John Locke on Tacit and Unintended Consent Essay

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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,

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

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
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