifies only that
governments derive their just power from the consent of the
governed. It does not seem to say very
explicitly about what form of government people might wish to
consent to. In many ways,
the Second Treatise, one wants to say,
is even rather neutral to forms of government.
The only form of government that seems to be absolutely
ruled out on Locke's account is some kind of absolute monarchy.
We cannot cede our rights entirely to another individual.
But he seems to be relatively open to whatever it is people
may wish to consent to. The act of consent alone does
not create a government. It is merely an act to form a
society. In many ways,
he accepts Pope's famous dictum, Alexander Pope's famous
dictum: "...for forms of government let fools contest,
whate're is best administered is best."
In other words, you have the best thing that
administers government that protects your rights to property
and what form it is, whether it's monarchic,
aristocratic, republican or whatever,
is not so important. What is important,
and for Locke about the only thing that is important,
is that that form of government receive the consent of the
governed. And, of course,
people don't necessarily have to consent to democracy.
If Locke is democratic in that way, it is only because he's
democratic in a sense that government derives the authority
from consent. It does not necessarily have to
be democratical in form in that respect.
But it is this idea of consent--and you will no doubt
talk about this in your sections-- it is this idea of
government as being by consent that has so much insinuated
itself-- I'm not sure that's the right word -- but has so much
formed in many ways the cornerstone of the American
regime and American political thought,
in many ways, even more, I would suggest,
than his doctrine of property and property rights.
Locke's Doctrine of Consent is what captured the imagination of
the American founders. When Jefferson wrote about the
ends of government, he said the ends of government
are to protect life, liberty, and the pursuit of
happiness. He seems to have modified
Locke's statement about life, liberty, and estate.
Why did he do that? We could talk about that and of
course, what is meant by the pursuit of happiness certainly
is intended to entail, among other things,
the acquisition of property. But Jefferson in some ways sort
of elevates Locke's language, Lockean language;
it is not simply focused on property but the pursuit of
happiness in many ways however construed consistent with the
rights of others. But it is Locke's language of
consent that just powers of governments derive from consent
that seems to have most inspired Jefferson and the founders.
And through that doctrine it, of course, had a huge effect on
America's greatest second founder, Abraham Lincoln.
Consider the following passage from Lincoln.
This is Lincoln in 1854 in his first major speech,
first most important speech, sometimes called the Peoria
Speech, where he was already debating Stephan A.
Douglas. It was for the Senate campaign
in Illinois, appropriate in our time of the year,
where they were then arguing, as they would again for the
presidential campaign, argue over slavery and here is
what Lincoln writes: "When the white man governs
himself, that is self-government;
but when he governs himself, and also governs another man,
that is more than self-government,
that is despotism," Lincoln says.
"My ancient faith," no doubt thinking about the
Declaration and Jefferson's ideals,
"My ancient faith teaches me that there can be no moral right
with one man making a slave of another."
"What I do say," Lincoln continues here,
"is that no man is good enough to govern another without that
other's consent." "This," he concludes,
"is the leading principle, the sheet anchor of American
republicanism." So there is Abraham Lincoln
referring to the Doctrine of Consent by which he says that no
man is good enough to govern another without that other's
consent, calling this the leading
principle or the sheet anchor of American republicanism.
That statement, as I was suggesting a moment
ago, is part of his debate with Douglas over the issue of
slavery and it, in many ways,
cut to the core of the meaning of consent.
Douglas also, in some respects,
tried to derive his views from an idea of consent.
What Douglas said was that, regarding slavery,
he said he didn't care, it was a matter of indifference
to him, whether people of a particular
state or a territory wanted slavery or didn't want it.
Whatever they wanted, that is to say whatever the
majority consented to, was all right with him.
He might prefer it not to be but again, it was what people
consented to, what the majority wanted that
would decide the matter. Lincoln, however,
had said that the Doctrine of Consent is not simply a kind of
blank check, that the Doctrine of Consent
still implied a set of moral limits or restraints on what a
people might consent to. Consent was inconsistent with
slavery, he said, because again,
no one can rule another without that other person's consent.
And in many ways that crucial debate, so fundamental to
American history and politics, grows out of a kind of internal
problem within Locke's Doctrine of Consent,
namely that problem is, what form of government does it
make sense for a majority of people to consent to.
Does government, in other words,
by consent mean government by whatever the majority wants,
could be a kind tyranny of the majority, whatever they want?
Or does government by consent entail, again,
certain limits and restraints on what majorities can do?
What guarantees does Locke provide, you might ask,
that government by consent will be informed consent or rational
consent? Can people simply consent to
anything, to be ruled by any means?
This is obviously not an idle or a purely theoretical question
since popular majorities we know in the world today,
popular majorities can choose, on the basis of whim,
will, or some other kind of arbitrary passion.
Unless there seems to be some set of moral restraints on what
individuals or majorities can consent to,
what is to prevent a majority from acting just as despotically
or just as arbitrarily as a king or any absolute power?
That was the question that Lincoln was raising in his
argument against Douglas and his claims about consent.
But this question of restraints or limits on what a people can
consent to leads to another question about the Doctrine of
Consent. How is consent conferred?
We are citizens of the oldest democracy in the world,
most of us, I guess; maybe not everybody but most
people in this room are citizens of the oldest democracy in the
world. Did anyone ask you for your
consent or me, considerably older?
Did anyone ask for my consent? The idea of giving consent to a
form of government implies something active,
an emphatic voice but has anyone since the first
generation of founders who ratified the Constitution ever
been asked or required to give their consent to it?
You might ask what is Locke's answer to this problem and it is
a problem that he is aware of and struggles with in that
important chapter.
His answer turns out to be something quite different from
our views about citizenship and who is a citizen and how is the
consent of the citizen conferred on government.
In section 118 he writes, "A child is born a subject of
no country or government." In other words,
he's saying citizenship is not conferred by birth;
just being born in a place does not make you a citizen of it as
doctrine that we hold. "Every person," Locke
continues, "is born free and equal in many ways in a kind of
state of nature under the authority only of their parents.
What government that person may choose to obey is not a matter
of birth, but of choice." And again, Locke seems to be
making some kind of active principle of choice or decision,
a principle of citizenship and the conferring of consent.
And it is only, he says, that when a child
reaches what he calls the age of discretion--18 or 21 or
something like that--that one is obligated to choose,
do some sign or mark of agreement to accept the
authority of government. Locke is not altogether clear
about how such a sign or a mark is to be given.
One suspects from what he is saying, he maybe referring to
some kind of oath or some kind of pledge,
or some kind of civil ceremony where one vows or pledges with
one's word the acceptance of the form of the state.
"Nothing can make any man so," Locke writes,
that is to say an actual citizen of a state.
"Nothing can make any man so, but his actually entering into
it by positive agreement, an express promise and
compact," he says at section 122.
By express promise and compact, "such an express promise or
agreement leaves one," he says, "perpetually and
indispensably obliged to be and remain unalterably a subject of
it," that is to the state.
So once you give your word or agreement, Locke says,
you are perpetually and indispensably obligated to that
state. That's how seriously Locke
takes this idea of consent. It's something that can only be
entered into at the age of discretion.
It must be given consciously, fully, rationally,
presumably in some kind of ceremony and once given,
your consent to the form of government remains,
as he says, perpetual. You are bound unalterably,
as he puts it. There's no such thing as taking
it back. It shows you how important
Locke puts on the word, the oath, or some kind of civil
agreement. One's word is one's bond.
To give voice or consent to government is not an act to be
entered into lightly, he says, or implies but it is a
kind of lifetime commitment and it also shows us how different
Locke's view of the citizen is from ours.
In other words, it would seem,
for Locke, the only people who are full citizens in our country
would be people who have given their active consent and the
only people who have given their active consent are people who
have undergone what we interestingly call a kind of a
naturalization process. Is anyone here a naturalized
citizen, as we call it? Has anyone ever been to a
naturalization process? No, nobody?
It's administered by a judge and you swear allegiance to the
new country? You presumably shed your
obligations to your previous country.
You swear your allegiance to this one.
That seems to be the kind of thing Locke appears to be
talking about and it's interesting that,
again, the only people in our society, in our country,
who would be full citizens would be naturalized citizens.
Again, birth alone does not confer on you citizenship of any
particular country. But what does that mean for the
rest of us, those who have not given their active consent?
Locke is aware that not everyone gives their active
consent. That's why he introduces
another idea for how consent may be given.
He talks about what he calls tacit consent.
There are those maybe who have not sworn allegiance or given a
civil oath but who nevertheless can be said to have given their
tacit consent to the form of government and its laws.
But how do we give tacit consent?
Tacit consent is a strange word because consent implies
something active and open, where tacit,
think of Locke's taciturnity; tacit implies something closed
or concealed. How is tacit consent given?
That's a problem you can see Locke working on.
To some degree, he says, anyone who simply
enjoys the protection of the law,
the security of property and person under the law can be said
to have given their tacit consent.
They give it, so to speak,
ex silentio. Even their silence confers
consent. But how do we really know?
You could say, how do we know that silence
confers tacit consent and silence is not simply silence?
An example I think of, for example,
if you go to a wedding ceremony, or I guess in some
wedding ceremonies, the justice or the minister,
whoever, says--what is the phrase about whoever hold your
peace? If anybody has any question
about this ceremony, speak now or forever hold your
peace and of course everybody--except in the movies,
of course--everybody's always silent.
Nobody says it so their consent, their tacit consent is
given; their silence from their
silence to that question, their tacit consent is given.
But again, that would be one way but again,
how do we know when silence confers tacit consent or silence
is simply that, silence?
It's an issue that Locke struggles with and to be sure
never fully, or I think satisfactorily,
resolves. Maybe you will resolve it.
Maybe you will resolve it in your next paper,
if you have the opportunity to write about consent and the
difference between the expressed and tacit forms for citizenship.
Also, the question being--which Locke alludes to but does not
fully or does not quite answer-- is there any difference in
privileges, in civil privileges between
citizens how have given their expressed consent and those who
have only been said to tacitly consent to the form of
government? Does he suggest that one class
of citizens has greater rights or greater responsibilities than
the other? You might look into that
question too and see if you think Locke suggests any
differences on that.
To go back and just kind of begin to wrap this up for the
day, Locke does not appear to endorse any particular form of
government in the Second Treatise.
The task of forming the government will fall to the
decision of the majority but again,
what form the majority will decide remains,
to some degree, an open question.
What gives Locke or Lockeanism its distinctive tone,
its distinctive voice is the claim that whatever kind of
government a majority decides upon,
it must be one that limits the power of the sovereign.
You cannot--and in this respect, I think Locke is far
closer to Lincoln than he was to Stephan A.
Douglas -- consent does not simply mean consent to arbitrary
rule; it does not mean consent for
the power of the sovereign to do anything.
Locke's theory of constitutional government is a
theory of restrained government, of constitutional restraints,
of rule by law. Locke gives,
in many ways, the importance of law and
constitutional restraint; what we would today call,
I suppose, limited government. He gives this far greater
expression, far more powerful expression than any of his
predecessors; certainly not Hobbes,
who had attributed absolute power to government or even to
Aristotle who, in many ways,
shares some resemblances with Locke, but even Aristotle had
severe doubts about rule of law. Locke is absolutely confident
that limited government, restraints on power--whether
that power be from the one, the few or the many--restraints
on power is the only kind of government that can be trusted
to protect rights. And in one of the few jokes
that appears in the Second Treatise -- you might have
missed it because Locke is a subtle jokester;
he's not like Machiavelli or Plato.
Locke is a very understated jokester;
he was an Englishman after all. He writes in section 93,
referring to Hobbes, but you'll also see his
wonderful animal references. He writes: "If men quitting the
state of nature entered into society, they agreed that all of
them but one should be under the restraint of laws,"
thinking about Hobbes' Leviathan.
"But that he should still retain all the liberty of the
state of nature increased with power and made licentious by
impunity." He goes on to say,
"This is to think that men are so foolish that they take care
to avoid what mischiefs be done to them by polecats and foxes
but are content, nay think it safety to be
devoured by lions," the lion being the Leviathan sovereign;
whereas in the Lockean state of nature, human beings are like
polecats and foxes. They're noxious creatures,
he says, but they're not truly dangerous to you and when one
leaves the state of nature to enter civil society,
one is certainly not doing so to empower a sovereign with
lion-like powers over you, as he says.
Who would do this? It's better to have some kind
of theory of restrained government, a limited government
to do this for you. I'm going to end on this note.
What I want to do on Monday, when I wrap up Locke,
is to continue with his doctrine of limited government
because it turns out there is a very important exception to it.
There is a kind of escape clause and I would encourage you
as you read it to pay particular attention to chapter 14 of the
Second Treatise, his chapter on what he calls
prerogative power, the doctrine that has very,
very important and grave implications for our politics
today. It's a very important chapter
and I want us to continue this and then talk a little bit about
the pros and cons of Lockean political philosophy.