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

August 26, 2019


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.

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