John Locke on Tacit and Unintended Consent

In his Second Treatise on Law and Government, John Locke outlines clear and coherent standards for what constitutes a legitimate government and what persons one such government would have authority over. Both are determined by citizens’ acts of consenting to relinquish to the government part of their natural authority over their own conduct. Unfortunately, the situation becomes much less clear once we consider how his standards would apply to the political situation existing in the real world today.

If we continue to subscribe to Locke’s account without altering its standards, we would see a precipitous drop in the number of people whose interests existing governments are responsible for serving. In this paper I will show that with certain changes and clarifications to Locke’s standards, the responsibilities of existing governments need not be allowed to shrink so drastically. This creates a tradeoff, however. Changing the standards to apply more closely to actual functioning governments has the consequence of making it more difficult to determine the legitimacy of those governments.

Some of the clarity of Locke’s theoretical model is lost in translating it to apply to actual instances of government. A cornerstone of Locke’s political philosophy is the idea that a government holds power legitimately only through the consent of the governed. A civil society consents to grant a particular government rule over it, and each person chooses on an individual basis to become a member of a particular civil society (II, 117). As giving such consent has far-reaching consequences over a person’s life, Locke provides further explanation of what “consent” entails in this context.

Only one way exists to become a member of a civil society: express consent. From Locke’s account this would have to be a fairly formal business, which the individual enters “by positive Engagement, and express Promise and Compact” (II, 122). Locke’s original wording is important because it seems to imply that unless a person actually makes a public agreement to submit to government law in return for protection of person, liberty, and property, she has not expressly consented. He makes it clear that there are no alternatives to this official process if one is to become part of a civil society, (II, 122).

Even if one is not considered part of a particular civil society, she must submit to its authority to the extent of her involvement in that society. Someone who owns land within the territory occupied by a civil society is obligated to obey the law of whatever body has ruling authority in that territory as it applies to ownership and use of property. Someone merely travelling on a public road through a country will have less contact with the civil society of that area and so fewer laws of that society will have application to her behavior.

Still, those laws that do cover what activities she carries out have binding force on her (II, 120-121). These people incur the obligation to submit to local authority because that authority is protecting them, perhaps by preventing the citizens of the area from acting in ways that would harm other people including the outsider. For the outsider to be free of those restraints and take advantage of the area’s citizens would be unjust; therefore she is obligated to comply with the legal restraints observed by citizens the area.

In neither of these cases would the person in question be considered a member of the civil society whose laws she is obeying unless she expressly consented to join that society in addition to her tacit consent to follow its laws. An immediate criticism of Locke’s account thus far is that in practice, hardly anyone expressly gives consent to join any civil society. Even in most real-world cases where a person does announce submission to a particular government, the declaration would not meet Locke’s conditions of consent that would give legitimacy to the rule of government over that person.

Oaths such as the U. S. Pledge of Allegiance are usually only indications that the speaker is prepared to obey directives from the government of a particular state. Consent in the strict sense would have to make explicit what the person is consenting to. Someone joining a civil society under Locke’s conception would need to spell out that she is giving up the right to make and enforce her own judgments to the government of that society, in return for that government’s protection of her interests.

Even promises of blind obedience are far from universally practiced, and in most countries are the practice of reciting such pledges is confined to schools and youth groups as a form of education rather than contractual agreement. (The idea that most civil societies do not consider young people mature enough to consent to become members is discussed later in this paper). Explicit contractual consent is far rarer than these questionably binding declarations.

If most people fail to give explicit consent to trade away some of their natural rights, under Locke’s terms they have not joined any civil society, and so should not be counted as the citizens of any state or the subjects of any government. This has profound significance because of the relation between civil society and government. The agreement of a civil society is the force and justification behind its government’s authority (II, 149); in return for the mandate that grants it power, the government exists to protect the interests of that particular group of people.

Anyone not the member of a particular civil society has no legitimate voice in the form or operation of the government that society creates, and she has no right to expect that government to protect her interests. This does not mean that the government will not take any actions that are to her benefit; the laws of that nation which prevent its citizens from killing and robbing may also prevent them from killing or robbing her. When the government enacts laws, however, it need only do so with the interests of its constituency in mind, and has no obligation to create laws conducive to the interests of an outsider.

Any benefits the outsider enjoys as a result of the laws of a particular country are purely coincidental to those laws’ intent. Someone who is not a member of any civil society at all will accordingly have no power over any government, and her interests will deserve the consideration of no government. Since the vast majority of people have not given express consent to join a particular society, the majority of humanity has no right to expect its interests to be served or protected by any of the governments existing on earth.

Everyone, however, is required to submit to the control of one government or another depending of where they live, since basically every part of the earth inhabited by humans is under the dominion of one state or another. Rule is solely in the hands of those few people who have actually signed some kind of formal social contract, and needs only to consider their interests. Any government with which no living person has made a formal consent agreement rules illegitimately.

The fact that Locke’s model leads to an implication that most of humanity is neither the legitimate authors nor the deserving beneficiaries of government does not prove the model is logically flawed. However, the very great majority of people consider themselves members of a civil society, and are considered as such by other people and, most importantly, by governments. However real governments define their constituency, few if any set express consent as the standard. Enslavement of the tacitly consenting masses by the expressly contracted few thus fails to provide an accurate theoretical model of governmental institutions in the real world.

Locke himself describes of the formation of government as an action taken by and for the “community” (II, 149); this wording suggests that he would have disagreed with the idea that citizenship by express consent leading to dictatorship by a de facto minority is, in practice, the most typical form of legitimate government. It is possible that those without citizenship (the majority of people under our present definition) actually benefit by not being contractually bound to any particular civil society.

As long as someone who is not an official citizen resides within the territory of an existing government which fulfills the duties expected of government (II, 131), its laws discourage both citizens of the civil society and other “outsiders” from threatening her life, liberty, and property. Thus someone could enjoy much of the security that membership in a civil society would provide simply by living in a well-governed area without joining in civil society. In PHI 309 lecture, Prof.

Sreenivasan pointed out a possible advantage that such a living arrangement could provide for the unaffiliated: in cases where it was in one’s best interests to abandon a country beset by war, pestilence, or economic or other disaster, noncitizens could jump ship without that act being considered an injustice. Those who had by express consent tied themselves to the civil society might well be obligated to remain with the community, and would not have the option of fleeing the war or hardship. Yet in most of the world, nomadic living is considered the exception, not the rule.

Citizens of the world’s various nations must be considering factors not included in Locke’s account. One of the most significant of these is a convention that has introduced a new kind of consent enabling people to become citizens of particular states. Most civil societies have found it desirable to designate officially who is a member of that society, i. e. a member of that state. As a government’s power depends on its constituency, government function is expedited by the government’s having accurate knowledge of the extent of its power base, that is to say the extent of its citizenry.

At the same time, concern for its own integrity and distrust of outsiders drives a civil society to delineate who is and is not a member. These and perhaps other factors have led to the creation of conventions (usually expressed as laws passed by governments) by which a person is declared to be a member of a particular civil society (i. e. citizen of a country) regardless of whether or not that person has actually expressed consent to what such membership entails. The most typical example is a law declaring that anyone born in the territory of a particular nation is a citizen of that nation.

When still a juvenile, that person of course has not actively consented to anything, and so is usually considered not complete member of civil society; although part of a community, the juvenile generally lacks certain rights and powers given to full members of the society. Upon reaching the age when she can make her own decisions, laws indicate what society the person is considered a member of in the absence of active consent by that person. The person continues to hold that default membership until she makes an active decision to join another civil society.

The conventional reflection of this active decision is generally a naturalization process by which someone can become a citizen of a country she did not belong to by default. By going through the naturalization process, a person is understood to consent to the tradeoff which would make her a member of that civil society. It could be objected that being considered the member of a civil society by default is another matter entirely from consenting to join that society and willingly relinquish one’s rights. Where is the consent in this instance?

This question is less troubling before the person has come of age, because most would agree that a juvenile generally lacks the judgment to be signing any kind of binding social contract. But can a government legitimately assert that a person has consented to cede her rights to it simply because she has not actively protested? This question could be answered affirmatively. A person can choose not to consent to membership in her default civil society, or give up her membership in a civil society she already belongs to, by joining another civil society through a more active process such as naturalization.

This means that if she does not take such an action, she is accepting the convention that interprets her inaction as an expression of consent to join the civil society she was assigned to by default. By systematizing and codifying standards for consent, then, states in actual practice ensure that the great majority of people are not lone agents. One might still question how conscious most people are that they are held to be making this sort of contract, even in the most open societies. A case can be made that essentially, they are aware.

No one is unaware of what society she belongs to. Each person is effectively the member of whatever civil society exerts control over her, usually through its government. As soon as that person is conscious of the control being exerted over her, she is made unmistakably aware of what her citizenship is. With the realization of what government she is under comes the option to change her membership. The final and most damaging criticism of the consent model is the question of what happens when a person does not have the option to move to a new territory and join a new civil society.

This may occur because of a person’s own lack of means to carry out or simple ignorance of the options ostensibly available to her. It may also be the result of oppression by the government, preventing citizens of the country from leaving. Any of these conditions can force a person to remain an official member of a particular civil society. However, the standard of “conventionalized explicit consent” introduced above is only able to maintain that most people consent to join a civil society because it assumes those people have options besides their initial citizenship.

If people are not being given other options, the model is still not logically flawed. Rather, it suggests a situation similar to that originally introduced as the consequence of applying Locke’s model to the real world: the people in such situations are not really part of the civil society that created the government to whose control they are forced to submit. As such, they retain undiminished the right to join another civil society through a new social contract. If they do so, they may create a new government to follow instead of the one they currently submit to by tacit consent.

Of course, there is no guarantee that the government ruling them in the status quo will allow them to replace its control. If it retains control over them by force, Locke’s model would still hold them to be tacitly consenting to its authority by “enjoyment” of its dominion. This counterintuitive conclusion is avoided by the model requiring choice for real consent. If we follow that paradigm, we come to the conclusion that the government is ruling without any consent from the governed in those cases.

According to Locke, such government is mere enslavement and so is illegitimate. To say that a government is wholly illegitimate if it hold power over even one person without her consent is clearly excessive; probably no government could ever achieve legitimacy under that criterion. However, we can say that a government is legitimate to the extent that its citizens are aware of other options and consider membership in their current civil society with its ruling government preferable to those options.

The problem with such a standard is that it depends on what is thought by the citizens of a country, and to ascertain a person’s mentality is difficult. The most reliable test is to provide citizens with realistic options and observe whether they remain with the status quo or seek a change in their situation. That change may involve leaving their current civil society, or it may mean seeking to change the structure or behavior of that society’s government.

The country’s citizens can be said to consent to the government ruling them to the extent that they posses the power to change their situation, but still maintain the status quo. Thus, the legitimacy of a government can be measured by the effective options available to its citizens. If we had held to Locke’s standards for consent to membership in a civil society and submission to government rule, we would have concluded that most people in the world are tacitly consenting to the rule of governments created by very small groups of explicit signers of social contracts.

This would lead to a bizarre picture of the political landscape very much at odds with intuition and with modern reality. By changing standards for consent to mean compliance with official requirements for citizenship when other options are available, we are able to account for those who consider themselves and are considered members of a civil society without having given explicit consent, while at the same time freeing those not given a choice from the appearance of having given consent.

A government is then legitimate to the extent that its citizens have given consent according to these standards. It is one of those rare examples where laws have made the situation clearer. Sources: Locke, John. Second Treatise. From Two Treatises of Government, Laslett, Peter, ed. New York: Cambridge University Press, 1988.