THE SUBJECT MATTER of this essay is Locke's well-known discussion of consent in sections 116-122 of the Second Treatise of Government.' I will not be concerned to discuss the place of consent in Locke's political philosophy 2 My concerns are somewhat narrower than this. I will simply be concerned to show that in important respects several recent discussions of Locke's political philosophy have misrepresented Locke's views on the subject of express and tacit consent. At theheart of these misinterpretations lie misunderstandings (...) about the way in which landownership and the inheritance of land are related to express and tacit consent. I will show that these misinterpretations of Locke's views are, to a certain extent, indicative of internal strains that can bediscovered in Locke's arguments. My discussion will fall into four sections. In the first I will try toclarify Locke's views on the nature of express consent. I will show that Locke's views on this matter, when examined in their historical context, are not as obscure as some critics have suggested. In the second section I will examine Locke's views on the nature of tacit consent. I will be especially concerned to examine the relationship between landownership and express and tacit consent. In the third section I will look at Locke's views on the inheritance of land and how it relates to express and tacit consent. I will show that his views on this matter are not entirely consistent. In one passage Locke suggests that inheritance of land requires only tacit consent whereas, in another passage, he suggests that inheritance of land requires full membership of society and express consent. In the fourth and final section I will summarize the salient features of my interpretation of Locke's views on the subject of express and tacit consent. I will also briefly note interpretations of Locke's views that have been rejected in the course of this essay. . -/- . (shrink)

There is as yet no general agreement about exactly when Locke's Second Treatise of Government was written. Primarily as a result of Peter Laslett's arguments, the old assumption that it was written after the Revolution of 1688 has been abandoned, and it is almost universally agreed that both of the Two Treatises were written (apart from a small number of additions made in 1689) in the period between Locke's return to England from France at the end of April 1679 and (...) his departure for Holland in August 1683. An earliest possible date for the First Treatise can be established without difficulty. It cannot have been started before Filmer's Patriarcha was published in the winter of 1679-80, and probably not before Locke bought his own copy on 22 January 1680. Theories about the composition of the Second Treatise may therefore be divided into two classes: those which suppose, with Laslett, that it was begun in 1679, before Patriarcha was published, and therefore before Locke could have formed any intention of writing the First Treatise; and those which hold that it was not started until Locke had written at least the main part of the First. The second is of course the traditional view, and one that was taken for granted before Laslett's work; its most notable defender has been Richard Ashcraft, who has accepted Laslett's demolition of the 1689 dating, but has diverged from him in ascribing the Second Treatise to the period after the dissolution of the Oxford Parliament in March 1681. Ashcraft's criticisms of Laslett have been accepted by several recent writers, notably David Wootton, Mark Goldie and John Marshall, but they themselves have not agreed with each other or with Ashcraft in their positive claims. The whole question is therefore worth examining again. (shrink)

Recent interpretation stresses the narrow role of consent in locke: it is a ground, Not of legitimacy but of legitimate revolt. Locke is less precise. In rejecting filmer's claim that birth imposes absolute political obligations locke implicitly denies its determination of the locus as well as the degree of those obligations. Using consent to limit political absolutism, Thus inadvertently raised the question of its direct link with citizenship, Hence locke's confused discussion of tacit and express consent. Locke leaves the issue (...) unresolved, Making the common patriarchal assumption that the location, If not the degree of political obligation, Can be inferred from birth. (shrink)

The early paragraphs of John Locke’s Second Treatise of Government describe a poetic idyll of property acquisition widely supposed by contemporary theorists and historians to have cast the template for imperial possessions in the New World. This reading ignores the surprises lurking in Locke’s later chapters on conquest, usurpation, and tyranny, where he affirms that native rights to lands and possessions survive to succeeding generations. Locke warned his readers that this “will seem a strange doctrine, it being quite contrary to (...) the practice of the world.” His doctrine of native right is equally strange to recent scholars who see in Lockean theory the ideological prototype for England’s colonial expropriation in the “vacant lands” of North America. This interpretation, dignified by the elusive principle of vacuum domicilium, is considerably weakened when Locke’s arguments are placed in the historical context of the sixteenth and early seventeenth-century English colonial experience. Locke’s Second Treatise, with its literary flourish of a vast and idyllic state of nature, was written in the full appreciation of Amerindian agriculture, its established populations, the acknowledgement of native property rights, and the policy and practice of purchasing land from the native inhabitants. (shrink)

This paper is primarily a response to John Simmons’s critique of Locke’s consent theory of political obligation (Two Treatises). It seeks to apply ordinary legal reasoning to what Locke actually says about “express consent” and “tacit consent.” The result is a theory both different from the theory commonly attributed to Locke and more plausible. Among the differences is that express consent (“entering political society”) is understood to arise chiefly from seeking to vote (rather than by oath or voting) and tacit (...) consent is understood as a reasonable (but rebuttable) presumption of actual consent. In the course of presenting Simmons’s critique, the paper identifies four commonly accepted criteria of adequacy for theories of moral obligation to obey law or government, noting that Locke’s theory, under its lawyerly interpretation, fails to satisfy any of the four criteria but seems reasonably plausible (for example, in its ability to deal with Simmons’s critique). This is taken to be reason to weaken all four criteria. (shrink)

This paper is primarily a response to John Simmons’s critique of Locke’s consent theory of political obligation. It seeks to apply ordinary legal reasoning to what Locke actually says about “express consent” and “tacit consent.” The result is a theory both different from the theory commonly attributed to Locke and more plausible. Among the differences is that express consent is understood to arise chiefly from seeking to vote and tacit consent is understood as a reasonable presumption of actual consent. In (...) the course of presenting Simmons’s critique, the paper identifies four commonly accepted criteria of adequacy for theories of moral obligation to obey law or government, noting that Locke’s theory, under its lawyerly interpretation, fails to satisfy any of the four criteria but seems reasonably plausible. This is taken to be reason to weaken all four criteria. (shrink)