Locke, in his Two Treatises of Government, expounds the view that modern liberal society can be characterised by the notion of a social contract - one into which everyone enters to depart from the state of nature and to enter civil and political society. In doing this he feels that individuals must relinquish certain rights, but in return are rewarded with property and certain liberties to bring prosperity. Should the conditions of this contract be broken by the state, then the people are given right to rebellion, and society is effectively dissolved.
Locke, like Hobbes before him, frames modern society through explanation of a social contract and progression away from a (fictional) state of nature. In contrast to Hobbes however, the state of nature for Locke is not characterised by an incessant state of conflict and war, but by an individualistic population who are both judges and executors of justice (Locke, 2009, p.272). In Locke’s state of nature, natural law is the preservation of all men (by command of God), as opposed to preservation of the self (Locke, 2009, p.271). The state of nature is a state of potential cooperation and altruism, even though human passions may still occasionally overrule reason (Pavkovic, 2011, Lecture4 p.5). This leads Locke to identify three deficiencies present in the state of nature. Firstly, the lack of a commonly agreed law that specifies the standards of right and wrong, secondly, the lack of an impartial judge to mediate disputes about right and wrong, and thirdly a power to execute justice when determined (locke351). The solution to these “inconveniences” (Locke, 2009, p.276), as Locke calls it, is to enter into a social contract and to form civil and political society (Locke, 2009, p.325).
To enter this society, humans are required to relinquish certain rights. Specifically - the rights of judgement and punishment against those who breach the natural law (the preservation of all men). These rights are conferred instead upon two separate bodies of government; the legislative, and the executive. The legislative body takes on the responsible for determining laws (the power to judge), and the executive body takes on responsible for executing laws (the power to punish) (Locke, 2009, pp.352-353). By transferring these powers, citizens are to be given protection in society through the execution of this unprejudiced legislation. The purpose for humankind is to enjoy their lives and their property in peace and safety (Locke, p.335). They are no longer subject to the whim of human partiality, and can be assured of objective treatment by those in power. In giving up natural liberty, humans are gaining social liberty, and whilst they are subject to a political power that was non-existent in the state of nature, this is only within the constraints of constitutional law, which is predictable and applied fairly and equally to everyone.
Locke’s theory may be framed by some as an apology for constitutional, liberal, representative government (Pavkovic, 2011, Lecture5 p.3), but by including the notion of majority consent (Locke, 2009, p.331-332), Locke seeks to provide an argument for legitimacy. He says the bodies unto which these powers are bestowed, can only be appointed by the people (Locke, 2009, p.331), which is in direct opposition to the common historical idea (and the subject of Filmer’s Patriarcha) of power being ordained by God and limited only to the arbitrary will of a sovereign (e.g. the ruling monarch) (Locke, 2009, p141). In Locke’s view, humans must consent to this transfer of power (to judge and punish), as they are giving up a natural and fundamental liberty. This must be done freely.
Foreseeing an objection to the notion of consent (Locke, 2009, p.334), Locke makes a distinction between its express and tacit forms. Express consent he believes to be relatively straightforward. A person consents explicitly to the subjection of the government ruling a society, and therefore becomes a “perfect member of society” (Locke, 2009, p.347). These people have contracted explicitly to live under the governance of civil and political society whereby the powers of legislative and executive action are relinquished to separate overarching governmental bodies. So far, so good. But this only applies to those people who were present at the formation of society, or who sign a contract upon emigrating and becoming a citizen. People do not normally consent explicitly, at birth, to the subjection of government power, nor do foreigners travelling or living within a society explicitly consent to this subjection, even though they are subject to the society’s laws. These parties don’t appear to contract to anything. It is to this gap, that Locke assigns tacit consent. Whilst a person may not contract to do anything in a particular society, by enjoying or possessing any part of a society and/or its land, they are effectively subjecting themselves to its terms of social contract. This includes travellers who are passing through (enjoying the land), descendent generations of those who provided express consent and were born and live freely in the society (enjoying liberty), and those who inherit property and wish to enjoy its benefits (enjoying property). It allows Locke to apply the social contract as a matter of justice to those who never explicitly ‘signed’ the contract. In return for allowing them liberty, protection, and property, they must tacitly consent to abide by the rules (applicable to all) pertaining to the protection of that liberty, protection, and property (Locke, 2009, pp.347-348).
But this contract is not without its reciprocal terms. As much as any person who tacitly or expressly consents to the contract is bound to obey its rules and authority, so too are the governing bodies contracted to fulfil their role as protectors of property and liberty. They have the people’s trust that the law will be upheld, and in Locke’s view “wherever law ends, tyranny begins” (Locke, 2009, p.400). To this end, Locke identifies a series of scenarios whereby the government may be in breach of its terms, and the actions which citizens may take in response. For example, should there be legislative changes made by unauthorised persons whom the people do not support, well then they are not obliged to obey those laws (Locke, 2009, pp.407-408). Or, if those in government fail to perform (or forfeit) the duties assigned to them, the people have a right to take it upon themselves to govern. They have a right to choose new legislative and executive powers that will fulfil government obligations. Any act which is contrary to the trust imparted by the people (who are fulfilling their terms of the contract), is deemed illegitimate and may cause government to be dissolved. Locke even goes as far to say that should the government confiscate or destroy the legally owned property of its citizens, then the government is at war with society, and society no longer need obey the powers that be (Locke, 2009, pp.410-412).
For Locke, liberty and property are inalienable and fundamental rights as opposed to gifts bestowed by the governing bodies (as with Hobbes) (Pavkovic, 2011, Lecture3 p.16). Should the governing bodies fail to protect its citizen’s rights to liberty or property, then they are deemed in breach of the social contract and illegitimate. For in requiring that citizens meet the terms of a social contract, they are in response agreeing to fulfil their own obligations to uphold the duties assigned to them for the good of society and its people. Humans tacitly consent to enter the social contract, and to relinquish certain rights, for the peace and protection of humanity. When that can no longer be upheld, nor can the legitimacy of any ruling power.
REFERENCES/BIBLIOGRAPHY
· Barker, C (2008), Cultural Studies: Theory and Practice, 3rd edition, SAGE, London.
· Bakunin, M; Dolgoff, S (1972), ‘Federalism, socialism, anti-theologism – extracts’, Bakunin on Anarchy: Selected Works by the Activist-Founder of World Anarchism, Bakunin, Mikhail; Dolgoff, Sam, pp.102-103, 132-143.
· Fine, B; Saad-Filho, A. (2004), ‘Capital and exploitation’ Marx's Capital, Fine, Ben; Saad-Filho, Alfredo, pp.31-50.
· Fukuyama, F, (2006), The End of History and the Last Man, Free Press, New York.
· Hobbes, T 2008, ‘Leviathan’, eds. M Oakeshott, Touchstone, New York, p.94.
· Locke, J (2009), Two Treatises of Government, Cambridge University Press, Cambridge.
· Pavkovic, A (2011), ‘Lecture 3: Consent and the Right to Political Power – Hobbes’ Social Contract Theory’, PLT220: Power and Legitimacy in Modern Political Thought, Macquarie University, Sydney.
· Pavkovic, A (2011), ‘Lecture 4: Political Power Restricted by a Social Contract – Lock’s Argument for Natural rights’, PLT220: Power and Legitimacy in Modern Political Thought, Macquarie University, Sydney.
· Pavkovic, A (2011), ‘Lecture 5: How to Remain Free and Yet Live in a State – Rousseau’s Proposal’, PLT220: Power and Legitimacy in Modern Political Thought, Macquarie University, Sydney.
· Pavkovic, A (2011), ‘Lecture 9: The Liberal State – Illegitimate and Inconsistent?’, PLT220: Power and Legitimacy in Modern Political Thought, Macquarie University, Sydney.
· Marx, K (1975), "Manifesto of the Communist Party (extracts)", Collected Works of Karl Marx, Frederick Engels, Marx, Karl, pp.486-493, 498-506, 518-519.
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