Dunn, J. - Consent in the Political Theory of John Locke

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Consent in the Political Theory of John Locke

John Dunn

TheHistorical Journal, Vol. 10, No. 2 (1967) ,153-182.

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Th e Historical r our nal , X, z (1967), pp. 153-182

Printed in Great Britain

I . C O N S E N T I N T H E P O L I T I C A L T HE O R Y

O F J O H N L OC KE

BY J O H N DUNN

King's College, Cambridge

IT is widely agreed that the notion of consent plays a central role in the

political theory which Locke sets out in the Two Treatises of Government.

Mr Plamenatz, Mr Gough, Professor Kendall and Professor Waldmann all

discuss the notion as though it were the fulcrum of that theory. It is also widely

assumed that the T w o Treatises of G overnment is a simple abstract of Locke's

formal political reflexion and that it must contain in a readily ascertainable

form all the basic premises of his political reasoning. More pointedly (since

that is the character which works of political theory are supposed properly to

display) it is presumed that it contains both a theory of political obligation and

a theory of how political life both is and should be conducted, a normative

and descriptive theory of the polity. These assumptions do not appear at first

sight very misleading-it might seem that, if true, they would designate

clearly the area to be analysed and, if false, they can readily be seen to be so.But paradigms for the conduct of investigations can do much to determine

the perceived results of the investigati0ns.l The point of this paper is to discuss

a typical misunderstanding which seems to me to derive from an improper

paradigm.

The place of consent within the theory of the Tw o Treatises is simple, if

frequently misunderstood. But government by consent is too much of a

contemporary shibboleth and Locke a historical figure of too much eminence

for the theory to have been left intact in its seventeenth-century context.

'Consent', so the reasoning seems to go, is a necessary condition for politicallegitimacy in the Tw o Treatises. Government by consent is the proper mode of

g~vernment .~ocke was a great liberal philosopher. Hence the Tw o Treatises

of Government must needs advocate government by consent, that is, must

contain a theory of consent as the proper guarantee for governmental legiti-

macy. 'The argument of the Treatise is the government is not legitimate unless

it is carried on with the consent of the governed. But the Treatise says

I am using this notion very vulgarly. For two perceptive examples of the use to which it

can be put in historical investigation see E. H. Gombrich, A rt and Illusion (London, 1960),

and T. S. Kuhn, Th e Stru cture of Scientific Revolutions (Chicago, 1962).

Or, alternatively, some form of it is importantly not the proper mode of government-

cf. Leo Strauss, Natu ral Right and History (Chicago, 1953), p 202-51 and C. B.Macpherson,

T h e Political The ory of Possessive Indiv idua lism (Oxford, 1962).Perhaps also the brilliant, if

wayward, work of Willmoore Kendall, John Locke and the Doctrine of Majo rity-R ule (Urbana,

Illinois 1941. eprinted 1959).



I54 J O H N D U N N

little indeed ab out how governm ent sho uld be organized in order to have the- -conse nt of t he g ~ v e r n e d . ' ~overnment by consent means that the proper

cond uct of government is predicated on t he psychological state of th e governed.

He nce Locke's account of con sent is to be criticized for setting up inadeq uatecriteria for judging the continuing psychological relationship between

governors and governed. But this is not what Locke's theory of consent is

abou t. It is a theory of how individuals become subject t o political obliga-

tions and how legitimate political societies can arise. It is not in any sense

whatsoever a theory of how government should be organized.

T h is paper is intended to give an account of th e place of consent in th e Two

Treatises. T o d o this convincingly, I attempt to do three things.4 Firstly I

claim that what would have been, if he had formally elaborated them,

Locke 's theory of political obligation and his theo ry of th; state are not s et ou tin th e Two Treatises, an d th at his theory of political obligation, in so far as it

can be discerned in his other writings, differs sharply from that assumed by

most criticisms of th e Two Treatises; tha t what this book does in fact contain

is an exposition of certain necessary limitations upon political obligation;

and that we make both a historical and a philosophical mistake when we

suppose that theory is incompatible with the general theory indicated else-

wh ere in his writings. S econdly, I set out a brief o utline of th e argum ent of the

Two Treatises. Thirdly, I examine the precise implications of the notion of

consent used in this work.

Any general theory of political obligation must derive it, at least in part,

from descriptive features of the human social situation. Even a purely

theological theory m ust in clude statemen ts which designate in the descriptive

JohnPlamenatz ,Man and Society (London, 1963), 1,209.Seealso pp. 21 I, 227; butcf. p. 210,

' Locke's Treatise is not concerned to justify any form of government; it is concerned rather to

assert the right of the people to resist their rulers when they are misruled by them.' The

implications of this are hardly grasped in the rest of the account given. Plamenatz's treatment

in M an and Society, I, 209-41, and its development of his criticisms in his Consent, Freedom,

and Political Obligation (Oxford, 1938), esp. pp. 7-8 is (with the exception of some parts ofKendall's book cited in footnote 2 above) the most careful and penetra ting analysis of Locke's

position on consent yet produced (but see also footnote 117 below). Were it not for the

misunderstanding of what Locke's theory of consent was about, it would be most impressive.

For other accounts, which share the misunderstanding, see NI. Waldmann, ' A Note on John

Locke's Theory of Consent', Ethics, LXVIII (i); J. W. Gough, John Locke's Political Philosophy

(Oxford, 1956), ch. III, pp. 46-71; C. B. Macpherson, op, cit. pp. 194-262 and for a more

incidental example C. W. Cassinelli, The Politics of Freedom (Seattle, 1961), pp. 86-101, 177.

An extremely helpful brief t reatment is Raymond Polin, La Politique Morale de John Locke

(Paris, 1960), pp . 209-12.

The conviction such summary presentation could induce is necessarily qualified. I hope

to produce the interpretation sketched here, at greater length, shortly in a full-length study of

the political theory of the Two Treatises. The account of consent given here stands by itself.

The rest of the argument is designed to persuade to the abandonment of certain forms of

commentary on such an account, by questioning the paradigms on which such commentary is

based. (I hope, that is, by showing an element of Locke's thought developing in the context of

his own intellectual preoccupations, to emphasize now hard it is grasp this, if we continue to

pay close attention to our own preoccupations in the same area). It is presented here informally

and schematically, because to present it formally would be to write the book.



CONSENT I N THE POLITIC AL THEORY O F JOHN LOCKE 155

language of th e society concerned th e person or p ersons to whom obedience is

owed. But the general account of the basis of political duty to which Locke

appea rs to have held throu gh ou t his life as a writer has much m ore than suc h

a minimal reference to the society for which it was devised. I t was indeed , asany such general theory must be, a compound of sociological banality and

ethical truism . But m ore imp ortantly, since his ethical theory was at all times

set out in theological terms, political duty was always discussed as a duty to

G od . From th e Treatises on the Civ il Magistrate,"he Essays on the Law of

Na ture6 to th e Two Treatises i t ~ e l f , ~o incidental observations on the basis of

property rights in his notebooks8 and even to th e Reasonableness of C lz~ isti an ity ,~

all political obligations are set in a single dom inating contex t. Th ey are as they

are because of the nature of fallen man, capable of reason but liable to sin,

because of the character of the natural world, and because both of these arethe work of God. Perhaps the simplest and clearest expression of this con-

struction of political du ty ou t of hu m an rationality a nd th e hum an biological

situation comes in a note written in his journal for 15 July 1679 on the law

of nature.1° 'If he finds that god has made him & all other men in a state

John Locke, Tw o Tracts on Government, ed. P. Abrams (Cambridge, 1967)~ p. 172, 201

(231-2). (Cited hereafter as Abrams (ed.) op. cit.)

John Locke, Essays on the Law of Nature, ed. W .Von Leyden (Oxford, ~ g j q ) , sp.

pp. 181-9. (Hereafter cited as Von Leyden (ed.) op. cit.)

John Locke, T w o Treat ises of Go vernment , ed. Peter Laslett (Cambridge, 1964). See esp.2nd Treat ise, para. 77, 11. 1-5 (pp. 336-7). 'God having made Man such a Creature, that, in

his own Judgment, it was not good for him to be alone, put him under strong Obligations of

Necessity, Convenience, and Inclination to drive him into Socie ty , as well as fitted him with

Understanding and Language to continue and enjoy it.' The Abrams, Von Leyden, and Laslett

editions cited in footnotes 5-7 above are all outstanding pieces of editorial work and their

introductions contain major contributions to the analysis of Locke's thought. I should like to

acknowledge a heavy debt to all three, most particularly to Mr Laslett. T his work is cited here-

after as Laslett (ed.), op. cit.

Bodleian Library, MSS. Locke, c.28, fo. 113 v (Homo ante e t post lapsum), and fo. 139,

'Morality '. The Bodleian collection of Locke manuscripts are hereafter cited simply as

'MSS. Locke'.

John Locke, T h e Reasonableness of Christianity. Cited from Th e W orks of John Locke

(7th ed.) (London, 1768), III, 1-99. (Cited hereafter as Reasonableness. Works. vol. etc.)

In this work Locke does not discuss political duties specifically; but the argument that the

acceptance of the Christian revelation renders conveniently otiose the full deduction of the

law of nature has the effect of reducing complex ethical calculations to the moral truisms of an

existing Christian social morality. (There is no full modern edition of T h e Reasonableness.)l0 MSS. Locke f. 3, fos. 201-2. Lex na8. 'God having given man above other creatures of this

habitable part of th e universe a knowledge of himself which the beasts have not, he is thereby

under obligations which the beasts are not, for knowing God to be a wise agent he cannot but

conclude that he has that knowledge and those faculties which he finds in himself above the

other creatures given him for some use and end. If therefore he comprehend the relation

between father and son and find it reasonable that his son whom he hath begot (only in pur-

suance of his pleasure without thinking of his son) and nourished should obey love and

reverence him and be grateful to him, he cannot but find it much more reasonable that he and

every other man should obey and revere (?) ove and thank the author of their being to whom

they owe all that they are. If he finds it reasonable to punish one of his children that injures

another, he cannot but expect the same from God the father of all men when any one injures

another, if he finds it reasonable that his children should assist and help one another and

expects it from them as their duty will he not also by the same reason conclude that God



Is6 J O H N D U N N

wherein they cannot subsist without society & has given them judgement

to discern w hat is capable of preserving & maintaining that society can he b ut

conclude that he is obliged & that god requires him to follow those rules

wh ich conduce to the preserv ing of society. ' Political ob ligation is a conclusion

of reason based on the necessary features of specifically human biological

existence, an elementary theo rem of th e hum an condition.

I t is a mistake to su ppos e that if Lo cke had at any point in his literary life

been asked the simple moral question, 'Why should men obey legitimate

authority in a legitimate political so ciety ?', he would have replied th at they

had consen ted to d o so. Co nse nt may explain th e origins of political legitimacy.

It may indicate how it is that a particular individual at some specific time

becomes liable to particular political obligations. But it is simply not the

reason why Locke thought most men obliged to obey the legitimate exerciseof political authority. T h e notion of consent is deployed in t h e Tw o Treatises

in ord er to exp ound certain limits on th e possible exte nt of political obligation.

Plainly it could not have achieved this exposition plausibly if it were in-

compatible with his general notions of political obligation. But the general

groun d of political obligation is not w hat L ocke was attempting to discuss in

th e Two Treatises and to suppose that h e would have written th e same book if

it had been wh at he was attem pting to discuss is jejune. M ore precisely,

conse nt deno tes the occasion of incu rring political obligations. T o supp ose

that it must therefore constitute the ground of these obligations is to make-th e error of confusing th e occasion of inc urring an obligation with th e general

ground of th e du ty of hono uring it . It is not that t he obligation incurred o n th e

specific occasion is different in kind from t he general obligation; rather that

th e na tur e of th e occasion is defined by th e context of potential obligations. I n

other words, if we are to understand wh at Locke m eant by consent it is vain

to attempt to extrapolate it solely from the subjective characteristics of the

occasion on which consent is given. Co nsent cannot simp ly be understoo d a s

a subjective fact, a fact about the psychology of the individual. It has to be

unde rstood primarily as a legal fact abo ut th e divine order of nature.The argument of the Two Treatises is very simple in outline. ' . . M e n

being all th e W orkm anship of one Om nipoten t, and infinitely wise M ak er ; All

th e Servants of one Sovereign M aster, sent into th e World by his order and

abou t his business, they are his Prop erty, whose Work ma nship they are, ma de

to last during his, not one anothers Pleasure. 'l l Th ey belong to G od a nd

hence they have no right to destroy themselves.12 All their d uties an d respon-

expects the same of all men one to another. If he finds.. . etc'. (Spelling modernized and

contractions restoredaselsewhere in transcribed passages. Emphases as in original as elsewherein quotations.)

l1 Laslett (ed.), op. cit. 2nd Treatise, para. 6, 11. 10-14 (p. 289).

l2 Ibid. 19-22 (p. 289). 'Every one as he is bound topreserve himself, and not qu it his station

wilfully; so by the like reason when his own Preservation comes not in competition, ought he,

as much as he can, topreserve the rest of M an ki nd . . .



sibilities are owed in th e first place to G od and th e duty of self-preservation is

perhaps the most fundamental of these. It is natural to describe it as a right

held against other human beings but it must be understood primarily as a

du ty towards G od . A m an can only transfer to others a right which he himselfpossesses.13 T h e possession of rights is a jural no t an em pirical matter. I t can

mo st easily be elucidated by examining the ethical rules which hold between

m en w ho co nfront each othe r outside any framewo rk of positive law.14 T h e

degree of biological differentiation is not so great as to justify t h e inference th at

any human being has been created for the benefit of another,15 and the

identity of status implied by their common relationship with God precludes

the possibility of such a doctrine. Hence it is only as a result of their own

voluntary actions that men can confer legitimate authority upon other men

(though not all political duties are instances of the rights of authorities todemand obedience; where a political authority has broken its trust and an

individual is threatened, he may be obliged not to resist the authority, even

though the latter has no rights over him, if the effect upon his fellow men

makes such resistance intolerably costly).16 Volun tary action does not, of

course, imply the absence of motive, even of overwhelmingly powerful

motive. No r d oes it imp ly a formal verbal com mitm ent. All that it implies is th e

absence of coercion. C ons ent in thi s fairly clear, though no t behaviourally very

l 3 Laslett (ed.), op. cit. 2nd Treatise, para. 23, 11. 4-9 (p. 302). 'F or a Man, not having thePower of his own Life, cannot, by Compact, or his own Consent, enslave himself to any one,

nor put himself under the Absolute, Arbitrary Power of another, to take away his Life, when

he pleases. No body can give more Power than he has himself; and he that cannot take away

his own Life, cannot give another power over it.'

l4 This relationship, the state of nature, is a convenient abstraction which has numerous

empirical instances; but it is not specified at all in terms of empirical criteria of social simpli-

city or complexity. That it can have instances is dialectically important to Locke since it

excludes most of Filmer's arguments; but the argument itself would remain intact if there had

never been a single instance of an unequivocal state of nature in human history. It is an error

to suppose that it has somehow been vitiated by the researches of Sir Henry Maine and his

successors. It is a theological not a sociological argument. Th at it was ideologically important,

given the legalistic and obsessively historical conventions of English political dispute at the

time and given the level of intellectual competence likely to be displayed by admirers of Sir

Robert Filmer, is obvious enough but in no way affects the status of the argument itself.

l5 Laslett (ed.), op. cit. 2nd Treatise, para. 6, 11. 15-19 (p. 289). ' . . being furnished with

like Faculties, sharing all in one Community of Nature, there cannot be supposed any such

Subordination among us, that may Authorize us to destroy one another, as if we were made for

one anothers uses, as the inferior ranks of Creatures are for ours.'

l6 Laslett (ed.), op. cit. 2nd Treatise, para. 176, 11. 34-40 (p. 404). 'He that troubles his

Neighbour without a Cause, is punished for it by the Justice of the Court he appeals to. And

he that appeals to He ave n, must be sure that he has Right on his side; and a Right too that is

worth the Trouble and Cost of the Appeal, as he will answer at a Tribunal, that cannot be

deceived, and will be sure to retribute to every one according to the Mischiefs he hath

created to his Fellow-Subjects; that is, any part of Mankind.' But cf. para. 208 (p. 422) and

para. 225 (p. 433) where it is merely stated that private individuals will not in fact exercise

such a right when their grievance is not widely shared; not that it would be wrong of them to

do so. What is in question here is simply the point that a right is defeasible by other conflicting

rights; cf. Laslett (ed.), op. cit. 1st Treatise, para. 42 (p. 188) for the possible conflict between

rights based on 'Jus tice ' and those based on 'Charity'. See also my forthcoming article,

'Justice and the Interpretation of Locke's Political Theory' in Political Studies.



I s s J O H N D U N N

precise, sense is a necessary c ondition for th e legitimate autho rity of one m an

over another. But it not a sufficient condition. Men's psychological reach

exceeds their juristic grasp. As biological organism s, their capacity to assent is

not confined to those cases in which th e law of na ture legally empowers the mto do so. Legitimate authority is not co-extensive either with the totality of

legally perm issible moral com mitm ents nor w ith the totality of actual psycho-

logical assents. Ce rtain sor ts of injustice m us t always destroy t h e legitimacy of

political authority, even if those who suffer them are physically coerced or

ideologically befuddled into submitting to them. Locke's theory does not

make consent equivalent to either efficient physical control or successful

conditioning. It s mo st essential element remains a so rt of form al rationality

which no contingent truths of psychology could impugn.

The sole source of legitimate authority (though, as said above, not the

sole basis of political duty) is, then, the rational consent of individuals. What

they can rationally consent to is limited by their own rights. One major

limitation on their own rights to dispose of themselves, the suicide taboo, is

th e basis of the account of necessary limitations o n political au tho rity given in

the Two Treatises.17 Because men cannot kill themselves, they cannot give

to othe rs a righ t to kill them-though they can make it possible for othe rs to

punish them , if they break t h e law of natu re, since this involves no transfer of

righ tsls and is a merely pru den tial calculation. Henc e any act of a legitimate orillegitimate political auth ority which unjustly thre atens th e life of an individual

subject voids th e political rights of the authority.lg I n this way th e Two

Treatises extrapolates the right of resistance t o unjust power from the suicide

taboo. T h is structure of argument is the context in which L ocke's discussion

of consent in the Two Treatises is set.

Besides employing the term 'consent ' elaborately in the Two Treatises,

there are numerous other pieces of writing, published and unpublished, in

which Locke makes use of it in an analytically im portant way. I t would be

possible to exam ine the various contexts in chronological o rd er ; indeed to d oso would have substantial analytical advantages. But any such advantages

would be drastically offset by the inordinate repetition and huge length that

such a method of presentation would demand. Hence, at this point, the

l7 Laslett (ed.), op. cit. 2nd Treatise, paras. 6 , 23 , 56 , 135 , 137 , 149 , 168 , 172 . Also

197-243, etc.

la When men break the law of nature, their jural status collapses and they become liable

to the executive power of the law of nature in the hands of those upon whom they have

legally made war. T h e basis upon which sovereign authorities exercise political power is this

executive power of the law of nature ceded to them by the ir subjects. (See Laslett (ed.), op. cit.

2nd Treatise , paras. 7-1 I etc.)lo I t doesn't, of course, as emphasized in footnote 1 6 above, void all the social du ties of the

subject-his right of resistance in the circumstance is contingent on a reasonably low cost to

others of its exercise. But in so far as his du ty to obey the sovereign could previously be

expressed as a right of the sovereign to exact obedience, it can no longer be so expressed.

Men's duties to God-and hence to their fellow-men-are more demanding than their

duties towards those set in authority over them.



works are merely listed and subsequently they are referred to only in order

to cast l ight on th e role w hich th e notion has in th e T w o Treatises itself.20 I t

will be convenient to begin with an interpretation of M r Plamena tz's; tha t

Locke took consent to mean 'a voluntary act intended by the doer of it togive other people a right they would otherwise no t have'.21 T h is strong sense

of t h e notion m ay well be necessary for th e execution of th e enterprise which

M r Plamenatz attributes to Locke in writing the T w o Treatises. But is i t what

Locke himself m ean t? H e seems, rather, an d in his other writings as muc h as

in the Two Treatises to use the term consent, like assent, for the uncoerced

acceptance in whatever disposition, of a practice, sentiment, or opinion.22

" The texts in question are (in chronological order, except that works published in Locke's

lifetime are given at the date of publication, rather than at the conjectural date of composition):

(I ) English and Latin Tracts on Government. See footnote 5 above. Cited as Abrams (ed.),

op. cit. (2) Latin Essays on the La w of Natu re . See footnote 6 above. Cited as Von Leyden

(ed.), op. cit. (3) English A n Essay col~cerningToleration (1667), printed in H. R. Fox Bourne,

Th e Li fe of John Locke (London, 1876), 1,174-94. Cited hereafter as Toleration Fox Bourne,

op. cit. (4) Notes (n.d. ? 1669-70) on Samuel Parker's A Discourse of Ecclesiastical Politie(1669), MSS. Locke, c. 29, fos. 7-9. Printed in Maurice Cranston, John Locke: A Biography(London, 1957)~ p 131-3. Cited by MSS . ref. (5) Draft A of Locke's Essay, A n E a r l y D ra f t o fLocke's Essay (ed. R. I. Aaron and J . Gibb) (Oxford, 1936)-the draft of 1671. Cited as

Aaron and Gibb (ed.), op. cit. (6) Draft B of Locke's Essay (also 16 71)~ n Essay concernifzg theUnderstanding, Knowledge, Opinio n, and Assent (ed. B . Rand) (Cambridge, Mass. 1931). Cited

hereafter as Rand (ed.), op. cit. (7) The notes 'ExcommunicaE6n' (1673174)~MSS. Locke

c. 27, fos. 29a, b (printed in Peter, Lord King, Th e L i f e o f J ohn Lock e (London, 1830)~1,

108-19. Cited as King , op. cit. (8) The note 'Tolerat io' (1679) in MSS. Locke d. I, fo. 125.Cited by MSS. ref. (9) Locke and James Tyrrell's manuscript treatise in criticism of Edward

Stillingfleet's T h e Mischief of Separatiolz (1680) and T h e Unreasonableness of S epa rati on (1681),

MSS. Locke, c. 34. Cited as Stillingfleet and MSS. ref. T here are problems about the status of

the manuscript which is in the hands of Tyrrell Locke, and Locke's amanuensis, Sylvester

Brownover. It is evident that it was quite literally a joint composition and it seems clear from

the manuscript and from Tyrrell's correspondence (see esp. MSS . Locke, c. 22, fos. 55, 57).

that it must have represented largely Locke's own ideas. (10) Alz Essay concerning HunzanUfzderstanding (ed. J. W .Yolton, London, 1961). Cited as H u m U n d. (11)A Letter concerningTolera t ion , English and Latin texts ed. RII. Montuori (T he Hague, 1963). Cited as Le t To l .(12) Notes on William Sherlock's Th e Case of th e Allegiance due to Soveraign Powers S tat ed an dResolved . . .(London, 1691), MSS. Locke, c. 28, fos. 83-96. Cited as Sherlock notes and

MSS. ref.21 J. Plamenatz, M a n a n d S o c ie ty (London, 1963), I , 227.

22 For an early typology see Von Leyden (ed.), op. cit. p. 160. 'Consensus autem hominum

diversimode considerari potest; primo enim dividi potest in consensum positivum et natura-

lem; positivum eum vocamus qui ex pacto fit, vel tacito,. . .vel expresso. .. See p. 161

n. I , for the continuity of Locke's usage from Latin into English and p. 164 'Secundo

consensus naturalis, in quem scilicet homines feruntur, instinctu quodam naturae sine alicujus

foederis interventu, triplex esse potest: Primo morum sive actionum, ea scilicet convenientia

quae in hominum moribus et communis vitae usu reperitur. Secundo opinionum, quibus

homines varium praebent assensum, aliis firmum et constantem aliis tenuem et instabilem.

Tertio principiorum, quae hujusmodi plane sunt ut facilem a quovis homine mentis suae

compote extorqueant assensum, nec quivis unquam sanus repertus est qui de eorum

veritate intellectis terminis dubitare possit.' Clearly consent in the sense critical to theargument of the Tw o Treatises must be an example of consensuspositivus. But, as such, most of

the critical instances can be assimilated only by something close to a legal fiction. I t is easier

to understand Locke's readiness to employ such a fiction if attention is paid not just to the

objective moral features of the situations in which men live (the central importance of which I

have stressed previously) but also to the degree to which the social psychology of legitimate

political communities was seen by Locke as a series of consensus naturales. Since he saw the



I60 J O H N DUNN

Clearly in behaving in such a manner men need not at all be intending to

proclaim their recognition of a set of duties, still less to create a set of dutie s

for themselves ex nihilo. What is suggested is clearly not that in doing X,

men are intending to do Y; but rather that doing X may be construed asdoing Y. W ha t enables one to construe a n exam ple of one category of actions as

an ex ample of a noth er category of actions in such a case m us t necessarily be a

feature of th e context in which the action is performed, not some peculiarly

su btl e featu re of th e state of m ind of th e agen t at th e time of decision. Plame-

natz criticizes Locke for making duties which are essentially contextual

contingent purely on the psychological states of individuals, and then in

pru den t concern a t th e anarchic implications of so doing, prom ptly rend ering

thi s psychological criterion nugat01-y.23I shall attem pt to argue, in contrast,

that there are no duties in Locke's philosophy (except the duty to worshipGod) which are not largely contextual in their specification; that consent is

crudely behavioural in its form and that no very com plex features of th e min d

of the agent are relevant to its identification. There are complicated philo-

sophical problem s which arise over questions of the sense in which one may

be said to intend th e consequences of one's actions24 nd it might be sup posed

that these arise even more critically over the issue of how one could construe

con sen ting t o som e state of affairs as consen ting to some oth er state of affairs.

But Locke deliberately uses th e notion in such an unspecific m anne r an d for

suc h a limited p urpos e tha t this line of appro ach seems wholly to miss the point.

I n th e Two Treatises men are said to consent to many different states of

affairs and to do so in ma ny different ways. Con sent is said to be present at th e

inception of legitimate polities. It occurs on every occasion at which an

individual by explicit or implicit choice becomes a member of a legitimate

political com mu nity. I t appears whenever a com mu nity chooses its represen ta-

tives in the ma nn er to which it has previously consented and w henever these

representatives vote. It is responsible for the rise of a money economy and

it is an attribu te of every subseq uent mo netary transaction. I t is also displayedby those w ho deliberately (though no t necessarily enthusiastically) participate

in the unjust practices of their rulers. Rather fewer circumstances present

any reliable indication of the absence of consent. Simple coercion is perhaps

th e clearest. Sub mission is just not th e same as consent. Absolute monarchies

also to som e ex tent lack its sanction or at least, mo re unequivocally, such of

them as are of any scale or degree of social sophistication and complexity.

dominant characteristic of most men's actual life as an unreflecting acquiescence, there

seemed nothing very strenuous, morally speaking, in reading the thoughtless acceptance of the

benefits of a practice as an acquiescence in the practice itself. His total lack of respect for thecognitive activities of most men in all social ranks made it simple to ignore the actual ambiva-

lence of many of their attitudes, still more the rationality of such an ambivalence.

23 Plamenatz, Man and Society, 1,209-52; esp. pp. 277-8 (see also Plamenatz, Consent,

Freedom, and Political Obligation pp. 6-8). These criticisms seem precisely to be met by a

consideration of those broader features of Locke's argument here emphasized.

24 See, for example, G. E. M. Anscombe, Intention (Ithaca, N.Y. 1963), esp. pp. 37-49.



Most revealingly of all, those who do not specifically participate in the

immoral actions of their rulers cannot be said to have consented to the

actions. Clearly here an axiom of interpretation is being invoked, rather t ha n a

bet abo ut th e states of min d of the population. T h e criteria needed before onecan be presumed to have done wrong are much more searching than those

needed to establish that one has done right.

T h e Two Treatises of Government was written n ot as a set of instruction s in

how t o institu te legitimate political societies ab initio, bu t as an ab ridgem ent of

a particular tradition of constitutionalist thought. I t was intended to draw o ut

the implications of one conception of an existing political community. It

aimed to restore a previous political health; not to initiate but to revert.25

He nce it is easier to understan d th e force and bearing of its conceptions in th e

context of concrete behaviour which they are designed to explicate. Consent

inside settled political societies appears overtly at thr ee po ints, at t he occasion

on w hich an individual becomes a me mb er of the political comm unity and at

the points at which the community chooses its representatives or these

chosen representatives make laws. There are two sorts of membership in a

political comm unity, temp orary an d perman ent, and two corresponding ways

of incu rring it, tacit and explicit (or express) consen t. Some fo rm of consent is

necessary because of the ' State all M en are naturally in . . th a t is, a S ta te of

perfect Freedom to ord er the ir Actions, and dispose of their Possessions, a ndPersons as they think fit, within the bounds of the Law of Nature, without

asking leave, or depen ding upo n th e Will of any oth er M an. '26 M en can only

consent for themselves; they cannot, for instance, do so for their ~hildren.~'

any mo re than they can sin for their children.28 Bu t to stress, in this way, th e

irreducible necessity of individual consent for the legitimacy of political

25 For the important historical basis of these observations see Laslett (ed.), op. cit. Intro-

duct ion, esp. pp. 44-91. Most clearly and crudely, this poin t is put in the very important

letter which Locke wrote to his friend Edward Clarke on 8 February 1689 on the meetings of

the Convention Parliament, the most illuminating document th at we have available forgauging Locke's attitude to the particular form of the Revolution Settlement. (Th e importance

of this document seems to have escaped previous interpreters of Locke's politics). ' . the

settlement of the nation upon the sure grounds of peace and security is put into their hands,

which can no way so well be done as by restoring our ancient government; the best possible

that ever was, if taken and pu t together all of a piece in its original constitution. If this has not

been invaded men have done very ill to complain, and if it has men must certainly be so wise

by feeling as to know where the frame has been put out of order, or if amiss; and for tha t now

they have an opportunity offered to find remedies, and set up a constitution, that may be

lasting, for the security of civil rights and the liberty and property of all the subjects of the

nation.' Locke and Clarke (ed. Benjamin Rand) (Oxford, 19 27)~ . 289.

26 Laslett (ed.), op. cit. 2nd Treatise, para. 4, 11. 2-6 (p. 287). See also para. 114, 11. 5-11

(pp. 362-3) and para. 119, 11. 1-3 (p. 365) etc.27 Laslett (ed.), op. cit. 2nd Treatise para. 116, 11. 14-19 (p. 364), para. 118, 11. 11-21,

( p 365); para. 193, 11. 1-8 (p. 413), etc.

ZB Reasonableness. Works, 111 , 3, 5. etc, for the interpretation of Adam's original sin and

the insistence tha t it could not simply be said to cause the sins of his descendants (a necessary

condition, here, distinguished f rom a sufficient condition); esp. p. 5, 'every one's sin is

charged upon himself only'.



r 62 J O H N D U N N

authority raises obvious problems.29 F or wh en does any su ch consent take

place? A nd how is it given-? I t is, Locke tho ug ht, t he type bf occasion o n w hich

it is normally given which leads people to ask such question s or, more simply,

to assume erroneously tha t they are naturally subjects.30 T h is is hard lysurprising since it is not a necessary condition f or th e giving of consent th at

there should be any 'Expres sions of it at If a gove rnm ent is legitimate

almost any adu lt behaviou r w ithin th e bound aries of th e country-that is, all

behaviour except emigration-constitutes consent. W hy should this be so ?

T h er e are tw o possible reasons. I t might be th e case that all persons w ho live

in a certain geographical area do in fact share a certain attitude of mind

towards th e political au thorities of su ch an area. But Lo cke plainly does not

believe anything so odd . T h e only oth er possibility is that such a situation in

itself implies certain prima facie duties; that the duties are derived from thecontext and can, at most, be voided by considerations about th e state of m ind

of the subject.

The circumstances in which a man cannot be said to have consented are

confined to those in which he has been coerced. Anyone who voluntarily

derives benefits from an existing political society incurs political obligations

towards it.32T h is is because th e setting u p of a political society is the creation

of a jural space, as well as of a physical protectio n; bo th of wh ich are des igned

to sec ure th e enjoym ent of th e participating individuals and bo th of which, at

th e level of social development reached in seve nteenth-cen tury England , as inmany places, are necessary conditions for the existence of any such security.

I n suc h societies th e lives, liberties a nd properties of th e citizens are guaran teed

by th e legal system as rights and protected by the political system as goods . I t

is as recognized r ights , that is to say, in Loclre's terminology, as 'regu lated by

the laws', that they are in fact protected; and this legal protection of real28 It is perhaps necessary to emphasize that the problems had been raised already inter-

minably by Robert Filmer. (See Patriarcha and other Political Works of Si r Robert Filnzer,

ed. P. Laslett, Oxford, 1949, pp. 81, 82, 189, 217, 218, 224-6, 243, 244, 273, 274. etc.)

30 Laslett (ed.), op. cit. 2nd Treatise, para. I 17 11. 8-13 ' . . thus the Coltseltt of Free-men,

born under Goverwment,which only makes them ~Wembersf it, being given separately in their

turns , as each comes to be of Age, and not in a multitude together; People take no notice of it,

and thinking it not done at all, or not necessary, conclude they are naturally Subjects as they

are Me n' , and see para. I 14,l l. 5-11 (pp. 362-3). Locke himself seems sometimes to condone

such an empirically plausible error; cf. his taking ' countrymen ', 'those who were born in the

same country or tract of ground' as an example of a 'natural relation'. Hum. Und. I, 294,

(Bk. 2 C . 28 S. 2). 31 Laslett (ed.) op. cit. 2nd Treatise, para. 120, 1. 13 (p. 366).

Laslett (ed.) , op. cit. 2nd Treatise, para. 119, 11. 9-22 (pp. 365-6). ' T h e difficulty is,

what ought to be look'd upon as a tacit Consent,and how far it binds, i.e. how far any one shall

be looked on to have consented, and thereby to have submitted to any Government where, he

has made no Expressions of it at all. And to this I say, that every Man , that hath any Possession,

or Enjoyment, of any part of the Dominions of any Government, doth thereby give his tacit

Consent, and is as far forth obliged to Obedience to the Laws of that Government, during

such Enjoyment, as any one under i t; whether this his Possession be of Land , to him and his

Heirs for ever, or a Lodging only for a Week; or whether it be barely travelling freely on

the Highway; and in Effect, it reaches as far as the very being of any one within the Terr itories

of that Government. ' N.B. What is in question is 'how far any one shall be looked to on have

consented. . where he has made no Expressions of it at all' (11. 11-13).



goods in such societies is empirically necessary for their real protection. The

mixture of empirical and ethical considerations is subtle and its exposition is

more than a little muddled by Locke's need, in setting out his notion of the

'state of nature', to defend it against the vulgar and polemically effectiveFilmerian critique of man's natural freedom.33 T o make the situation some-

what clearer it is convenient to consider two recent critical analyses of the

relation of succession to prop erty to this acc ou nt; those of M r Plamen atz

a n d P r o f e s s o r M a c p h e r ~ o n . ~ ~r Plamenatz is struck by the contradiction

between Locke's claim that inheritance of property implies consent to the

political authority of the society in which the property is situated and his

inclusion of the natural right of bequest within the natural right of property.

T h is hiatus is certainly th e fault of L ocke; bu t it is a flaw in his presen tation of

his argument, the inadvertency of his phrasing, rather than a flaw in theargum ent itself. T h e misun derstanding arises in two areas: in th e failure to

take account of the fact that Locke's natural rights are not unitary in their

specification, and in the misapprehension of just how Locke defines the

political relationship.

The situation is as follows: (I) A man institutes a government to protect

his property. (2) T h e gove rnm ent passes laws which regulate th e status of th e

property at all subsequent stages. (3) What the property now is is what the

legal rules specify.35 (F or Locke, as for any othe r ob server, seven teenth-

century English property rights were a highly complex and artificial pheno-

menon, specified by t he law. T hi s did not m ean that they w ere unnatural, in

th e sense of morally improper-though Locke himself certainly tho ug ht tha t

som e exercises of pro perty rights which we re legally impecca ble were morally

wrong-but they certainly were not natural in his eyes in any restricted,

biologically-given, sense. Th a t is just not th e sort of notion which his notorious

'natural right to property' advances.) (4) Hence no man can possess the

property without becoming liable to (sc, in Locke's terminology, 'consenting

to ') the rules. ( 5 ) Hen ce, to accept property implies accepting th e rules whichregulate it as legally valid, accepting the legitimacy of the legal sovereign,

implies in fact political obligation. Plamenatz fails to take account of just

wh at is implied in joining a political society. A member of a political society

accepts all rules mad e by th e society.36W hat a man's p roperty is in th e state of

natu re is wh at he has legitimately accumulated. W hat his prope rty is in th e

33 For the elements of this account see Laslett (ed.), op. cit. 2nd Treatise, paras. gj-IOI

( p p 348-52); para. 108,ll. 1-10 (pp. 357-8); para. 111, 11. 1-17, esp. 11. 4-5 (pp. 360-1); and

esp. paras. 123-7 ( p p 368-70); also, paras. 128-31 (pp . 370-1).

34

Plamenatz, Afan and Soc ie ty ,I ,

226-7.C .

B. Macpherson, T h e Polit ical The ory ofPossessive Individualism (Oxford, 1962), pp. 247-51 (and cf. Alan Ryan, 'Locke and the

Dictatorship of the Bourgeoisie', Political Studies, XIII, no. 2 (June 196j), 219-30; esp. 226-7).

35 See especially Laslett (ed.), op. cit. 2nd Treatise, para. 120, 11. 1-21 (p. 366).

36 This is an exaggeration. There are various exceptions. Rules which command actions

to which the individual does not have the legal authority to consent (under the law of nature);

rules which are not properly arrived at under the constitutio~lof the country; rules which



164 J O H N D U N N

polity is what the laws say it is. (This does not mean that any law which

specifies what his property is (e.g. a law for the expropriation of Jews) is

necessarily binding. But it does mean that nothing which is not so specified

according to t h e legal rules is his property unless th e specifying rule as suc h isillegitimate.) Prop erty right is a legal right in form like any other right. T h is

does not sou nd m uch like th e Locke whom we all know. I nd eed if it were all

that Locke said about property, then clearly the Locke whom we all know

would be a figment of the historical imagination (an exaggeration). But, of

course, it is not. N o express limits are implied logically in th e conception of

laws which th e sovereign m ay pass to regulate property. But all such laws are

subject to invalidation by the higher principle of the law of nature. A law

which had the effect of removing a man's property without his consent3'

would be in breach of th e law of na ture. But s uch a law could in general onlybe produced without a man's consent, if it did not meet the criteria for

positive legality in the society. For what a man consents to in joining a

society is precisely the positive law-making system.3s

However, there are more exacting practical implications to the law of

nature than this suggests.39 T he re m ay be no internal legal groun ds which

make invalid the (formally legal) arbitrary and malicious confiscation of

property;40bu t higher law considerations provide no supp ort for such un just

enactments and it is not clear that the victims would be in any but the

(positive) legal sense ob liged to comply.41T o suppo se that there are (positive)

order the performance of actions which are intrinsically wicked do not oblige subjects. All

statements made in this section of the text are only true ceteris paribu s. The exceptions listed

in this note must always be kept in mind. Political obligation in Locke never involves per seconsent to actions which are in principle wrong.

37 This has a rather technical (i.e. evasive) meaning in Locke which will be examined later.

38 More precisely, what a man consents to is a continuing decision-procedure. Thi s is what

constitutes a political society (see Laslett (ed.), op. cit. 2nd Treatise, para. 95, 11. 4-14 (pp.

348-9); para. 96,ll. 1-17 ( p p 349-jo); para. 97,ll. 1-14 (p. 3 50); para. 98,l l. 1-18 (pp. 3 o-I) ;

para. 99, 11. 1-11 (p. 3 j1 ); para. 134, 11. 11-21 (p. 374) para. 141, 11. 1-16 (pp. 380-1); para.

198, 11.1-11

(pp. 41j-16); para. 212, 11. 16-22 (pp. 425-6) and 11. 29-32 (p. 426); para. 216,11. 1-7 ( p 427); para. 227, 11. 4-18 (p. 434); para. 89, 11. 1-19 (p. 343). I n view of the oddly

vehement and largely irrelevant literature on Locke's attitudes to the rule of the majority,

(see esp. W. Kendall. john Locke and the Doctrine of Majority-Rule (Urbana, Ill. 1959)~t is

worth emphasizing here, that, apart from its role as a piece of political clap-trap in the sections

on non-parliamentary taxation, majority consent only appears in Locke as the minimum

form of decision-procedure constitutive of a political society. It is an error, furthermore, to

suppose that majority-consent is the only form of decision-procedure which is acceptable in

Locke's eyes (seen. 39). Even the will of one man could be acceptable in some circumstances.

See Laslett (ed.), op. cit. 2nd Treatise, para. I 11, 11. 1-9 (pp. 360-1). Or even, in effect, one

which he would ever have much favoured in any political society (seen. 40).

38 See Laslett (ed.), op. cit. 2nd Treat ise, para. 99, 11. I-j (p. 3 ~ ) .

40 It would be an even more egregious error to suppose that he imagined that such a

procedure would guarantee the rightness of the decisions.

41 Note that this might equally well hold even if the enactment was one to which the

sufferers had 'consented ' through their representatives. Locke claims that nothing of the

sort would happen in polities with elective representative governments. He did not claim that

if it did, it would thereby become legitimate. See Laslett (ed.), op. cit. 2nd Treatise, para.

138, 11. 14-21 and para. 142, 11. 10-1 j (pp. 379, 381).



legal reasons wh y a formally valid law can be voided for moral impro priety is a

logical error. T o suppo se that all formally valid laws are morally obligatory is

a moral error. Neither error is made by Locke. Legally correct rules which-arbitrarily deprive anyone of his property are at best dubiously binding.Every man has a primafacie right to inherit property beq ueathed to him and

an a rbitrary legal interference with su ch a right would no t be mo rally binding

on th e injured party. But such prima facia rights in no way exem pt an inheritor

from holding th e property o n precisely th e terms o n which its previous owner

held it . T h e property which the inheritor has a natural right to inherit is what

th e rules specify, a set of rights with c ontingen t duties. T h e rights can to some

extent be voided by th e wrong actions of th e inheritor a nd in th e same way th e

duties can to some extent be voided by th e iniquities of th e authority to w hich

they are owed. But after the initial express consent which establishes thepolitical community has been given, there no longer exists a set of rights

unen cum bered with continge nt duties. I t seems that here too it is a failure to

take full account of the context in which Locke's arguments are set which

leads M r Plamenatz to m isunderstand their bearing and to m istake their

success.

If it is the question of the express consent which initiates political society

that, in this way, misleads M r Plamenatz, it seems to be a misconception of th e

express consent which makes an individual a full member of a society which

misleads Professor Macpherson. He wishes to show that Locke made the

propertyless into subjects of his class state but excluded them from full

mem bership in it.42 I t was, in his opinion, in order to carry o ut this un-

attractive project that Locke developed th e distinction between a tacit and an

express consen t. T h e first category is employed because of th e impossibility

of demonstrating in any other way that the propertyless are subject to the

laws of political society. With careful skill, it assimilates the situation of the

propertyless in their own society, their rights and duties, to those of resident

aliens.43 Bu t does Locke's concept in fact do this ? M acpherso n's claim restssquarely on the proposition that ' the only men who are assumed to in-

corpo rate themselves in any com monw ealth by express compact are those

who have some property, or the expectation of some property in land'.44

But th e only evidence which he cites45 or this interpretation will no t bear t h e

4 2 Macpherson, op. cit. pp. 194-271, esp. pp. 247-j~.

43 Ibid. pp. 249-50.- .. -44 Ibid. p. 249.

45 Laslett (ed.), op. cit. 2nd Treatise, para. 120, 11, 2-11 (p. 366). (Cited by Macpherson,

op. cit. pp. 249-50).' . .

.every Man, when he, at first, incorporates himself into any Common-. .wealth,-he, by his uniting himself thereunto, annexed also, and submits to the Community

those Possessions, which he has, or shall acquire, that do not already belong to any other

Government. For it would be a direct Contradiction, for any one, to enter into Society with

others for the securing and regulating of Property; and yet to suppose his Land, whose

Property is to be regulated by the Laws of the Society, should be exempt from the Jurisdiction

of that Government, to which he himself the Proprietor of the Land, is a Subject.'



I 66 J O H N D U NN

weight p ut u pon it. I n th e passage cited Locke states that any man who makes

himself a subject of political society in order to protect his property submits

this to be regulated by t h e laws of th e society. I t is tru e that he takes land as

th e example of pro perty w ith which to con tinue th e exposition of th e point atissue; an d it seems likely that it was bo th em pirically the case that h e thou gh t

of land as paradigmatic for other forms of real property and dialectically the

case that land fits his argument here more neatly than movable property

(mos t of all, mo ney). B ut by any cano ns of interp retatio n th e fact tha t he takes

land as his example cannot in itself be taken to imply that he thought there

were no other examples. T h e paragraph in question was not intended to give

an exhaustive statement of the motives th at m ight lead m en to join a political

society; it was designed to emphasize that property inside political societies

can only be held subject to the rules of those societies.Fu rthe rm ore , even if M acphe rson's inference was a permissible interpreta-

tion of t he p aragraph itself, it would still not have the implications he suggests.

Fo r th e paragraph considers only th e inception of political society and not th e

circumstances under which men may wish to incorporate themselves in the

existing political societies in which their fam ilies have lived for centuries. T o

supp ose that Locke w ould have considered th e actual nature of their motiva-

tions un der such vastly d ifferent circumstances as identical is absurd. To take

the relationship about which NIacpherson himself has been most emphatic;

the fact that at the inception of political society there would have been noadult who did not own land (or, at least, could not do so if he wished), and

hence no non-land-holding adult would have had reasons to incorporate

himself in to a political society,46 does no t imp ly th at in th e m aturity of

political societies when there are many m en b orn into their society without any

property in land or the probability of acquiring it, such men could have no

reason for incorpo rating themselves in to their society. T h us , once it is noted,

as it is by M acphe rson h imself,47 that 'N o t every prop rietor of land is

necessarily a full m em ber of th e society-foreigners an d even natives who have

not actually incorporated themselves in the society may possess land there',

ther e ceases to b e any reason to accept his conclusion that 'every full mem ber

is assumed to b e a of land'. T h e problem the n returns to where it is

in the text of Locke himself-how is it in fact th at men do incorporate them-

selves in society ; just wh at so rt of a perform ance is an 'express ' or 'explici t'

consen t?

T h er e is no very clear answer to this ques tion and it is a damaging lacuna in

Locke's theory th at the re should be none. A t this point, at best, an account can

46 T h i s argume nt inv o lves ta l ting th e soc io logical fan tasy whi ch Loc l te is here cons truc t ingas ser ious ly as Mac pherson does and accept ing the assum ption ( wh ic h , as sa id above , I d o n o t )tha t one can ex trapola te fr o m Loclre 's phras ing th e precise l imi ts o f h is in ten t ions . W h a t Iwis h to e m phas i z e i s tha t , e v e n i f one ac c ep ts Mac phe rs on 's me thodo log ic a l a s s ump t ions , h i sa r gume n t c annot c ar r y ou t the wo r k w h ic h he a ss igns t o i t.

4' Macpherson , op . c i t . p . 250.



be given of the sort of considerations which make his statements intelligible;

no account of how the statements as they stand are consistent is possible

because as they s tand they d o no t make adequ ate sense. Professor Macp herson 's

attempt to resolve this problem is ingenious but unconvincing, both in the

detail examined above and in the general interpretation of Locke's position

wh ich it involves.48 T h e problem remains th at Locke gives no instances of

what he means by an express consent except that of a landowner previously

in a state of natu re who joins himself to a comm onwealth. Can Locke really

have mea nt tha t th e only political societies in which all ad ult (male) inha bitan ts

were members of the 'Body Politick' were ones which had only just been

established and that the only members of the English 'Body Politick' in

1680were naturalized prop erty-holders ? I t is hard t o believe this. I t is hardly

likely to be an accident that th e example which Locke does give of m en whowere, over a period of time ,'subject to the laws' of a commonwealth, is of

resident aliens.49 I t m ight b e conceivable that he regarded those w ithout

property in England as enjoying a status identical to that of resident aliens;

b u t it is scarcely credible that he shou ld have ex tended this status to himself

or to his patron, the great political magnate, the first Earl of Shaftesbury.

Yet when had these two latter given a 'positive engagement, and express

Promise and C ompact 50 to incorpo rate themselves into the realm of E ng land ?

There are a number of occasions on which certain groups of people in

seventeenth-century England were required to perform actions which couldreasonably be described as giving positive engagements or making express

promises or compacts as mem bers of th e society. T h e most n otable of these

was the requirement to take the oa th of a llegiance and s ~ p r e m a c y . ~ ~uch

48 S e e g e n era ll y th e a rt ic le b y R y a n c i te d i n fo o tn o te 3 4 a b o ve a n d J a c o b V i n e r , P o sse ss i v eInd iv idua l ism as Orig ina l S in ' , Canadian Journal of Economics and Political Science, xx~x ,

n o . 4 (1 9 6 3 ) , 5 4 8-5 9; Ma c p h e rso n ' s re p ly , i b id . p p . 5 5 9 -62 ; a n d re jo in d er b y V i n e r , i b id .pp . 562-6; A ls o , Lasle t t , 'Mar lre t Soc ie ty and Pol it ical T he or y ' . The Historical rour~zal , I I ,

n o . I (1 9 6 4 ) , 1 50 -4 . T h e c e nt ra l e r ro r o f Ma c p h e rso n 's in t erp re ta t ion , n o t p e rh a ps b ro u g h tou t ve ry c learly i n these cr i t iques , seems to ar ise over h is analys is o f c lass d i f fe ren t ia ls i n

ra tional i ty i n Locke ' s t heory . Locke ' s en t ire theor y is based u po n the po ten t ia l ra t iona l i ty o fall a d u l t h u m a n b e in g s a n d , a l th o u g h h e c l e ar ly th o u g h t th a t th e re we re su b s ta n t iv e d i f f e re n t ia l si n ra t iona l i ty , i t i s equa l ly c lear tha t he d id no t th ink these ran a long c lass l ines . I n a ll prac tica lmat ter s , Loclre 's no t ion o f ra t iona li ty was behav ioura l , ' l iv in g accord ing t o the la w o f reaso n ' ,ra ther th an in te l lec tua l is t .

4Q Lasle t t (ed . ) , op . c i t . 2nd Tr ea t ise , para. 1 2 2 , 11. 1-20; e sp . 11. 12-16 ( p . 367 )) ' . . t h u sw e s e e , t h a t Foreigners, b y li v in g a ll t h e ir L iv e s u n d e r a n o th e r Go v e r n m e n t , a n d e n jo y ing t h eP r iv i le d ge s a nd P r o te c ti o n o f i t , t h o u g h t h e y are b o u n d , e v e n i n C o n s c i e n c e, t o s u b m i t t o i t sA d min i s t ra t io n , a s fa r fo r th as a n y De n i s o n ; ye t d o n o t th e re b y c o me t o b e Subjects or Members

of that Commonwealth.'

50 Lasle t t (e d . ) , op . c i t . 2nd Tre a t i se , para. 12 2 , l l . 17-18 ( p . 367) . For Lock e ' s re la t ionsh ipw i t h S h a f t e sb u ry see L a s le t t ( e d . ) , o p . c i t . In t ro d u c t io n , passim. For a c o n v e n ie n t b r i e f

a c c o un t o f h e p ol it ic s o f h e W h ig s d u r in g th e E x c lu s io n cr is is se e J . R . J o n es , The First Whigs( L o n d o n , 1 9 6 1 ).

51 F or so me o f th e o c c as io n s o n wh i c h su c h a n o a th wa s a d min i s t ere d a nd so me id e a o f th e

so rt s o f p e rso ns to w h o m i t wo u ld b e a d min i s t e re d , see e .g . K . Fei l ing , A History of the

Tory Party 1640-1724 (O x f or d , rg zq ) , pp . 262-6 , 284-5, 319-21 and J . R . W e s t e r n, The

English LWilitia in the Eighteenth Century ( L o n d o n , 1 9 6 5 ),pp. 33-4, 83.



I 68 J O H N D U N N

oaths, for the mo st part, seem only to have been imposed u po n public office-

holders but it is clear that any member of the community was in principle

liable to have them adm inistered to h im , if disaffection was prevalent an d if a

mag istrate h ad any reason fo r doub ting his loyalty.52Conceivably, by extension,the oath that a parish constable was required to take at his inception might

have been regarded as a similar positive engagement. However this does not

get us much further. Fo r these oaths are always taken as such by m en who are

already in any comm on sense unde rstanding 'm em ber s of the society'.

T o return to the passage quoted above (footnote 49), resident aliens are

said not to be 'Subjects or Members ' of the commonwealth in which they

live, thoug h 'sub ject to ' t he laws of England , they are not English 'Su bje cts'.

But could it be true that Locke thought the huge mass of propertyless

labourers were n ot E nglish sub jects? O r are there th ree categories involved-Mem bers, Su bjects, and those 'sub ject to th e law s'? W hat would best make

sense of these murky statements and is it likely that Locke believed what

would best m ake sense of th em ? T h e simplest assumption, perhaps, would

be that he thought of all natural-born Englishmen (who did not expressly

decide, at some point close to th e time at which they came of age, to em igrate)

as mem bers of th e society; and th at he tho ug ht of their express consent as a

hypothetical event, like the express consent of th e propertied, as the answer

they would give if asked th e question, 'A re you a n Englishman, a subject of

th e Kin g of E ng land ?'53 Fo r even if th e large property-owner was morelikely to proc laim his me mber ship of th e political society in a definite pu blic

act, through holding a public office like a justiceship of the peace or a lieu-

tenancy of the militia, any adult male Englishman was just as much liable to

have an oath administered t o him, if his con duc t gave reasons for suspicion.54

T o suppose that a suspected supporter of th e Fifth M onarchist Venner who

agreed to take the oath of allegiance would have thereby become a member

of English society, while a rich landowner who had never held public office

had not, is inconceivable. For all Locke's insistence on the explicitness of an

express consent, it seems that what must be important is the disposition

manifested by behaviour, rather than any specific occasion. Men must be

supposed expressly to consent to their nationality, their membership in a

given society, by their settled disposition to identify themselves as such

(those who are not imm igrants are, after all, seldom in do ub t ab out their

nationality). All this seems rather weak; b ut, I fear, th e weakness is Lo cke's

own and cannot readily be amended by substituting an extrinsic strength.

A furth er problem arises over th e natu re of a n express consent. Th os e who

are no t full mem bers of a society are stated to have a natural rig ht of em igra-6 2 See e.g. Feiling, op. cit. pp. 284-5 and Western, op. cit. pp. 33-4.

63 Cf. the example of 'countrymen' as a 'natura l relation' in the Essay concerning HumanUnderstanding (cited in footnote 30 above and Laslett (ed.), op. cit. 2nd Treatise, para. 117,

11. 1-8 (p. 364).

54 Western, op. cit. pp. 33-4.



tion, though not of taking their property with them when they emigrate.55

But this natural right to emigrate does not apply to the members of the

political society.56 I n other words, at th e point at which a ma n becom es a

perfect mem ber of a society he loses the righ t which he previously enjoyed t o

leave it at will. Locke gives no reason for this position-it is a consequence of

th e definition which he gives of mem bers hip in political society-and it seems

not to have any function in the stru cture of t he theory. Th er e is no particular

reason why he would have thought it right to prevent those emigrating who

wished t o d o so, even if t he political society wh ich the y wished to leave was in

itself fully legitimate.57W ha t th e position implies is simply tha t n o one who

accepts voluntarily his membership in a political society can subsequently

claim any right to leave it at will, if the political authorities of the societyobject to his doing so.

On ce a m an is inside political society th e issue of consent arises again only

over the taxation of property. Locke's discussion of property is designed

precisely to remove th e right to it from the historically inconceivable 'express

C om pa ct of a ll t h e C ~ m r n o n e r s ' ~ ~o successfully demolished by Filmer.59

But, if th e origin of property is inde pen den t of consent, its trans fer can only be

mad e by consent. Indeed , th e definition of p roperty is simply that 'without a

M an 's own consent it cannot be taken from him'.60 T h is does not mean , as has

been emphasized above, that a man can hold property in an actual politicalcomm unity without thereby incurring duties. A man has a right to his own

property and he has a 'Right, before any other Man, to inherit, with his

55 Laslett (ed.), op. cit. 2nd Treati se,para. 120, 11. 1-21 (p. 366); para, 121 , 11. 1-9 (p. 367).

Though Locke's phrasing is even vaguer than usual over this issue, it seems (esp. para. 120)

to be his property in land which he cannot take with him-for obvious reasons-and not

property in money or goods. He can sell the land (para. 121, 1. 8) which would presumably

only make sense if he could take the money with him. That is, a man may inherit property

without political obligation but whilst he is actually exploiting it (and hence deriving benefits

from the government of the country within which it is located) he is obliged to obey the laws of

that country. Cf. also para. 118, 11. 1-25 (pp. 364-5).

56 Easlett (ed.), op. cit. 2nd Treatise, para. 121 , 11. I 1-18 (p. 367) ' . . .he, that has once, by

actual Agreement, and any express Declaration, given his Consent to be of any Commonweal, is

perpetually and indispensably obliged to be and remain unalterably a Subject to it, and can

never be again in the liberty of the state of Nature ; unless by any Calamity, the Government,

he was under, comes to be dissolved; or else by some publick Act cuts him off from being any

longer a member of it .' See also para. 122, 11. 6-10 (p. 367).

57 If the society in question were the France of Louis XIV and the intending refugees were

persecuted Huguenots, of course, he regarded their right of emigration as beyond question.

58 Laslett (ed.), op. cit. 2nd Treatise, para. ~ j ,1. 16-19 (p . 304). ' I shall endeavour to

shew, how Men might come to have a property in several parts of that which God gave to

Mankind in common, and tha t without any express Compact of all the Commoners. ' See also

para. zS, 11. 11-24 ( p p 306-7); para. 29 ,l l. I-j (p. 307); para. 32, ll . 4-10 (pp. 308-9).5 9 Filmer, op. cit. pp. 203-4, 248, 266, 273-4.

60 Laslett (ed.), op. cit. 2nd Treatise, para. 193, 1. 9 (p. 413); and see para. 138, 11. 1-17

(pp. 378-9); para. 139, 11. 3-8 (p. 379); para. 140, 11. 6-11 (p. 380); and para. 192, 11. 23-7

(p. 412) ' . . .their due property, which is so to be Proprietors of what they have, that no body

can take away any part of it without their own consent, without which, Men under any

Government are not in the state of Free-men, but are direct Slaves under the Force of War. '

11-2



I?0 J O H N D U N N

Brethren, his Fathers Goods'.61 But the exercise of this right, if a parent has-been a member of a political society, is contingent on accepting the rules of the

society. This is not because there is something imperfect about his right of

inheritance; he does have a right of inheritance before all other men-it isbecause this right (like all other rights in Locke except that of self-preserva-

tion, a right which is also a duty) is a conditional and not an absolute right.62

How is this right of the political society to regulate and articulate the property

rights of individuals compatible with their right to do with it whatever they

wish; how, for instance, is this compatible with the right of the state to raise

taxes? Locke's answer again seems dimly inconsequential. The state as such

has no right to raise taxes.63 No tax can ever legitimately be demanded as a

right by any sovereign; all taxes can only be specific gifts from particular

subjects.

But, naturally, such a position is totally incredible. The puzzle is to be

solved by invoking the constitutional notion of repre~entation.~~en choose

deputies, representatives, to give their consent for them; if the legal structure

of the society is such that there are no facilities for their choosing their

representatives, or if the appointed machinery for choosing their representa-

tives is interfered no tax can have any legitimacy except that conferred

upon it by the individual voluntary acquiescence of the taxed. The duty to

support the expenses of government in due proportion to the benefitsreceived from it is a duty which can be enforced only when it is explicitly

recognized as such by the man who owes it.66 An air of massive bad faith

hangs over this whole area of the argument. For what is necessary, finally, is

Laslett (ed.), op. cit. and Trea tise, para. 190, 11. 1-4 (pp. 411-12).

G 2 Laslett (ed.), op. cit . and Treatise, para. 116, 11. 14-24 (p. 364); esp. ' . .any act of theFath er can no more give a w ay the liberty of the So n , than it can of any body else :He may indeed

annex such Conditions to the Land, he enjoyed as a Subject of any Commonwealth, as may

oblige his Son to be of that Community, if he will enjoy those Possessions which were his

Fathers; because that Estate being his Fathers Property, he may dispose or settle it as he

pleases. '

63 Laslett (ed.), op. cit. 2nd Treatise, para. 138, 11. 1-17 (pp. 378-9); esp. ' . . it is a

mistake to think, that the Supream or Legislative Power of any Commonwealth, can do what it

will, and dispose of the Estates of the Subjects arbitrarily, or take any part of them at pleasure. '

N.B. any part of them ; see also para. 139, 11. 3-8 (p. 379).

O4 This is not a genetic account of how Locke came to use the idea. He used it because it

applied to the particular constitution about which he was writing and because it was intrinsic

to the specific tradition of political language which he employed. I am only here indicating

what function it serves in the theory as presented.

6 5 Laslett (ed.), op. cit. and Treat ise, para. 155, 11. 1-17 ( p p 388-9); para. 216, 11. 1-7

(p. 427); para. 222, 11. 1-62 ( p p 430-2).

G6 Laslett (ed.), op. cit. 2nd Treatise, para. 140, 11. 1-1 I (p. 380). 'Tis true, Governments

cannot be supported without great Charge, and 'tis fit every one who enjoys his share of theProtection, should pay out of his Estate his proportion for the maintenance of it. But still it

must be with his own Consent, i.e. the Consent of the Majority, giving it either by themselves,

or their Representatives chosen by them. For if any one shall claim Power to lay and levy

Taxes on the People, by his own Authority, and without such consent of the People, he

thereby invades the Fundamental Law of Property, and subverts the end of Government. For

what property have I in that which another may by right take, when he pleases to himself?'



not the (inconceivable) consent of each individual but the consent of the

majority given by th eir represe ntatives (see footno te 66 above), as conve niently

alleged to exist in the proper practice of the English constitution and as

unde niably ritualized in English political rhetoric for decades. But why shou ldthe consent of the majority suffice? The obvious suggestion, that this is the

m ini m um decision-proced ure constitutive of political society,67 th at i t is

what a man consents to in becoming a member of a political society at all,

will hardly suffice. For, if a past consent is adequate to ensure obligation, an

absolute monarchy created by the consent of its members would have

arbitrary p ower over the prope rty of its subjects.68 I t seems unlikely tha t

Locke me ant this. I t cannot be because it does constitute in act th e agreement

of all individuals tha t Loc ke takes th e consent of th e majority as its equivalent.

T h e r e is an extraordinary elision between the consent of each property-holder a nd th e consent of th e majority69of th e representatives of th e majority

of th e property-ho lders, as chosen according t o th e English franchise in the

late seventeenth century. It seems implausible that Locke was altogether

unaware of any su ch elision. W hy shou ld he have m ade it and how can it make

sense ?Firstly; i t mu st again be emphasized that th e T w o Treatises of Government

is a very specifically directed book. Causally, the reason why Locke does not

consider the possibility of the oppression of a minority by a majority, and

hence does not den ounc e it, is simply that it is not relevant to the issue aboutwhich he is writing. W ha t he is attacking is th e exploitation of a huge m ajority

by a small minority. Had there been operative French representative in-

stitutions, he would not have regarded the confiscation of the property of the

Huguenots on account of their religious beliefs as being in any way less

arbitrary because it was carried out as a result of the votes of the Estates,

representing the enthusiastic consent of th e majority of the F ren ch p opu lation.

H e uses the cant of English constitutionalism in this insouqiant (not to say

careless) manner, not because it guarantees an administration of spotless

purity but because he considers one particular theory of the English con-

stitution as likely to provide better administration than others. What is in

question is not Utopia but the most desirable political arrangements that

Shaftesbury or William I11 migh t reasonably aspire to bring abou t. T o

attem pt to extrapolate the Lockean Utopia from such unprom ising materials is

a sterile exercise and the results, by necessity, faintly ludicrous.

6 7 See footnote 37 above. Laslett (ed.), op. cit. and Treatise, paras. 96-9 (pp. 349-51).

6 8 Or, if it did not have 'arbi tra ry' power, then neither would a majority of the members of

a community have 'arbitrary' power over the property of the minority (see below). Majority-

consent is a minimum necessary condition for being in a political society at all, whereas

absolute monarchy based on consent is a particular form of a political society. But if what is in

question is the threat to property, one's presumed reason for entering political society at all,

it is obscure why this should make any difference.

6 g Sic.Taxes were voted in Parliament. Cf. Laslett (ed.), op. cit. 2nd Treatise, para. 96,

11. 12-17 (p. 350).



I 7 2 J O H N D U N N

But why should the ' consent of the majority' have this favoured pragmatic

status? At the formal level no suggestions are even ofiered-it seems an

uneasy amalgam of the arguments for majority-consent as a minimum

decision-procedure and of the a priori equality in moral rectitude or turpitudeof all men, a simple axiom, ceteris paribus, more rather than less. This seems

unexceptionable and useless-but then it is not how it is used. I t is where it is

used that its plausibility and its pragmatic quality are most readily seen. For it

is not any set of representatives or deputies which can be trusted in this way to

further the interests of those whom they represent.?O Most governmental

bodies are always liable to think of themselves as having distinct interests and

to behave accordingly. They are all too frequently disposed to make inroads

on the property of the subjects for their own benefit and without any justifica-

tion.71 However, 'This is not much to be fear'd in Governments where theLegislative consists, wholly or in part, in Assemblies which are variable,

whose Members upon the Dissolution of the Assembly, are Subjects under

the common Laws of their Country, equally with the rest'.72 Men remain- - -sinful. Government remains imperfect. In governments with elective assem-

blies like the English, arbitrary expropriation of property is less to be feared

than it is in other governments which lack this incomparable advantage.

Absolute power may normally be an acceptable form of political authority, if it

is in practice confined to the requirements of military defence or within social

structures as simple as the patriarchal family. But the appropriation of

property, unlike military leadership, needs more persistent referenda, if it is

to be prevented from arbitrary exercise. It is the combination of temptation

with opportunity which makes a sovereign's right to tax without the 'consent'

of his subjects into such a dangerous threat. A particular institution generates

the dangers; these are best alleviated by another institution. In an absolute

monarchy any tax ever levied derives whatever legitimacy it has solely from

the individual psychological attitude of each taxed subject at the particular

point in time at which he is taxed. I n a Parliamentary government like England'sthere is a definite decision-procedure which if it is operated without chicanery

guarantees the consent of the majority of the taxed.73We do not know whether

Locke thought that this was the best conceivable political system. What we

do know is that is an institution and not a generator of autonomous moral

' See Laslett (ed.), op. cit. 2nd Treatise, para. 88, 11. 8-18 (pp. 342-3 and below). Indeed

the status of representative is contingent on the due exercise of its functions; see para. 151,

11. 15-26 (p. 386).

71 Laslett (ed.), op. cit. and Treat ise, para. 138, 11. 21-31 (p. 379); para. 143, 11. 7-15

( P 382).72 Laslett (ed.), op, cit. 2nd Trea tise, para. 138, 11. 17-21 (p. 379) see also para. 143, 11.

15-23 (p. 382); para. 142, 11. 10-15 (p. 381).

7 3 Or, perhaps more precisely, the consent of those who pay the larger part of the tax.

(Laslett (ed.), op. cit. and Treati se, para. 158, 11. 4-9, p. 391. N.B. it is taxation for which the

Parliamentary safeguard is considered desirable. T he responsibility for the interests of those

who are too poor to pay taxes might rest more directly on the autonomous executive than on aParliament elected by a property-based franchise.)



CONSENT I N THE POL ITICAL THEORY OF JO HN LOCKE 173

values. I n the last resort th e criterion for t h e just exercise of i t s powers, too,

is the axiom: 'the power of the Society, or Legislative constituted by them,

can never be suppos'd to extend farther than the comm on goo d; bu t is oblig'd

to secure every ones Property .. . 74

T h e moral authori ty of all institutionsis restricted by the maxim of rational choice.75

Consent, then, inside political societies is both the mode in which in-

dividuals acquire their political ob ligations and th e institutional precon dition

for each m an to feel a reasonable security in his own possessions. B ut it is also

what creates political society in the first place and this may well seem more

peculiar. It is not very remarkable to base a political theory on the fact that

men do to some extent recognize the legitimacy of the societies in which they

live. It is harder to see how such a recognition could precede in time the

social matrix from which it derives. Here , surely, we have n ot only historicalfantasy but logical error. But do we? Consent is an axiomatic precondition

for the legitimacy of any political authority because men are naturally equal

in their status as th e property of But th e crucial term here is legitimacy,

not precondition. For it is a precondition not for the existence of any society

whatsoever but for the existence of a society with an authority which has a

right to t he obedience of its me mb ers. E ocke show s a great, and a justified,

impa tience with th e q uestion of t h e historical authen tication of consent as the

basis of primitive governm ent, not because he did n ot know mo re than Filmer

about primitive government77but because his argument is in no way con-tingent on th e historical questions of how primitive g overn men ts did begin.

All that is necessary for his arg um ent, except in s o far as its efficacy simply as

propaganda is c ~ n c e r n e d , ~ ~s that there should be some instances of men

7%a ~l et t (ed.), op. cit. 2nd Treatise, para. 131, 11. 8-10 (p. 371).

75 Laslett (ed.), op. cit. and Treatise, para. 131, 11. 6-8 (p. 371) ( 'For no rational Creature

can be supposed to change his condition with an intention to be worse') and para. 164, 11.

1-2 (p. 395) etc.

76 Laslett (ed.), op. cit. 2nd Treatise, para. 15, 11. 13-16 (p. 296); para. 22, 11. 1-8 (p. 301);

para. 95, 11. 1-14 ( p p 348-9); para. 171, 11. 12-25 (p. 400); para. 175, 11. 1-13 (pp. 402-3);

para. 176, ll . 28-31 (p. 404); para. 198,l l. 1-19 (pp . 415-16); para. 212 ,ll . 16-22 (pp . 425-6);

para. 192, 11. 1-27 (p. 412); and references cited in footnote 17 above.

7 7 He was in fact one of the best informed students in the Europe of his time of variations

in the moral, social, political, and religious practices of non-European countries a fact which

has led Laslett to observe that he 'may be said to have done more than anyone else to found

the study of comparative anthropology' (Laslett (ed.), op. cit. p. 98 n.). Certainly he played a

major role in the planning and assembling of material for the fine collection produced by his

publisher John Churchill, in four folio volumes, in 1704, (A Collection of Voyages&f Travels in

4 Volumes London, 1704). For the extent of his interests see: G. Bonno, ' Les Relations Intel-

lectuelles de Locke avec la France ', University of California Publications in Modern Philology,

XXXVIII , no. 2 (Berkeley, 19 55)~ 7-264 (especially on Thkvenot and Bernier); John Locke's

Travels in France 1675-9, ed. John Lough (Cambridge, 1953); Correspondence in the

Bodleian; Notebooks in the Bodleian; Journals in the Bodleian and British Museum (Add.MSS. 15642); Notes to Essays on the Law of Nature, ed. Von Leyden; Essay concerning Human

Understanding, etc. For the works contained in his library see John Harrison and Peter

Laslett, The Library of John Locke (Oxford, 1965). The total bulk is extremely impressive. Iemphasize its existence to show how extended is the context in which Locke elaborates his

'political rationalism'. 78 See footnote 14 above.



I74 J O H N D U N N

confronting each other in 'a state of nature', that is, outside any shared

structure of positive law. (Strictly speaking not even this degree of evidence

is necessary to the argument; but its expository cogency is undoubtedly

much strengthened by it.) To establish this, the Swiss and Indian in the~.

woods of are quite sufficient. The perfunctory pre-history of

government which is from time to time invoked adds nothing to the theory

and lends to it a degree of historical contingency which it clearly did not have

in Locke's mind. The whole account is correspondingly obscure. There seem

to be two historically substantial stages, an authentically primitive one and an

advanced constitutional one; and the confusion seems to derive from the

attempt to conflate the two. The first stage, patriarchal monarchy and military

leadership in war time, is discussed as an example of political authority

based upon consent; while at the same time it is clearly recognized to bedevoid of 'known standing laws '.80Advanced political societies, like England,

are (when their constitutional proprieties are not being infringed by the

iniquities of their governors) characterized by 'known settled laws' and by a

legislative process which is at least to a significant extent controlled by elected

'deputies' of 'the People'. If government normally begins as r n o n a r ~ h y , ~ ~

and if to change the legislative is to set up a new government, there must have

been some occasion in the past at which each advanced society acquired its

governmental form. One may conjecture that this occasion normally resulted

from previous injustice, either on the part of an incumbent monarchs2 or onthe part of an alien conqueror.83 In either case there must have been some

definite occasion on which the people, either in person or acting through

elected representative^,^^ voluntarily recognized the legitimacy of their

government 85

Laslett (ed.) , op. cit. 2nd Treatise, para. 14, 11. 12-17 (p. 295).

so Laslett (ed.), op. cit. 2nd Treatise, para. 75, 11. 1-5 (p. 335); para. 76, 11. 1-2 (p. 336);

paras . 105-12 (pp. 354-62); and 1st Treati se, paras. 130-2 (pp. 254-6); para. 153 (p. 272).

Also A Second Letter concerning Toleration, FVorks, 11 , 423 ; and A Thi rd Letter for TolerationW o r k s , 11 , 488. M S S . Locke, c. 33. fo. 11'mis-cited by Laslett (ed.) , op. cit. p. 356 n.

s1 Laslett (ed.), op. cit, and Treat ise, para. 105, ll. 1-3 (p. 354); para. 106, ll. 1-8 (p. 355).

s z Laslett (ed.), op. cit. 2nd Treatise, para. 107 (pp. 356-7); paras. 110-11 ( p p 359-61);

para. 162 (p. 394); and for its application to the history of England, paras. 165-6 (pp. 395-6).

83 Laslett (ed.), op. cit. 2nd Trea tise, para. 175, 11. 9-13 (p. 403); 'Conques t is as far from

setting up any Government, as demolishing an House is from building a new one in the place.

Indeed it often makes way for a new Frame of a Common-wealth, by destroying the former;

bu t, without the Consent of the people, can never erect a new one.'

s4 How their representatives would have to be chosen to be considered as authentically

representing them (that is, the nature of the franchise which would be necessary) is not a

subject th at Locke ever discusses at all clearly. I n an existing political society, the problem is

avoided by the consideration that the franchise is a part of the constitution (i.e. in itself

something which the people have consented to) (Laslett (ed.), op. cit. and Treatise, para.

158, ll . 3-16, and 35-9 (pp. 391-2). A maxim of fairness is necessarily involved (11. 36-7) but

what would constitute fairness is almost wholly obscure, outside a settled political society

(except that for purposes of assessing taxation, representation according to potential tax

burden appears to be recommended (ibid. 7-9)).

Laslett (ed.), op. ci t. 2nd Treati se, para. 192, 11. 17-25 (p. 412). ' . no Government can

have a right to obedience from a people who have not freely consented to it; which they can



I t is clear what sort of occasion in English constitutional mythology is

being invoked here, though whether Locke thought of it as a specific historical

occasion or the authentic 'Ancient Constitution' itself,86 is obscure. I t is

equally clear what sort of circumstances could not be considered as instancesof the institution of governments by consent. Conquest was one of the favoured

accounts for the origins of the English constitution (favoured, for obvious

reasons, only by those who wished to give an absolutist interpretation of that

constitution). Though, in its historiographical form, the Norman Yoke, it

hardly enters the purview of Locke's argument as this survives, in the less

historically contingent form of unrecorded past usurpation, it is a frequent

theme of Filmer's (as of Hobbes's and most other absolutist theorists of the

period). Indeed it played the role of an absolutist historico-legal fiction in a

manner closely analogous to the Whig historico-legal fiction of the contract.

The rejection of conquest as a basis for political legitimacy, and the distinction

between consent and submission by which this rejection is carried out, are

the most unequivocal indications of what sort of purchase his notion of

consent was intended to have upon concrete social situations. It is thus

far from surprising that the only piece of writing after the publication of the

Two Treatises itself which indicates a renewal of Locke's interests in the

problem of the grounds of political duties should focus upon the issue of the

legitimacy of a usurping regime. In the notes which he wrote out on William

Sherlock's Case of Allegiance he confronted a theory even more crudely

Panglossian than that of Filmer.87

Sherlock maintained that all social events of any complexity are a dis-

pensation of divine providence, their causation a result of the subtle deflec-

tions by the deity of men's corrupt motives. T o Locke, this seemed abject

superstition in general and morally corrupt in particular. T o assert, as

never be supposed to do, till either they are put in a full state of Liberty to chuse their Govern-

ment and Governors, or at least till they have such standing Laws, to which they have by

themselves or their Representatives, given their free consent, and also till they are allowedtheir due property, which is so to be Proprietors of what they have, that nobody can take away

any part of it without their own consent', and see para. 176, 11. 26-31 (p. 404); para. 198, 11.

11-19 (p. 416).

See John Pocock, The Ancient Constitution and the Feudal Law (Cambridge, 1957);

also J. W. Gough, Fundamental Law in English Constitutional History (Oxford, 1955);

David Douglas, English Scholars 1660-1740 (London, 195 I) ; Christopher Hill, Puritanism

and Revolution (c. 3 'T he Norman Yoke') (London, 1958). S. Kliger, The Goths in England

(Cambridge, Mass. 1952) and an important article by Quentin Skinner, 'History and Ideology

in the English Revolution,' Historical Journal, VIII,no. 2 (1965), 151-78, for the nature of the

disputes about the historicity of the' Ancient Constitution'. Locke himself seems always to have

shown a judicious lack of interest in the details of the dispute-unless, that is, the missing

portion of the Two Treatises contained such material, a hypothesis for which there is really noevidence; but his letter to Edward Clarke (cited in footnote 25 above) suggests that it is the

authentic 'ancient constitution' that he has in mind.

87 Sherlock notes, MSS. Locke, c. 28, fos. 83-96 (see footnote 30 above). No very searching

trea tment of Sherlock exists but see Gerald. M . Straka, 'T he Final Phase of Divine Right

Theory in England, 1688-I~OZ', nglish Historical Review (1962), pp. 638-58; and more

extendedly in his The Anglican Reaction to the Revolution of I 688 (Madison, Wisconsin, I 962).



1 7 ~ J O H N D U N N

Sherlock did,ss that ' T h e Revolutions of Governm ents are not the Subjects

Duty, but God's Prerogative' was simply grotesque. Furthermore, i t made

right a simple fun ction of po wer. I t meant th at m ajorities, even rebellious

majorities, mu st axiomatically b e in th e right.89Above all it destroyed th e verynotion of legitimacy and reduced to nullity any tolerable definition of the

p o l i t i c a l r e l a t i o n ~ h i p . ~ ~t assimilated submission wholly to consent. But a

general submission is no t th e same as a general consent.g1 I t may often serve

as an indicator of suc h a con sen t; bu t i n itself it does not con stitute consent at

all. Neither particular verbal performances nor coerced behavioural ac-

quiescence suffice. W ha t is necessary is choice.92T h e G reek Chris tians, hence,

have a continuing right of resistance to their Turkish masters. They have

never chosen the framework of government under which they live; and they

are treated by their rulers in a manner which could only be permissible ifthey were 'slaves under the force of war', a situation which cannot even in

princ ip le la st beyond a s ingle g e n e r a t i ~ n . ~ ~hat makes th e critical difference

is the absence of com pulsion an d t he existence of choice.94 Of the se two , it is

th e absence of com pulsion which comes closest to being a simple behavioural

criterion. Choice is not seen as a particular historical event in th e min d of th e

subject. Rather, the absence of compulsion is a necessary condition for the

existence of choice. C ertain behaviour in a particu lar context implies choice.95

Bu t if th e behaviour is caused by external force, then it does not im p ly choice.

T h is is certainly no t a trivial criterion-it is because th e 'noise of W ar . . .makes so great a part of the History of Mankind' that men have made the

error of mistaking the force of arms, for the consent of the Pe0ple.~6 t is

Sherloclr, op. cit. p. 43.

89 Sherlock notes, MSS. Locke, c. 28, fo. 92'. ' I f rebels be the minority they may be

fought against, if the majority they are our country and must no t be fought against.' Cf. the

discussion on the status of majority-consent above, footnotes 38 and 68 esp.

Sherlock notes, MSS . Locke, c. 28, fos. 83-96 passim and esp. the comment on Sherlock's

claim that the 'se ttlement' of a government gave it political authority (fo. 96'). 'How long a

month a year.-or an hundred & by what rule what law of God. Long and short in such

cases unless defined have no meaning people submit where they do not resist so that wherethere is no resistance there is a general submission, but there may be a general submission

without a general consent which is an other thing .' Cf. Plamenatz, Consent, Freedom, and

Political Obligation,p. 7, etc.

Q1 See Sherlock notes MSS . Locke, c. 28 fo. 96' c ited in footnote 90 above.

9 2 Laslett (ed.), op. cit. 2nd Trea tise, para. 189,l l. 5-12 (p. 411). ' . . .th e Absolute Power of

the Conquerour reaches no farther than the Persons of the Men, that were subdued by him,

and dies with th em; and should he govern them as Slaves, subjected to his Absolute, Arbitrary

Power, he has no such Right of Dominion over their Children. He can have no Power over them,

but by their own consent, whatever he may drive them to say, or do; and he has no lawful

Authority, whilst Force, and not Choice, compels them to submission.' And see para. 186, 11.

1-22 (pp. 410-11).

Q3 Laslett (ed.), op. cit. 2nd Treatise, para. 179~11. -8 (p. 406); para. 186, 11. 1-22 (pp. 410-

11); para. 189,ll. 2-12 (p. 411); para. 192, 11. 1-27 (p. 412); para. 176, 11. 26-31 (p. 404).

94 Laslett (ed.), op. cit. and Treatise, para. 189,ll. 11-12 (p.411) ;para. 186,ll.r-22 (pp.410-

11); para. 192, 11. 1-14, and 11. 19-22 (p. 412).

95 This is plainly not a philosophical analysis of what it is to choose; simply a substantive

moral rule about what may be counted by others as a choice.

Q6 Laslett (ed.), op. cit. para. 175, 11. 1-13, pp. 402-3.



precisely the hideous preponderance of force in human history and the

sycophantic ideologies which this has generated, which it is the purpose of

Locke's political theory to confront and to expose.

But the confrontation is not achieved by turning the entire weight of thelegitimate social order upon the shifting consciousnesses of individuals at

arbitrarily selected points in time. Such a conception would indeed be

democratic, not to say anarchic; and, if Locke were to predicate such a claim

of the English political community in his day, he could have done so only in

the most radical bad faith. The legitimacy of the polity could no more be

solely a construct out of such psychological contingency than the moral order

itself. T h e exaggeratedly individualist and voluntarist character of su ch a

theory would &rive every existing polity of its legitimacy. T o follow why

Eocke did not see it as having this result, it is necessary to understand thestru ctur e of ideas within wh ich it is to be interpreted. T o see why it is that

Locke should have adopted so early and held with such little strain the

queasy historical fiction that governm ents have originated from th e consent of

th e people,97 t is necessary to take note of th e assumed sociology which un der -

lies his argu me nt and th e criteria for rational choice an d legal authority which

are embed ded in it. T h e mo st central assump tion of his political thebry, th e

irrelevance of history, w as not a n easy them e to bring to bear on th e relentless

legalism of English political discourse in th e seventeen th century. Ind eed , it

was such a difficult task to do so that m uch of o ur ow n critical literature o n

Locke has significantly failed to grasp it. T h e strenuous attem pt by Professor

Richard Cox, for instance, to decode the true meaning of the Lockean

doctrine from th e 'rea l' empirical character of the 'sta te of natu re' is only th e

most single-minded of such enterprise^.^^ T o a greater o r lesser extent this

97 Abrams (ed.), op. cit. pp. 124, 125, 126, 128, 129, 130, 138, 150, 172, 200-1 (230-1).

These references seem all to be hypothetical, though cf. Abrams (ed.), op. cit. pp. 25-27> 75,

76, 78 (and esp. deleted passage at p. 172), for the claim that the hypothesis is essential to

the form of Locke's argument. Toleration ( 1 6 6 7 ) , Fox Bourne, op. cit. I , 175, 177. Notes on

Parker,MSS. Locke, c. 29, fo. 7 (Cranston,op. cit.pp. 132-3). Excommunicdcon, in King, op. cit.11, rog.Toleratio,MSS. Locke, d. I, fo. 125Stillingfleet, MSS. Locke, c. 34,fos. 113,114, 115,

116, 118, 121. A Letter concerning Toleration (ed. Montuori), pp. 17, 23, 25. T W OTreatises,Sherlock notes. Additional Letters on Toleration, etc. Apart from the first three works cited,

consent as the origin of government is not argued for in these references but simply assumed.

Richard H. Cox, Locke on W a r and Peace (Oxford, 1960), chs. I and 11 esp. For an

example of the odd forms of argument employed, see pp. 42-4 on Palantus and the foundation

of Tarentum (cf. Laslett (ed.), op. cit. 2nd Treat ise, para. 103, 11. 1-4 (p. 353), where Locke

claims that the foundation of Tarentum by Spartan exiles constitutes an example of men

setting up a political authority over themselves by their own consent, and after they had

previously been independent of one another (i.e. in a 'state of nature' ; loc. cit. 11. 5-6)).

Cox's own description makes clear that the Spartans were voluntary emigrants from a

political society to an area in which the authority of that society did not hold. Hence they wereindep ende nt one of another (loc. cit. 1. 3), that is to say none had any prim a facie right of authority

over another except as a result of the voluntary consent of the other. Th is is a simple paradigm

case of Locke's argument about the derivation of authority. Cox's energetic manoeuvres

around the passage are completely beside the point. (For a general critique of the defects in

Cox's lines of argument, see J. W. Yolton. 'Locke on the Law of Nature,' PhilosophicalR ev i ew , October 1958.)



1 7 ~ J O H N D U N N

misunderstanding seems still to colour most of our interpretations. In the

remainder of this paper, I shall argue that it is the continuity of reason and

the general human propensity to accept even minimally legitimate hierarchies

of authority which best define Locke's theory and which lead him to hischaracteristic insougiance before the contingencies of history. Finally, I shall

attempt a brief and somewhat more formal summary of the nature of his

conception of consent.

he role of reason in the definition of the contours of consent alters to

some extent from one stage of social development to another. Initially,

whatever a man ' actually consents to' is licit,99unless it is in itself something

which he does not have the authority to consent to-i.e. it is in itself an action

which it could never be licit for him to perform.loOThereafter, whatever a

man has acted in such a way as to make himself responsible for, he may besaid to have consented to, and reason enters the relationship only as the

criterion of what sort of action constitutes making himself responsible for

what other sort of action. Reason implies, for instance, that the legitimate

exercise of any authority must be limited to the pursuit of the ends which the

authority may be held to serve. These ends are known by a process of rational

enquiry (in principle), by knowledge of the law of nature.lo1 A more specific

instance of this position is that the authority derived by a political society from

the consent of its subjects is limited to acts which it is in the general interest of

the subjects to empower.lo2 Still more restrictively, where the actions of the

political authorities, even in a perfectly legitimate polity, are in themselves

vicious, the subjects cannot be held responsible for them unless they have

directly expedited them.lo3On the other hand, particular exercises of authority

Q9 Laslett (ed.),op.cit. 2nd Treatise, para. 97,ll. 8-14 (p.350): 'For what appearance w-ould

there be of any Compact? What new Engagement if he were no farther tied by any Decrees of

the Society, than he himself thought fit, and did actually consent to? This would be still as

great a liberty as he himself had before his Compact, or any one else in the State of Nature

hath, who may submit himself and consent to any acts of it if he thinks fit.'

loo See footnotes 13 and 17 above.lol Laslett (ed.), op. cit. and Treatise, para. 222, 11. 40-6 (p. 431): 'F or the People having

reserved to themselves the Choice of their Representatives, as the Fence to their Properties,

could do it for no other end, but that they might always be freely chosen and so chosen, freely

act and advise, as the necessity of the Commonwealth, and the publick Good should, upon

examination, and mature debate, be judged to require.' See also para. 17, 11. 4-16 (p. 297);

para. 139, 11. 9-11 (p. 379): ' . . even absolute Power, where it is necessary, is not Arbitraryby being absolute, but is limited by that reason, and confined to those ends, which required

it in some Cases to be absolute. . ', and more generally para. 104, 11. 1-7 (p. 354); para. I 18,

11. 11-13 (p. 365) and the form of the argument in para. 120, 11 1-21 (esp. 1.6) (p. 366).

lo2 Laslett (ed.), op. cit. and Treatise, para. 164,ll . 1-19 (esp. 11. I-g), (p. 395). 'B ut since a

Rational Creature cannot be supposed when free, to put himself into Subjection to another,

for his own harm: (Though where he finds a good and wise Ruler, he may not perhaps think

it either necessary, or useful to set precise Bounds to his Power in all things) Prerogative can

be nothing, but the Peoples permitting their Rulers, to do several things of their own free

choice, where the law was silent, and sometimes too against the direct Letter of the Law, for

the publick good; and their acquiescence in it when so done.'

lo3 Laslett (ed.), op. cit. 2nd Treatise, para. 179,ll. 1-12 (p. 406): ' .. the Conquerour gets no

Power but only over those, who have actually assisted, concurr'd, or consented to that unjust



to which the people have not yet specifically consented or which are in direct

conflict with the structure of rules to which the people have consented may be

considered to carry the consent of the people where they clearly further the

ends for which the rules were originally estaSlished.lo4All these examples haveone feature in common. They are all instances of rational interpretations of the

nature of consents given by a people within a legitimate society. The question

of the rational criteria for originating a legitimate political society is never

faced very firmly; but the position implied is clear enough. What constitutes

the legitimacy of a political society is precisely its recognition as legitimate by

its subjects.lo5The issue of just what such a recognition would be like as an

event in the world is not discussed because it hadhappened long enough ago

in England for its precise historical character to be irrelevant. But the formal

nature of the claim is clear-it is the recognition of legitimacy which createsthe legitimacy of the sovereign.lo6 I t would seem more natural, perhaps,

today to put this as the recognition constituting rather than creating the

legitimacy; but, when taken with Locke's account of revolutionary right, his

analysis of legitimacy seems markedly similar to that recently favoured by

Professor Hare.lo7Of course, in context and intention it is radically different;

I emphasize the resemblance in detail merely to make the exposition a little

more intelligible.-Locke's expectations about the viability of social authority are nowhere

systematically expressed. To complicate the matter further, the point at which

they are voiced most explicitly in the Two Treatises is one at which he might

well be suspected of disingenuousness. Even if, as I think probable, the position

there stated is wholly sincere (however great the change may seem from his

anxieties of 1660 and the fiacts on Government), what it asserts is more the

behavioural inertness of the people than its normative acceptance of the

legitimacy of authority.lo8This sense of voluntary moral acquiescence is less

f o rc e , th a t i s u se d a g ains t h im . F o r th e P e o p le h a v in g g iv e n to th e i r Go v e rn o u rs n o P o wer t od o a n u n j u s t t h i n g , s u c h as t o m a k e a n u n j u s t W a r , ( f o r t h e y n e ve r h ad s u c h a P ow e r i n

t h e m s e l v e s : ) T h e y o u g h t n o t t o b e c h ar g ed , as g u il ty o f t h e V i o l en c e a nd U n j u s t ic e t h a t i sc o m m i t t e d i n a n U n j u s t W a r , a n y f ar th e r, t h a n t h e y a c tu al ly a be t i t ; n o m o r e , t h a n t h e y aret o b e t h o u g h t g u il ty o f a n y V i o l e n c e or O p p r e s s io n th e i r G o v e r n o u r s s ho u ld u s e u p o n t h eP e op le th e mse lv e s , or a n y pa rt o f th e i r F e l lo w S u b je c t s , t h e y h a v in g imp o we re d th e m n om o r e t o t h e o n e , t h a n t o t h e o th er .'

10%aslett (e d. ) , op. c i t . 2nd Tr ea tis e , para. 15 8, 11. 1-39 ( p p 3 91 -2 ) ( e s p . 11. 12-16)' . . . i t be in g th e in teres t , as we ll as th e in ten t io n o f th e People , to have a fair and equal Repre -se n ta t i v e ; wh o e v e r b r in g s i t n e are st to th a t , is a n u n d o u b te d F r ie n d , to , an d E s ta b li sh e r o f th eG o v e r n m e n t , a nd c a nn o t m i s s t h e C o n s e n t an d A p pr o b a t io n o f t h e C o m m u n i t y . ' See also ch.

XIV, ' O f P rero ga t iv e, ' pp. 392-8, passim.

lo6 Lasle t t (ed . ) , op . c i t . 2nd T rea t ise , para. 192 , l l . 1 -27 ( p . 41 2 ) and see foo tno te 85 above .l o w o r e a bs tr ac tl y, f o r t h o se w h o are m e m b e r s o f a p ar tic ula r p olit ic al s o ci et y ( t h e

v a g u en e ss i s p resen t i n L o c k e ; b u t d o e s i t d a ma g e th e a rg u me n t? ) h e re i s a p r ima ry se n se i nwh ic h t o pred ica te leg i t imacy o f i t s au thori t ie s has a crucial i l locu t ionary force wh ic h is moreth a n s imp ly d e scr ip ti v e . S e e J . L. A u s t i n , H o w t o do t hin gs w i t h W o r d s ( O x f o r d , 1 9 6 2 ) .

lo' C f . R . M . H a r e , ' T h e L a w f u l G o v e r n m e n t ' ( i n P ete r L a sl et t an d W . G . R u n ci m an ,Phi losophy , Po l i tic s , and Soc ie ty , 3rd Series ( f or th co m in g) ) .

lo8 See Lasle t t ( ed . ) , op . c i t . 2nd T rea t ise , paras . 208 , 209 , 223 , 225 , 230 e tc . and c f .L o ck e, Som e Considerations of the Consequences of th e Lowering of Inte res t. . . W o r k s , 11 , 4 6 . I t



I80 J O H N D U N N

spelled out ; but it is often invoked. In the discussions of prerogative and of

the patriarchal origins of political authoritylOg as in the incidental assumptions

about the efficacy of social order,l1° it is a continuing theme. The phrase

which perhaps best summarizes the notion is 'voluntary assent and acquies-cence'. There is nothing very creative about such a response. Where authority

is legitimate, it is both a simple duty and a natural inclination to acquiesce in it.

There is an illuminating analogy between the way in which Locke talks of

consenting to authority in this way and his conception of assenting to the

truth of beliefs about the world.lll Occasionally he even uses consent and

assent interchangeably. The notion of a truth is not contingent on whether

individuals do assent to it112-but the only way in which it can be known to

be true is in such an assent. Men have a responsibility to 'regulate' their

assent; they have cognitive duties113 and they have a duty not to assent tofalse ideas. There is an order of potentially recognized legitimacy and

potentially apprehended truth; the order of nature. There are also orders of

authorized legitimate governments and systematically apprehended truths:

the orders of political society and of Science. These latter are frailer and more

contingent in appearance; and because Locke is concerned so sharply with

epistemology, it seems often in his writing as if they are all there is. But this is

to take a methodological empiricism and voluntarism for an ontological one.

is only in conditions of acute scarcity, and normally only as a result of maladministration tha t

members of the working classes attempt to act as an economic pressure group; but it seems tobe also only at such a time that Locke expects them to 'forget respect'.

lo@ Laslett (ed.), op. cit. 2nd Treatise, chs. XIV and VIII, esp. para. 105, 11. 8-16, 24-29

(pp. 354-5); para. 112, 11. 1-8 (p. 361); para. 74, 11. 10-37 (pp. 334-5); para. 75, 11. 1-5

( p 335) ('Thus ' twas easie, and almost natural for Children by a tacit, and scarce avoidable

consent to make way for the Father's Authority and Government. The y had been accustomed

in their Childhood to follow his Direction, and to refer their little differences to him, and

when they were Men, who fitter to rule the m? ') ; para. 76, 11. 1-2 (p. 336) ('by an insensi-

ble change'). Besides above on patriarchal origins see, on prerogative, esp. para. 94, 11.

10-17 (p. 347); para. 158, 11. 12-16 (p. 391); para. 161, 162 (pp. 393-4).

11° See footnotes 108 and 109 above; e.g. Locke, Som e T/zo~gJz ts oncerning Educa tion.. . .W o r k s , IV, Preface, side 2 (not paginated). ' . .tha t most to be taken care of, is the gentleman's

calling. For if those of that rank are by their education once set right, they will quickly bringall the rest into order. '

See Hu m. Un d. passim (e.g. I, 6, 10 , 12, 14, 15, 16, 22 , 39, etc.) and see Draft A of the

Essay (ed. Aaron and Gibb); Draft B (ed. Rand), etc.

112 I n this respect it is plainly stricter than its political analogue. Consent is a necessary

condition for a legitimate political society. No human psychological state can be a necessary

condition for a notion being true. However it seems very likely that Locke would have held

tha t men living in a non-political context in a complex society had a duty to confer political

legitimacy upon that society by their consents. Plainly such a notion is quite irrelevant to the

theme of the Two Treatises itself; but it was far from irrelevant to its subsequent polemical

career. Some such assumption seems to make better sense of the embarrassing situation in

which Locke was placed by his friend William Molyneux's invocation of his authority in

defence of the English ascendancy in Ireland in the latter's Th e Case of Irelan d's being Boundby Acts of Parliament in England (Dubl in, 1698) and the extensive debate which this evoked.

113 Cf . the development of the suicide taboo argument in more radical eighteenth-century

writers into the specific duty to resist arbitrary power-e.g. Jonathan Mayhew, A Discoursecoltcerning U72linzited Submission and Non-resistance to the Higher Powers (Boston, 1750),

conveniently in Bernard Bailyn (and Jane N. Garrett), Pamphlets of the American Revolutzon :1750-1776 (Cambridge, Mass. 1965) (with excellent introduction), I, 203-47.



C O N S E NT I N T H E P O L I T I C A L T H E O R Y O F J O H N L OC KE 181

It is their reluctance to admit the degree of intellectual disorder which he

displays here that has misled commentators into wishing a more elegant

theory upo n him.

W hat, th en, is th e role of consent in the theory of t he Two Treatises? A ndwhat are the criteria for i ts existence in th e wo rld? For one to b e said to have

consented to a practice there are the following necessary conditions: (I)

T h e occasion on w hich one is said to have consented mu st have been one o n

which on e was acting voluntarily-that is to say that th e claim that a n act

displays consent is defeasible by the demonstration that it was directly

coerced; consent is not the same as submission. But to act voluntarily does

no t imply to act witho ut powerful motivations114-it is precisely becau se th er e

are su ch compelling economic reasons for any m an to rem ain in his coun try

of birt h th at he is so clearly obliged to consent to its governm ent, if legitimate.( 2 ) Nor does it mean to choose explicitly and self-consciously to accept the

practice-this is 'express ' or ' explicit ' consent. (And even 'express ' consent

does not depend upon having any reasonable future grasp of the probable

consequences of accepting the practice.)ll6 W hat th e occasion m ust be is one

which indicates a prima facie disposition to take (normally, presumably

indefinite) advantage of th e practice. (3 ) The practice must be legitimate in

itself.l16 T h is latter is the m ost complex criterion. I t is also proba bly t he

most important. It explains why the fact that the Greek Christians do not

emig rate (and the fact that they presum ably use s uch roads and other utilitiesand administrative facilities as the Turkish regime provides) in no way en-

hances the legitimacy of th e Tu rkish regime. I n these terms most governments

11* S e e Hum. U n d . I , 2 1 9 : ' H e t h a t h a s h i s c ha i ns k n o c k e d o f f a n d t h e p ri so n d o or s s e t o p e n

t o h i m i s p e rf e ct ly a t l iber ty , b e c a u se h e m a y e i th e r g o o r s t a y as h e b e s t l i k es , t h o u g h h i sp r ef e re n ce b e d e t e r m i n e d t o s t a y b y t h e d a r kn e ss o f h e n i g h t o r il ln es s o f h e w e a t h e r o r w a n t

o f ot h er l o dg i ng . H e c ea se s n o t t o b e f r e e , t h o u g h t h e d e si re o f s o m e c o n v en i en c e t o b e h a d

t h e r e a b s o lu t e ly d e t e r m i n e s h i s p r e fe r e n ce a n d m a k e s h i m s t a y in h is pr i son . ' T h i s p as sa ges e e m s c lo s el y t o p ar alle l t h e i m p l i c a ti o n s o f h i s d i s c u ss i o n o f t h e r i g h t o f e m i g ra t i on , a n o t i o n

w h i c h p la ys a n e s s e nt i al ro le i n h i s t h e o r y .

115 S e e t h e d i sc u ss i on i n c h . v o f t h e T w o T rea t ise s o f t h e o r i g in s o f l ar g e d i ff e r en t i al s i n

p r o p er t y -h o l d in g s t h r o u g h t h e ( n ec e ss a ri ly c o n se n s u al ) d e v e lo p m e n t o f a m o n e y e c o n o m y .

C f . f or a c le ar s t a t e m e n t , J o h n R a w l s , ' J u s t i c e a s F a i r n es s ' , i n P e t e r L a s l e t t a n d W .G.

R u n c i m a n , Philosophy, Polit ics, and Society , 2 n d S e ri es ( O x f o r d , 1 9 6 2 )- t h ou g h i t s e e m s

i m p o r t a n t t o p o in t o u t t h a t i n t h e w o rl d a s i t i s s o m e p e op l e a lw a ys do h a v e l es s d e f t s en s es o f

t h e i r p r o ba b l e f u t u r e s it u a ti o n w i t h i n a ' p r a c t i c e ' t h a n o th er s- an d t h a t t h e s e d i f f e r e n c e s npred ic t ive sk il ls se em h ig h ly corre la ted w i t h class d i f f e ren t ia l s .

116 1.e. i t m u s t i t s e l f h a v e b e e n f o r ma l l y l e g i t i ma t e in t h e p as t ( w h e r e a p o pu l a ce i n a st a te

o f n a tu r e f a il s t o s e t u p a p olitica l a u t h or i ty b y i t s c o n s e n t , all i n d i v i du a l m e m b e r s o f i t m i g h t

b e s aid t o b e m o r a l ly a t f a u l t b u t n o e x i s t in g l o c u s o f p o w e r w o u l d n e ce s sa r il y a c q ui r e a n y

a u t h o r it y o v er t h e m b e ca u se o f h i s ) . T h i s i s t h e m o s t e q ui vo ca l i s s ue ( a n d t h e o n l y o n e a b o u t

w h i c h a n e n q u i r y lik e W . K e n d a l l ' s ma k e s s e n s e ) . T h e m o s t e ss e n ti a l p r e mi s e , a s sa id a b o v e ,

i s t h e i de ol og ic al v ia b il it y o f h i e ra r c h y. T h e p r o b l e m a s L o c k e s ee s i t i s n o t t h a t m e n a re notp r o n e t o a c c e p t l e g i t i ma t e h ie r a rc h ie s , b u t t h a t t h e y a r e a ll t o o p r o n e t o a c c ep t i l l e gi t ima t e

o n e s . B u t t h e i r a c ce p t an c e a n d s a n ct i on i n g o f s u c h h i er a r ch i e s c a n n o t b e c o n s t r u e d t o t h e i r

d i s a d v a n t a g e in p ar ti cu la r c as es e x c e p t w h e n i t i s sp e ci fi c t o t h o s e c as es . T h e o n l y a ct w h i c h

c a n b e construed t o o n e ' s d is a d va n t ag e i s t h e v o l u n t a r y e x p lo i t a t i o n o f a p ra ct ic e- an d t h a t

o n l y w h e n o n e h a s b r o k e n t h e r u l es w h i c h d e f i n e t h e p ra cti ce .



I82 J O H N D U N N

in th e world of his day mu st have seem ed to Locke of highly dubio us legiti-

macy. I t explains why not d eserting the territory of a monarch w ho starts an

unjust war does not make one guilty of waging unjust war oneself. In other

words, to summarize, where a practice is legitimate and a role involvesparticipation in the practice, consent to doing so and hence consent to its

responsibilities is axiomatic-all potential do ub ts are resolved in favour of th e

practice. But when it is illegitimate the doubts are resolved in favour of the

agent. I n th e last resort t he judge of th e legitimacy of a practice can only be

G od . T h e terrestrial consequences may not reveal his judgem ent of th e act;

bu t th e etern al ones will do so, just as they will reveal his judg em ent of every

other human act.

Locke has sometimes been accused of propounding a sort of political

solipsism. I t is easy to see how a theory w hich bases political obligation u po nconsent might be open to such a charge.l17 But no such hu bris does in fact

dom inate Locke's vision of politics. T h e shells which m en have built for their

shelter in the conduct of their social life are frail and impermanent; the

responsibilities which they bear are heavy and the dangers which threaten

them incessant. All the best and all the worst which they represent is a

product of the shifting struggle in every human conscience of reason and

passion, good and evil. In th is unedifying dram a the consent of me n, as I have

tried to show, is merely the mode in which political authority acquires such

legitimacy as it has. But legitimacy is no final and irrevocable achievement.

Human life is always a broken-backed affair, whose sole sufficient rationale

must remain in another world than this. Such a theory provides a bizarre

starting point indeed for the investigation of any topic in contemporary

political theory. Can either be much illuminated by so odd a tacticlls?

"' Since the completion of this article Hanna Pitkin has treated Locke's theory of consent

in an article, 'Obligation and Consent', American Political Science Review, LIX, no. 4 (Dec.

1965)~ 90-9 and LX, no I (March, 1966), 39-52. See esp. pp. 994-7. While I do not at all

agree with the general argument of the article and consider the framework within which

Locke's concept is analysed as importantly misleading, the account of the structure of theconcept seems to me unusually lucid, perceptive, and just.

118 I should like to acknowledge the kindness of M r Peter Laslett and Mr Quentin Skinner

in reading this article for me and in making numerous helpful comments on it.

Dunn, J. - Consent in the Political Theory of John Locke

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Transcript of Dunn, J. - Consent in the Political Theory of John Locke