John Locke and Consent

In this post I am going to address an issue which comes up in Locke’s writings on political consent by addressing an argument made by A. John Simmons. The issue is over how Locke treats aliens as opposed to denizens (by Locke’s definition, long-term residents with a different status than even resident aliens). As such, this discussion will be historical in character rather than philosophical. I will not attempt to determine how political consent ought to be understood, I will only try to develop a picture of how Locke understood consent.

My first step in this debate is to outline what Locke said on the subject. Briefly, Locke believed that we consent to join a political society when we explicitly agree to society’s political authority. In §119 of the Second Treatise, Locke says that “an express Consent, of any Man, entring [sic] into any Society, makes him a perfect Member of that Society, a Subject of that Government.” He also says in § 122 that “[n]othing can make any Man so [a member of the commonwealth], but his actually entering into it by positive Engagement, and express Promise and Compact.” From this we might reasonably conclude that becoming a member of a political society requires some type of explicit statement.

The next thing to notice is that Locke believed that all men were born free in the state of nature. In §116 he says that the father, and parents generally, do not have the power to bind their children to a particular commonwealth. Also that “by the Practice of Governments themselves, as well as by the Law of right Reason, that a Child is born a Subject of no Country or Government.” (§118) And finally in §122 that “Consent… makes any one a Member of any Commonwealth.” So here we see that children are born neither as the subject of a commonwealth, nor necessarily tied to a commonwealth by their parents, with the further stipulation that men can only become members of a commonwealth by consent.

The final thing to notice before moving on to Simmons’ argument is that tacit consent, which is given by people in virtue of residing in or enjoying the protection of the land, seems to provide very little to both denizens and aliens (§119). Tacit consent is sufficient to provide consent to the laws of a nation, but it is not sufficient to give wider rights such as the right to participate in government or to receive the benefits of social programs. For those rights you need to be a member, which as I have already highlighted above, Locke seems to think that you can only become a member of a commonwealth through explicit consent (§122).

As Simmons points out, this creates a conflict between what Locke seems to say about denizens and aliens (Simmons, 163). For instance, Locke says earlier in §116 that children will come to be members of the commonwealth by inheriting the property of their parents, property which has come to be tied to the commonwealth. But, as we saw in §119, this type of act seems to be indistinguishable from tacit consent which Locke says is not sufficient to make one a member of a political society. For, in the case of aliens, the use of property is not sufficient to make one a member of a political society, yet for natural born residents (denizens), as per §116, the use of property is sufficient to make one a member of political society.

In order to make Locke’s theory consistent with itself, Simmons argues that we ought to interpret Locke as using two different types of tacit consent which can be distinguished by the content they attempt to develop. The type of consent that an alien gives when she crosses a border is consent to the laws of a nation for the duration of her stay (171). For instance, if I were to cross the border into the United States in order to enjoy the beaches and warm weather in Florida, then according to Simmons I have given my consent and agreed to follow the laws of the United States while I am visiting that country without consenting to have my income taxed, or be subject to conscription, or the right to vote.

In contrast to the tacit consent of the alien, a denizen consents to much more when he uses the property or decides to reside in a particular nation. He intends to have access to the political system and to be subject to much more than the mere protection of the laws (171). Say, for instance, that instead of taking a temporary vacation to Florida to escape the cold Canadian winter I decide to emigrate to (or even happen to be born in) Florida. In that case I would consent to far more than someone who is merely visiting.

In light of this distinction, Simmons asks us to differentiate between the two forms of tacit consent based on what the consent contains as its content. He highlights that in §119 Locke refers to explicit consent as conferring perfect membership rather than being the only source of membership in a community (173). Similarly, he takes the argument of §122 as being that the only way for aliens to become a member of the commonwealth is through explicit consent, but given the context of the argument, we should not apply it to denizens. Here I happen to agree with Simmons given that the entire section seems to be devoted to consent for foreigners,

But while Simmons’ interpretation seems to conform with most of Locke’s theory, at least so far as he has cited, I would like to draw attention to another passage in §118 which I think throws doubt on such a charitable reading of Locke. There he says that “if an English-Man’s Son, born in France, be at liberty, and may do so [choose which government to put himself under], ‘tis evident there is no Tye upon him by his Father being a Subject of this Kingdom; nor is he bound up, by any Compact of his Ancestors.” What I think this passage shows is that with the domestic case, that is, the choice a child born within a particular commonwealth makes, is, or ought to be, the same as the child born in another commonwealth.

The child of the Englishman is in a position that is not exactly the same as an alien visiting France, as the Englishman is, but is not the same as the child of French parents born in France. But, if we were to take Simmons’ reading to its logical conclusion, if the Englishman intended to live in France as a citizen then that would be sufficient for tacit consent not only to follow the laws as a foreigner, but to participate fully as a member of that society. But, as Locke says in §122, it is not sufficient that a foreigner reside in a commonwealth to become a member of it. She still must give explicit consent in order to gain the additional rights and responsibilities which we associate with membership in political society.

It appears that Simmons’ argument has moved the goal-posts, so to speak, but without actually resolving the tension between granting denizens rights and granting aliens rights. Even taking the purpose of consent into account does not resolve the issue that Locke treats foreigners of all types are requiring explicit consent in order to become members of the commonwealth even if they have the same intention behind their tacit consent as denizens, whereas denizens only need to consent tacitly.

I think that it is a mistake to try to make Locke’s theory completely consistent with itself. Given an historical reading and taking the context into account, it is reasonable to assume that Locke just assumed that denizens would be members of a political community whereas aliens would not. This is similar to our present-day assumption, at least in many liberal democracies, that citizenship is granted to all people born within a certain geographical area. Foreigners who come to reside within those border take on additional responsibilities to consent, but such explicit consent is simply not required for natural-born citizens. This is in conflict with Locke’s treatment of consent, but this tension does not need to be directly addressed if we read into his theory the hidden assumption that natural-born citizens just are different from aliens.

Bibliography:

Locke, John. Two Treatises of Government. Edited by Peter Laslett.Cambridge: Cambridge University Press, 1960.

Simmons, A. John. ““Denisons” and “Aliens”: Locke’s Problem of Political Consent.” In Social Theory and Practice 24:2 (1998): 161-182. Accessed February 21, 2015. url: http://search.proquest.com/docview/199287610?accountid=15115

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Must Theories of Justice Confer Rights?

In his paper, “The Impossibility of a Theory of Intergenerational Justice,” Wilfred Beckerman argues that it is incoherent to speak of intergenerational justice because future generations cannot hold rights. His argument is fairly simple:

  1. “Future generations – of unborn people – cannot be said to have any rights.” (53)
  2. “Any coherent theory of justice implies conferring rights on people. (54)
  3. “Therefore, (3) the interests of future generations cannot be protected or promoted within the framework of any theory of justice.” (54)

Of the two, I think that he has the least difficulties defending the first premise. To have a right in the normal sense of the term ‘to have’ you must exist. He says, as an example, that if he were to describe to us how his friend X has a fantastic music collection, and we were to ask who X is, and he replies that there is no X, we would rightly think that he is crazy or is talking nonsense. It does not make sense to us to talk of something that X has if X does not exist. (55)

A further difficulty when speaking of future rights holders is that the right which they have must be something we can satisfy. If my collection of rare and one of a kind stamps were destroyed in a fire, it is meaningless to say that I have a right to have my collection restored. As Beckerman says, ‘ought implies can’, meaning that I can only have a right to something if that thing is possible for someone to fulfill.

The second premise is much more difficult to defend since it is necessary to show that there are no theories of justice which do not confer rights on people. Or to clarify, if there is a single theory of justice which does not confer rights on people then his second premise is false. This is important for his argument since his aim is to not only show that future people cannot be rights holders, which has already been argued by many people before him, but the stronger claim that justice does not apply to future people.

His argument is difficult to decipher from his paper, but I think it can be summarized as follows:

  1. The well-known theories of justice in the literature focus on the distribution of something. For instance, Rawls defines justice as the way in which fundamental rights and duties are distributed.
  2. In an article written by Vlastos, he defines the main theories of distributive justice by the way they finish the sentence ‘to each according to his…’ where the various theories will fill in the sentence according to the good distributed (hard work, need, worth, etc.).
  3. Any theory which can be defined as above can be rewritten to say ‘everybody has a right to…’. So if we said ‘to each according to his needs’ we can rewrite this as ‘everybody has a right to what he needs’, and so on.
  4. Therefore, “a defining feature of any coherent and morally acceptable candidate for a theory of justice is that it attributes rights(and hence counterpart duties).” (64)

The first thing to note in premises (1) and (2) is that they add nothing in their present form to the logic of the argument. For (1), merely having an example of a theory or set of theories which confer rights does nothing to show that all theories of justice confer rights. For this reason premise (1) should be excluded from the argument. The claim in premise (2) is a bit more complicated, since Beckerman’s point is that even theories which do not explicitly use rights language can be rewritten in terms of rights. The first thing to note about his argument here is that premise (2) refers directly to distributive justice rather than justice on its own. It may very well be the case that all theories of justice can be interpreted as forms of distributive justice, and therefore rewritten in terms of rights, but that point needs to be argued.

Suppose that we subscribe to some form of justice which says that justice is acting virtuously in public life. In order to outline this as a form of distributive justice we might say that the good being distributed is honour, so that the sentence from above is ‘to each according to his virtue’, and ‘everyone has a right to honour’. But, as might be seen, to say that virtuous people have a right to honour goes against the common notion of what honour is supposed to be. As soon as you treat it as the sort of thing which can be claimed or justly distributed you destroy part of its character. To use an example from Plato’s Republic, he thought that the perfectly just person would be seen as completely unjust (and therefore lacking honour), whereas the perfectly unjust person would be seen as perfectly just. Even if we were to concede that our system of honour ought to be distributed according to virtue, it seems contrary to the theory to say that we have a right to honour.

This example also attacks the third premise on the basis that even if a theory can be outlined using the statement ‘to each according to his…’, that does not necessarily mean that it can be understood as conferring a right to something.

To put my criticism of his argument into a simple term (or terms), on the first he is equivocating the terms distributive justice with justice since there could be theories of justice which cannot be written in the form of ‘to each according to his…’. While my second criticism is that he provides no clear reason why all sentences of the above form can be rewritten as a right. He says in defence that “[i]t is obvious that all such principles of justice imply certain rights.” (63) He then goes on to list examples of the well-known theories. My argument is that (2) does not imply (3) in all cases, his premise is not obviously true.

Of course this does not mean, even if his argument is successful, that we do not have any duties to future people. Beckerman says that most of the rights we are concerned with for future people are of the type that are called claim rights, using Hohfeld’s terminology. (56) A claim right is a type of right which has a corresponding obligation tied to it. So if I have a right to clean air, then there must be someone who has a corresponding duty to provide clean air (whether this be some individual or the government). While claim rights have corresponding obligations, rights are not the only way to derive obligations. As an example, Beckerman says that if your neighbour’s house is on fire, you may have an obligation to let your neighbour use your phone without admitting that they have a right to do so.

So, for future people we may still have moral obligations to provide consideration for them without that consideration being a requirement of justice or a right. So not only is it impossible for future people to hold rights, and also impossible for them to be subjects of justice, but (luckily) it is not necessary for them to be so. Many theorists seem to think that our obligations are exhausted by obligations of justice tied to rights, but that leaves out an entire set of obligations.

On this point I agree with Beckerman. For most issues it should be possible for our normal system of moral obligations to deal with issues which arise in the intergenerational sphere. But to reiterate, I do not think that he has given us an argument sufficient to show that intergenerational justice is always an incoherent term.

References:

Beckerman, Wilfred. “The Impossibility of a Theory of Intergenerational Justice.” In Handbook of Intergenerational Justice, edited by Jörg Tremmel, 53-71. Cheltenham, UK: Edward Elgar Publishing, 2006.

Vlastos, Gregory. “Justice and Equality.” In Theories of Rights, edited by Jeremy Waldron, ch.2. Oxford: Oxford University Press, 1984 [originally published 1962].