John Locke on Tacit and Unintended Consent

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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...
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