16. Constitutional Government: Locke's Second Treatise (7-12)

But today we want to begin with Mr. Locke, part two. 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 that I want 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 the, you might say, 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 retelling, or maybe better, rewriting the account of human beginnings that had originally belonged to scripture. He tells the story, doesn't he, 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 in execution 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 a kind of 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 men's uniting into commonwealths 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. Is this okay? Are you with us? Okay. 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 or 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 Marxists 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, yes, who is 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 of 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 work 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? OK, well, you will. Weber, his famous book called The Protestant Ethic and the Spirit of Capitalism, 1904. 1904, great work, classic work. And 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 term, the outgrowth of the Puritan and Calvinist movements of the 16th and 17th century. For Weber, it was the Protestant Reformation that had taken root in the countries of northern Europe and particularly were 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, make, turn into a high moral calling and dignity to 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. And I want to talk, probably not today, but next Monday, on some of the, in many ways, 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, but to which Locke gives, in many ways, much greater pride of place. In chapter eight of the Second Treatise, Locke gives us there, he provides us with a kind of hypothetical reconstruction of the origin of societies, of all societies. He writes at 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 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. Wherein the majority have a right to act and conclude for the rest. That short statement, section 95 of chapter eight, 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-ruled Democrat. He said in that book that Locke's philosophy provides the faith of a majority-ruled 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 of back a while ago. Nobody remembers Wilmar Kendall's book on Locke? You know it. Yes, you were shaking your head. OK, whatever. It's 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 Locke is 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 cross the English Channel and go to the France of Louis XIV of this period, Louis XIV, who famously said, l'etat 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 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. And 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 join, to make one community, as he calls it, however, is not the same thing exactly. It's 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 of forming society. In many ways, he accepts Pope's famous dictum, Alexander Pope's famous dictum. You know, for forms of government, let fools contest. What err 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 as much, is not so important. What is important, and for Locke, about the only thing that is important, is that that form of government received 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 the 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 it's 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 the just powers of government 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 Stephen 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, my ancient faith, no doubt thinking about the Declaration and Jefferson's ideas, 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 Douglass over the issue of slavery. And it, in many ways, cut to the core of the meaning of consent. Douglass also, in some respects, tried to derive his views from an idea of consent. What Douglass 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 or a 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 of tyranny of the majority, just 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 to be misled. They 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 Douglass in his claims about consent. But this question of restraints or limits on what a people can consent to raises a, or 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, are, 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? So you'll be older, but I have never. 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 a doctrine that we hold. Every person, Locke continues, is born free and equal in many ways in this 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 to 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 may be 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. It is to say an actual citizen of a state. Nothing can make any man so but his actually entering into it by positive agreement and express promise and compact. He says at 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 and 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 or 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 naturalization process. Is anyone here a naturalized citizen, as we call it? Has anyone ever been to a naturalization process? No, nobody? Where people go to, you know, it's administered by a judge, and you swear allegiance to the new country. Presumably, you 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. Or tacit, think of Locke's taciturnity. Tacit implies something closed or concealed. How is tacit consent given? That's a problem that 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, whoever, 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's, except in the movies, of course, everybody's always silent. Nobody says anything. So their consent, you might say, 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. How do we know, again, 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 resolved. 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 form of citizenship. And 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 who 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. Locke, to go back and just kind of begin to wrap this up for today. 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. We cannot, in this, I think, in this respect, I think Locke is far closer to Lincoln than he was to Stephen 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. This is, 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. Hobbes, 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. You know, he's an Englishman after all. He writes in section 93, referring to Hobbes, Hobbes, but you'll also see his wonderful animal references. He writes in Hobbes, as 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 pole cats 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 pole cats and foxes. They're noxious creatures, he says, but they're not truly dangerous to you. And when one enters the state of nature, 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, government, a limited government to do this for you. What I want to do, 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 there is, 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, this 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.