By Chan Kei Nin
In this essay, I will explain the tension between our status as free and equal persons and the claims of states to political authority. I will also discuss Locke’s attempt to justify political authority through the idea of consent. I believe that his account fails to resolve this tension convincingly because his ideas of express and tacit consent are problematic. In response, I will present hypothetical consent as a possible solution to the problem, but ultimately reject this solution, concluding that Locke’s political theory is not able to justify political authority through the idea of consent.
Locke claims that in order to properly understand the origins of political authority, we must first understand the State of Nature. This is a state of perfect freedom and equality, governed by the Law of Nature. It can thus be said that man has natural liberty and natural equality. For Locke, natural liberty is men’s freedom to “order their Actions, and dispose of their possessions, and Persons as they think fit” without “depending upon the Will of any other Man”, as long as their actions are within “the bounds of the Law of Nature”. Natural equality means no man naturally has more power than another, because “all the Power and Jurisdiction is reciprocal”, and this, in turn, means that all men are “equal amongst one another without Subordination or Subjection”, so that no one has the natural right to rule over another. The Law of Nature dictates that no man should harm another in his “Life, Health, Liberty, or Possessions”, because being God’s creations, we are not “authorised” to “destroy one another, as if we were made for one another’s uses”. Each man accordingly is “bound to preserve himself” from harm, and as long as his own preservation is not threatened, he is to “preserve the rest of Mankind” as best as he is able to. Thus, every one has the right to punish those who violate the Law of Nature, so as to hinder any violation of the Law, though this punishment must be proportionate to the violation.
It seems that with the Law of Nature as the uniting standard to live by in the State of Nature, it is possible to live an acceptable life even without a state. Why then is there any need for states? Locke claims that firstly, states are needed because there is a need for an Enforcer to execute the Law of Nature and punish offenders for their transgressions. We are not able to do it properly ourselves because our personal bias will likely cause us to punish too much or too little, making the punishment disproportionate to the violation. Secondly, states are needed because there is a need for the Law of Nature to be interpreted more specifically and standardised, and for an impartial referee to settle disputes and administer justice. Lastly, states are needed to allow for ownership of property, as a standardised currency is required in order to grow wealth.
However, no matter how advantageous or beneficial having a state may be, the benefits alone cannot justify the state’s complete political power over persons. Everyone has natural liberty, which means that all men are free to do anything as long as it is within the bounds of the Law of Nature. The state having political power over persons means that the state has power to constrain our actions, which goes against our natural liberty. As for natural equality, if all men are equal and no one is subordinate to another, then the state is able to rule over conflicts with natural equality. Therefore, there is a tension between our status as free and equal persons and the claims of states to political authority.
Locke’s political theory posits that what determines if a state is justified in having political power over people, is whether these persons have consented to the state having such power over them. Without consent, the state is politically illegitimate. Locke claims that given that Men are by nature “all free, equal and independent”, no man can be “put out of this Estate, and subjected to the Political Power of another, without his own consent”. In other words, the state can claim authority over you only if you have voluntarily given your consent to be put in such a situation. Locke appeals to the idea of individual consent as being the only way one can give up natural liberty and be part of civil society; one consents to alienate one’s rights. This civil society, which is formed through the consent of every individual, thus has the “Power to Act as one Body, which is only by the will and determination of the majority.”
This raises the following question: What constitutes a sufficient declaration of consent? Locke claims that only people who have given express consent are to be considered members of their society. This leads to a number of problems, however. The two most pressing problems are what exactly constitutes as express consent, and the practical implications of such a concept of express consent.
If express consent means that one actually has to express out loud that he or she consents to being ruled by the state, then practically speaking it seems that very few people have done this, other than those who change their citizenships and have to declare their status as citizens. Most people are simply born into states, and do not have to provide express consent. If very few people have indeed given express consent, then it seems that only a very small number of people can be said to belong to the society. However, we know that more than just these few people live in the society, and it does not seem plausible that just the consent of these few should legitimise the authority of the state over everyone else. In response to this, Locke suggests that tacit consent also constitutes as a sufficient declaration of one’s consent to be ruled by the state. This means that one is free to leave the state anytime, but as long as one stays to enjoy the benefits of the state, he gives his tacit consent to be ruled by the state and is “obliged to Obedience to the Laws of that Government”.
However, the idea of tacit consent seems problematic because while Locke acknowledges it as a sufficient declaration of consent to legitimize the state’s power and authority, he maintains that tacit consent alone is not enough to make a person a member of civil society. Express consent is still required. If this is the case, then it would appear that a traveller simply passing through a state on a visit would have the same amount of benefits and obligations from the state as a person who was born a citizen of the state but had not had the opportunity to give his express consent to be ruled by the state. Most people would hardly think that this is fair. After all, if I were a born and raised citizen of a state, why should a tourist be able to enjoy the same benefits as me? Likewise, if I were a tourist simply passing through the state on my journey to another location, and the only interaction I have with the state is my use of their highway to get to my destination, then it does not seem fair that I should have to shoulder the same civil obligations to the state (and have to contribute taxes, etc.) as someone who is a full citizen of the state even though he has not given express consent yet. In short, it is problematic that Locke does not acknowledge tacit consent as a sufficient condition to make a person a member of civil society.
In light of this problem, one might suggest at this point that we modify Locke’s theory, so that whoever gives tacit consent to be ruled by the state is also a member of civil society. This idea, however, is not feasible as once again, it does not seem fair that those people who give tacit consent should get to enjoy the same benefits and luxuries as those who give express consent and willingly take on more civil obligations. Moreover, a more fundamental problem is that the definition of tacit consent is such that a travelling motorist simply making use of the state’s highway can be said to be consenting to give up his natural liberty and allowing the state to rule over him. This seems to be a rather dramatic consequence as a result of simply travelling down a highway, one that most people would find intuitively unacceptable. Hence, it seems that it would be problematic to modify Locke’s theory such that whoever gives tacit consent to be ruled by the state is a member of civil society.
If both express consent and tacit consent are problematic, then it seems that Locke’s political theory has been dealt a severe blow, because according to him, it is consent from each individual in civil society that is key to justifying any state’s authority.
A possible way to save Locke’s theory would be to expand our views of what qualifies as a sufficient declaration of consent to be ruled by the state. We can consider a third type of consent, namely, hypothetical consent. Hypothetical consent refers to a situation where consent is implied because if the relevant persons were in a rational position to consent, they would do so. In other words, it would be irrational to not give consent in that situation. For example, if an unconscious accident victim requires life-saving surgery, but has no family to give consent for the surgery, the surgeon goes ahead and performs the surgery on the basis of hypothetical consent, regardless of the fact that he has obtained no actual consent from the relevant parties. This is because if the accident victim were awake and lucid enough, it is assumed that he would consent to having this life-saving surgery performed on him. In the same way, it is assumed that to not consent to having a state is irrational, and so, consent to be ruled by a state is assumed from the individuals that make up civil society, because if they were in a rational position to do so, they would consent.
Hypothetical consent does not face the problems that express consent and tacit consent face, namely that of impracticality and unfairness respectively. It can hardly be said to be impractical because it does not even require actual consent from the people; it simply assumes consent. As for the problem of unfairness, tacit consent works more like an exchange of civil obligations for civil benefits; such a “transaction” leaves room for unfairness because the weighing of civil benefits against civil obligations depends on the specific needs of the individuals, thus they are likely to experience varying ratios of benefits to obligations. Hypothetical consent seems to evade this problem entirely because it simply deals with the rationality of consenting to be ruled by the state. Therefore, if we could accept the fact that no actual consent takes place, then hypothetical consent seems to be a somewhat plausible modification to Locke’s theory, such that consent remains the only way we can give up our natural liberty and thus justify the state’s authority over us.
However, one could say that the idea of hypothetical consent is actually a form of consequentialism disguised as voluntarism. Hypothetical consent arises because it is rational to consent. Why is it rational to consent? One is likely to get some benefit or good out of consenting, whether it is for the self or the society. Given this, are we actually assuming consent for having a state because it is rational to do so, or are we justifying having a state because we will get some benefit or good out of it, which makes it rational to have a state? It seems that consent is redundant in this instance, as ultimately we are justifying having the state simply because it is rational to have a state. Hume seems to concur with this view, as he claims,
“What necessity, therefore, is there to found the duty of allegiance or obedience to magistrates on that of fidelity or a regard to promises, and to suppose, that it is the consent of each individual which subjects him to government, when it appears that both allegiance and fidelity stand precisely on the same foundation, and are both submitted to by mankind, on account of the apparent interests and necessities of human society?” (Hume & Roland, 1748)
In short, we take on civil obligations and obey the law not because we have consented to do so, but because it is in the interest of and necessary for the society. If hypothetical consent is really disguised as such, then it is not coherent with Locke’s theory of consent, and cannot be used as a viable alternative to express and tacit consent.
In conclusion, Locke’s theory of justifying political authority through consent is lacking because he attempts to show that only through consent can the tension between our status as persons with natural liberty and the claims of states to political authority be resolved, but the forms of consent he presents, namely express consent and tacit consent, are problematic both in theory and practical application. Thus, his idea that only through consent can we give up our natural liberty and allow ourselves to be ruled by the state seems questionable.
Locke, J., & Laslett, P. (1988). Locke: Two Treatises of Government Student Edition. Cambridge University Press.
Hume, D., & Roland, J. (1748). Of The Original Contract. Retrieved March 2, 2016, from Constitution Society: http://www.constitution.org/dh/origcont.htm
Peter, Fabienne, “Political Legitimacy”, The Stanford Encyclopedia of Philosophy (Winter 2014 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/win2014/entries/legitimacy/>
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