Locke and the non-arbitrary

European Journal of Political Theory

Volumn 2, Issue 3, 2003, Pages 261-279

  Halldenius, Lena ^a,b  

^a LUND UNIVERSITY   (Sweden)

^b UPPSALA UNIVERSITY   (Sweden)

Author keywords

Dependence; Government; Hypothetical consent; Legitimacy; liberty; Locke; Non arbitrariness; Public good; Republicanism; Trust

Indexed keywords

EID: 34248059574     PISSN: 14748851     EISSN: None     Source Type: Journal    
DOI: 10.1177/1474885103002003002     Document Type: Article

References (82)

1. Philip Pettit (1996) 'Freedom as Antipower', Ethics 106(3): 576-604
2. and (1997) Republicanism: A Theory of Freedom and Government. Oxford: Clarendon Press.
3. Quentin Skinner (1998) Liberty Before Liberalism. Cambridge: Cambridge University Press
4. and (2003) 'A Third Concept of Liberty', Proceedings of the British Academy 117: 237-268.
5. Also Lena Halldenius (2001) Liberty Revisited. Lund: Bokbox. Both Pettit (1997), p. 40, and Skinner (1998), p. 55n., mention Locke as a representative of this view of liberty but do not expand on it.
6. Although this conception of liberty is typically - albeit not necessarily - associated with a version of the republican tradition of political thought, I make no claim of contributing to the discussion of what is distinctive about the republican tradition, who fits into it, and how many versions of it there are. Skinner's 'neo-roman' republicanism differs from Pocock's 'civic humanism'
7. (J.G.A. Pocock (1975) The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition. Princeton: Princeton University Press) not only in historical sources but also, and importantly, in how it conceptualizes liberty.
8. On the complexity of republicanism, see for example Quentin Skinner (1978) The Foundations of Modern Political Thought. Cambridge: Cambridge University Press
9. and Nederman's contribution to James Hankins (ed.) (2000) Renaissance Civic Humanism: Reappraisals and Reflections. Cambridge: Cambridge University Press.
10. See also Hankins's 'Introduction' in the same volume.
11. For other recent discussions of various aspects of this tradition of thought, see for example Mark Philp (1998) 'English Republicanism in the 1790s'', Journal of Political Philosophy 6(3): 235-62.
12. Bill Brugger (1999) Republican Theory in Political Thought: Virtuous or Virtual? London: Macmillan.
13. M.M. Goldsmith (2000) 'Republican Liberty Considered', History of Political Thought 21(3): 543-59.
14. Anne Phillips (2000) 'Feminism and Republicanism: Is this a Plausible Alliance?', Journal of Political Philosophy 8(2): 279-93.
15. Nicholas Buttle (2001) 'Republican Constitutionalism: A Roman Ideal', Journal of Political Philosophy 9(3): 331-49.
16. Locke uses 'reason' in two ways. 'Reason' is the faculty we use to discern natural morality, but it is also that natural morality. See also p. 65 of James Tully (1984) 'Locke on Liberty', in J. Gray and Z. Pelczynski (eds) Conceptions of Liberty in Political Philosophy, pp. 57-82. London: Athlone Press.
17. Second Treatise of Government, para. 6.
18. Locke's Two Treatises of Government will henceforth be referred to as TG1 and TG2 respectively. Quotations are from Peter Laslett's edn (1988) Cambridge: Cambridge University Press, and references are by paragraph number.
19. Brugger (n. 2), p. 81.
20. Isaiah Berlin (1969) 'Two Concepts of Liberty', in Four Essays on Liberty, pp. 118-72, p. 123. London: Oxford University Press.
21. Mark Goldie (1993) 'Introduction', in Two Treatises of Government, pp. xv-xlvi, p. xxv. London: Everyman.
22. John Marshall (1994) John Locke: Resistance, Religion, and Responsibilities, pp. 217-18. Cambridge: Cambridge University Press.
23. Laslett's 'Introduction' (n. 4), p. 112.
24. Skinner (n. 1), p. 84.
25. Pettit (1996, in n. 1), p. 578; cf. 1997, p. 52.
26. Tully offers in relation to Locke the following description of what 'arbitrary' means: ' "Arbitrary" means that the exercise of the will need not be constrained by moral reasons; that action is justified by one's inherited authority, not by demonstrating that it is conformable to rational moral principles', James Tully (1993) An Approach to Political Philosophy: Locke in Contexts, p. 286. Cambridge: Cambridge University Press.
27. TG2 22.
28. It is important to remember that the law of nature is not imperative; it is normative. In other words, it is not self-evident or innate; it requires moral reasons. 'I think there cannot any one moral rule be proposed whereof a man may not justly demand a reason': John Locke (1993 [1689]) An Essay Concerning Human Understanding, ed.John W. Yolton, 2. 2. 4. London: Everyman (henceforth Essay). See also Tully (1993, in n. 12), p. 292.
29. TG2 63, 59.
30. Liberty is also necessary for salvation. One bearing thought in Locke's case for religious toleration is that God can only be pleased if we turn to him freely. (1983 [1689]) A Letter Concerning Toleration, ed. James H. Tully, p. 39. Indianapolis: Hackett Publishing Co.
31. His case for toleration is theological as well as moral and political, and I am consequently not convinced by Mendus's claim that it is founded solely on considerations of political self-interest. Susan Mendus (1989) Toleration and the Limits of Liberalism. London: Macmillan.
32. In An Essay Concerning Human Understanding, Locke states that performing an action freely is not the same thing as performing it voluntarily. Liberty in action presupposes voluntariness but the reverse does not hold. Liberty is 'the power of doing or forbearing to do, according as the mind shall choose or direct' (Essay, 2. 21. 10). For me to be a free agent, my own mind shall direct me as to which actions I shall perform or not perform. '[S]uppose a man be carried whilst fast asleep into a room where is a person he longs to see and speak with, and there locked fast in, beyond his power to get out; he awakes and is glad to find himself in so desirable company, which he stays willingly in' (Essay, 2.21. 10). Is this stay not voluntary? Locke answers that it is, but it is still not free since 'he has not freedom to be gone'.
33. Goldie (n. 7), p. xxv.
34. At the time of writing the Two Treatises as well as the Essay, Locke relied primarily on reason as man's (limited but still sufficient) guide to knowing God's law, the divine rule 'whereby men should govern themselves' (Essay 2. 28. 8). See also the entries on 'Morality' and 'Religion' in John W. Yolton (1993) A Locke Dictionary. Oxford: Blackwell.
35. Simmons claims that the term 'law of nature' denotes divine law when it is discovered by man through reason, rather than through revelation. A. John Simmons (1992) The Lockean Theory of Rights, pp. 16-17. Princeton, NJ: Princeton University Press.
36. He also says that it functions as a rule-consequentialist principle of action (pp. 50, 52-55). Locke would later lose faith in reason as a reliable guide to divine law, asserting instead the 'superiority of revelation to reason'. (Wainwright's 'Introduction' to his edn of Locke (1987 [1705-07]) A Paraphrase and Notes on the Epistles of St Paul to the Galatians, 1 and 2 Corinthians, Romans, Ephesians, p. 32. Oxford: Clarendon Press.
37. For an examination of the theological underpinnings of Locke's thought and how they changed over the course of his life, see e.g. lan Harris (1998) The Mind of John Locke: A Study of Political Theory in its Intellectual Setting, revised edn. Cambridge: Cambridge University Press.
38. Marshall (n. 8), pp. 319-21 and ch. 10, sections vi-vii. Also Wainwright's 'Introduction' to the Paraphrase.
39. A much debated question here is whether there is anything interesting or illuminating left of Locke's conception of reason and natural law if you drop God out of the picture. I will not venture an opinion on this, since I do not consider myself forced to do so. I am concerned with Locke's argument for political legitimacy and how political liberty fits into it. The problem of a 'Locke without God' is not necessarily relevant for that purpose. What is necessary, however, is that, on any Lockean account, the content of morality is and has to be objective. For a discussion on the question about God, see John Dunn's 'What is Living and What is Dead in the Political Theory of John Locke?', in John Dunn (1990) Interpreting Political Responsibility. Essays 1981-1989. Cambridge: Cambridge University Press. Simmons argues that Locke's starting points are both theological and secular and that there is a wider diversity in his theory than Dunn allows. See Simmons (n. 19), pp. 10-11, 39, 44-45. Also Harris (n. 19), pp. 208-09.
40. Berlin (n. 6), p. 147.
41. TG2 57. See also John Dunn (1969) The Political Thought of John Locke, p. 168. Cambridge: Cambridge University Press: 'Law . . . is the antithesis of force. It represents ease against anxiety, liberty as against subjection'.
42. TG2 3. The last emphasis is mine.
43. This is emphasized by Dunn: 'the powers granted to terrestrial authorities within the legal order are logically dependent on their being exercised to serve the ends of that order, the ends, that is, of those subject to it' (n. 22), p. 178. See also Harris (n. 19), pp. 246-48, and TG2 12.
44. TG1 81. On power as 'right' and as 'capacity' in the Lockean case, see Barry Hindess (1996) Discourses of Power: From Hobbes to Foucault, pp. 51-58. Oxford: Blackwell.
45. TG2 164.
46. Hanna Pitkin (1972) 'Obligation and Consent', in P. Laslett, W.G. Runciman and Q. Skinner (eds) Philosophy, Politics and Society, 4th series, pp. 45-85. Oxford: Blackwell.
47. Originally published in 1965 in the American Political Science Review.
48. Ibid. pp. 54 and 57.
49. Ibid. pp. 56 and 57.
50. A. John Simmons (1976) 'Tacit Consent and Political Obligations', Philosophy and Public Affairs, 5(3): 274-91, pp. 284 and 285.
51. See also Simmons (1979) Moral Principles and Political Obligation, pp. 84-88. Princeton, NJ: Princeton University Press.
52. A. John Simmons (1993) On the Edge of Anarchy: Locke, Consent, and the Limits of Society, p. 54n. Princeton, NJ: Princeton University Press; my emphasis.
53. I talk about legitimacy - a right to hold political power, a right to rule - whereas Pitkin talks about obligation - a duty to obey. Since Locke, as many others, holds that where there is legitimate political power, there is also a duty on the part of the subjects to comply with it, this does not make a difference here. I would personally argue that legitimacy and political obligation are analytically distinct, but Locke does not. He never indicates that the conditions for legitimacy are different from the conditions for obligation. Furthermore, if one thinks it odd that anyone can be obligated to obey a ruler to which she has not consented, one should, I think, consider that, with the argument from natural law, it follows that the ultimate obligation is to the dictates of natural law, not to the government. Government has its potential as a legitimate power in virtue of its being the best shot at upholding natural morality, to which everyone is obligated.
54. Tully (n. 12), pp. 23, 30ff., 300. Richard Ashcraft (1986) Revolutionary Politics and Locke's Two Treatises of Government, p. 500. Princeton, NJ: Princeton University Press.
55. Cf. John Dunn (1980) Political Obligation in its Historical Context, pp. 31-33. Cambridge: Cambridge University Press.
56. Dunn indicates that Locke might have thought of express consent as a hypothetical event, 'as the answer they [all natural-born Englishmen] would give if asked the question "Are you an Englishman, a subject of the King of England?" ' (n. 33), pp. 41-42. Dunn does not discuss whether this would complicate the status of consent as a necessary condition of legitimate authority.
57. Remember that in Locke's model people cannot confer more authority on the ruler than they would have themselves in relation to each other in the state of nature. In other words, no one can effectively consent to the ruler having more power than natural morality allows. The ground for this, as for everything else in Locke's political theory, is the natural equality of all men. See also On the Conduct of the Understanding in (1996 [1693, 1706]) Some Thoughts Concerning Education and Of the Conduct of the Understanding, ed. Ruth W. Grant and Nathan Tarcov, p. 223.
58. Indianapolis and Cambridge: Hackett Publishing Co. On how Locke's insistence on natural equality challenged entrenched hierarchies, not only in political relations but in social life generally, see for instance W.M. Spellman (1997) John Locke, ch. 5. London: Macmillan.
59. TG1 92.
60. An objection to the reasonableness of this idea (regardless of whether it is a plausible interpretation of Locke) is to ask: 'Suppose the rulers falsely believe that they govern in accordance with the correct end and furthermore that the subjects also falsely believe this and therefore consent. Would Locke say this government is not legitimate?' Yes, I believe he would. The implications of the objection are, first, that the argument for legitimacy that I attribute to Locke is compatible with a non-democratic system. But it is fairly obvious that Locke's theory is compatible with a non-democratic system. There is actually no reason to think that he ever contemplated a democratic system in our modern sense. For an interesting discussion of this see Ellen Meiksins Wood (1992) 'Locke Against Democracy: Consent, Representation and Suffrage in the Two Treatises', History of Political Thought 13(4): 657-89. Wood argues persuasively that Locke did not regard membership in political society as necessarily having anything to do with a right to vote or participate actively in political affairs. Being a member of political society is to be governed by a constitutional authority under law, rather than by the arbitrary will of one man (pp. 685-86). It can, I think, still be argued that a form of participation remains, in the idea of accountability itself. Second, that consent can convey legitimacy even if it is given under false convictions about the correct end of government. If this were so, consent would have an independently legitimating role, which is what I am arguing against.
61. See for instance Tully, who does not discuss implicit consent (n. 12), pp. 33, 300, and Waldron who claims that Locke operates with three types of consent, express consent together with two different types of tacit consent, which apply to different groups of people. Jeremy Waldron (1989) 'John Locke: Social Contract Versus Political Anthropology', Review of Politics 51(1): 3-28.
62. D.D. Lloyd Thomas argues that there is no act that could constitute implicit consent (1995) Locke on Government, p. 39. London and New York: Routledge.
63. Hampsher-Monk would not regard that as a problem since, on his view, tacit (implicit) consent is not an act at all, neither overt nor covert. It 'is simply a logical consequence of the moral freedom and autonomy which adult human beings enjoy that men in such a situation are to be described as consenting'. lain W. Hampsher-Monk (1979) 'Tacit Concept of Consent in Locke's Two Treatises of Government: A Note on Citizens, Travellers, and Patriarchalism', Journal of the History of Ideas 40(1): 135-39, p. 136. On both Simmons's and Dunn's views, tacit consent would in that case not qualify as consent at all, since it dispenses with voluntarism and choice. See Simmons on consent as necessarily a deliberate undertaking (1979, in n. 30), pp. 57, 64, 70, 77, 91, and a 'morally significant political choice' (n. 31), p. 84. See Dunn on voluntariness and choice (n. 34), pp. 35, 48. I think Simmons's definition makes it difficult to distinguish between express and tacit consent, whereas on Hampsher-Monk's analysis tacit consent loses its point. Hampsher-Monk's interpretation is similar to some forms of what Simmons calls 'implied consent', which strictly speaking is not consent at all (1979), pp. 88-89.
64. TG2 113.
65. TG2 117, compared to 121.
66. TG1 94.
67. TG2 132.
68. Hampsher-Monk (n. 38).
69. Lloyd Thomas (n. 38), p. 39. Also Simmons (1979, in n. 30), p. 91.
70. There are different opinions here as well. According to Dunn, accepting property can be regarded as an example of hypothetical express consent (n. 33), pp. 41-42. Hampsher-Monk sees express consent as a precondition for inheritance, rather than inheritance as an example of a form of consent. He does not discuss inheritance as tacit consent and one might wonder why not. Why could inheriting property not be that kind of enjoyment from which consent follows as a logical consequence (Hampsher-Monk (n. 38), p. 136)?
71. Simmons confuses hypothetical consent with implied consent; see his first example of implied consent on p. 89 in Simmons (1979, in n. 30).
72. '[H]ypothetical contracts do not supply an independent argument for the fairness of enforcing their terms. A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all.' Ronald Dworkin in N. Daniels (ed.) (1989) Reading Rawls, pp. 16-53, PP- 17-18. Stanford: Stanford University Press. This reasoning can be applied to all forms of agreement, not only contracts in a strict sense but also the wider notion of consent. See for instance Dunn (n. 20), p. 21.
73. TG2 131. Note that the state of nature is the state all men are naturally in (e.g. TG2 4), not the state they were naturally in at some previous point in time.
74. A Letter Concerning Toleration (n. 16), p. 48.
75. TG2 142.
76. TG2 222, 228.
77. TG2 158.
78. TG2 166.
79. Does this open up for a new kind of arbitrariness? What if the ruler has a different opinion about what the public good is than the public itself? What if the ruler sincerely believes that it is in the public good that certain groups do not enjoy political rights? On this point, see A Letter Concerning Toleration (n. 16), p. 49: 'But what if the Magistrate believe such a Law as this [interfering in someone's worldly affairs for the sake of their religion] to be for the publick Good? I answer: As the private Judgment of any particular Person, if erroneous, does not exempt him from the obligation of Law, so the private Judgment (as I may call it) of the Magistrate does not give him any new Right of imposing Laws upon his subjects'. (See also p. 42.) In A Letter Concerning Toleration Locke argues for religious toleration but by his own example the discussion can be extended to people of 'different Complexions' (p. 52), so it seems that the principle of the argument could be applied to other groups and not only to religious dissenters.
80. TG2 240.
81. TG2 171.
82. TG2 163.