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].

Tremmel’s Theory of Intergenerational Justice – Introductory Chapter

This week I will be reading A Theory of Intergenerational Justice by Joerg Chet Tremmel. It is more recent than the other material I have covered so far, with this book having been published in 2009 (compared to the early 80s for the other material). For the most part I will follow the same general structure as my previous posts, with a brief summary and a small critique, although this post will just do the former. Also note that I will not be covering the second chapter as it deals with the epistemological question of developing definitions, which is useful for reading the book, but not necessary for a summary of his main arguments.

In this introductory chapter, Tremmel sets the stage for intergenerational justice as a field. He explains the lack of a theory of intergenerational justice as the result of the fact that we haven’t needed a comprehensive theory in the past, or that the limited powers of humans hasn’t made a theory necessary. This situation has changed over the last century as we have become more powerful as a species, and we have come to realise that we hold a new power to impact the lives of people far into the future. Whereas our ancestors had the ability to impact the lives of only the next couple generations, we have the power to change the climate for the next ten thousand years.

Philosophers have been slow to develop a theory of intergenerational justice, with the main theorists (e.g. Rawls) have treated intergenerational justice as a minor topic worth only a couple pages. In contrast, Tremmel wants to develop a theory of justice that incorporates intergenerational justice with intragenerational concerns. He says that while mainstream philosophers have ignored the issue, others have gone too far by developing theories that only work with intergenerational justice, or even more restricted to environmental justice, without developing a single comprehensive theory. He also notes the importance of developing a theory in philosophy rather than leaving the study to other fields. Not only does philosophy look at the fundamental definition of justice, it also brings together research from many different fields.

The Rights of Past and Future Persons. By Annette Baier – Summary and Analysis

Summary:

Similar to the last two papers I looked at, this paper deals with obligations to future people and the rights that they might have. Unlike the past two, Baier thinks that it is meaningful to say that future people have rights.

Like De George, Baier asks whether the will of a dead person can be considered an example of the state or government respecting the rights of people who no longer exist. She thinks that it is. It should be noted that neither De George nor Baier give strong reasons for thinking that this is so, with De George just saying that we can appeal to the rights of present people as an alternative (but without giving a positive argument for why). The lack of strong arguments on either side is telling of the dispute given that everything rests on this answer.

In addition to diverging from De George on this point, Baier also introduces the concept of role-based rights. She says that her position as an educator gives her certain duties to indeterminate future students. She has these duties to do things like prepare for the course and order textbooks even before any students have registered for the class. She uses this example to put pressure on the distinction between rights to those who are living and rights to those who will live in the future. In both the case that she describes as an educator, and in the usual case of intergenerational justice, the identity of the people to whom we owe duties is indeterminate. The only difference is that in the first case they indeterminate in their particular identity, whereas in the second they are both indeterminate and do not exist. If the important feature is that they are indeterminate, meaning that these two cases are conceptually identical then both groups should be granted rights based on their role. From this she concludes that conceptually speaking it is not incoherent to speak of rights for future people.

Why, then, should we consider future people to have rights? Baier thinks that we have duties in virtue of the fact that we find ourselves in an intergenerational community. We are interdependent, and we have what has come to be called a form of indirect reciprocity with different generations. We have received benefits from past people, obligating ourselves to pass on at least as much to the future.

She says that there are five considerations that we ought to consider when determining how far our duties go. Also note that she does not actually determine how far our responsibility lies, she only gives us the tools to find out. We need to consider (1) that we are relatively well-off compared to our ancestors, (2) this well-being is dependent, at least in part, on the actions of our ancestors, (3) we have almost absolute control over the future conditions for other generations, (4) compared to past generations, we have a much greater understand of how our actions will impact the future, and (5) that prior savings were made for all posterity, not just for us. From this she concludes that at the very least we have duties to leave the world in at least as good a state as before, and that deliberate destruction of institutions or goods is a violation of the rights of future people.

We form a kind of trusteeship for past generations, ensuring that our actions do not wantonly abandon their projects. Earlier in her paper she used the example of an early generation opening a public university for the good of posterity. If the present generation decided not to maintain the university out of their own self-interest, then such a move would violate the rights of their ancestors, and future people could rightly feel that their rights have been violated. In this way the relationship between the rights of past and future generations is a close one.

Analysis:

The easiest criticism of this paper is that the feeling that I have been wronged does not mean that I have in fact been wronged. If we simply deny that past generations have any claims on us, then we could, referring to the example I just described, let the university fall into ruin without violating anyone’s rights. In the future people may feel that they have been wronged, and they may feel that we ought to have acted differently, but I think that it is inappropriate to derive a duty or right from this feeling, especially considering the original argument (that we have duties to past people) is not well defended.

We could also press Baier on the concept of role-based rights. We could argue that in some broader sense she has duties to actual, determinate people in virtue of her role as a teacher, whether this be to the school itself, or to some other person. I think it was Macklin who said that we can easily think of people as having rights at some point in the future without conceding that they have rights at the moment. Role-based rights could follow a similar principle. As a teacher preparing for a course I could have duties to future students, assuming I have future students, which I need to prepare for even though there is no one who exists now whom I have a duty to. In other words, I’m not convinced that role-based duties or rights would be capable of solving this issue.

The Environment, Rights, and Future Generations. by Richard T. De George – Summary and Analysis

Summary:

De George’s main aim in this paper is to give us arguments for why the common approaches to intergenerational justice are inadequate, but also to give the beginning of a possible solution.

Unlike Macklin, who I just reviewed, De George rejects both the rights approach and the utilitarian approach. Like Macklin, De George also argues that rights cannot apply to future people in virtue of the fact that they do not yet exist. The counterexample that he considers is the way we treat wills of people who have died. According to this objection, a will is respected by the law, apparently granting rights to people who are dead. Since we give rights to those who no longer exist, says the objection, why not give rights to future people as well. De George replies that in these types of cases the law doesn’t actually recognize the rights of people who have recently died, rather, they recognize the right of the currently living to inherit the property of those people.

He also considers whether future people have a right to be born. He argues that future people have no right to come into existence. But he does grant that the more likely it is that a particular person will come into existence, the stronger we should take their interests into account. I take him to be arguing along the lines that our duties to future people are very weak or non-existent when speaking of people in the far-off future, slightly stronger as we approach the present, and very strong (yet not of full rights status) when considering those who will soon be born. But you cannot hold a right to come into existence because you need to exist to have a right to something.

He divides his argumentation against rights into three distinct arguments. I have already mentioned the first, which is that you need to exist in order to have a right. His second argument is that giving rights to future people would undermine the purpose of the rights. He asks us to consider a division of rights to a particular non-renewable resource, oil. Since it is non-renewable it is impossible to use it to an extent that would prevent its running out. If everyone, including those presently existing and those who will exist in the future, have a right to all of the remaining oil, then any use of that oil will deprive future people of their right to it. The result being that no one could ever use the oil that everyone has a right to use, undermining the purpose of the right.

His third argument is that right make impossible demands on us. Either we must draw an arbitrary line separating the future generations who we consider and those we do not, or we take every generation into account, leaving us with almost nothing. This is similar to the argument above, but its force of persuasion is not that it undermines rights, but that it makes rights either too demanding (that we do not use oil) or too complicated (that we determine the limit of rights at a set distance in time from us). These problems lead De George to reject the use of rights for intergeneration justice.

De George also gives us three arguments against the next proposal, the utilitarian calculus. First, we would have to determine just how many generations to include in our calculus. Second, our calculation will depend on how many future generations will actually depend on oil, something that we cannot determine. And third, if we run out of oil we can go back to doing things the way we did them before (I don’t see why this is a problem for the utilitarian method, and he seems to treat it as an advantage). This third objection turns into the much larger issue of whether present generations have a duty to make later generations better off than they (present generations) were themselves. De George doesn’t think so, and while I don’t want to get into the argument right now, it seems that a number of philosophers, including John Rawls, agree with him. Suffice it to say that it would be extremely difficult to include future generations in the utilitarian calculus without any odd consequences.

As a result, De George argues that we cannot owe consideration, either in terms of rights or in our utilitarian calculus, to distant generations. So what do we owe them? At the very least we owe them the vast wealth of knowledge that we have accumulated. In the end our own interests trump those of future generations, but we ought not to completely ignore their interests.

Analysis:

I am going to focus on his suggestion that he gave at the very end of his paper that we have a duty to pass on our knowledge. There wasn’t actually a lot to work with here, so I don’t know the justification for passing on knowledge. He does say that there aren’t any reasons for why we wouldn’t do so, but this does not turn into an obligation. For instance, if I want to cross the street, and someone says to me that I have no reason to cross the street (and let’s say that this is true), I could just cross the street for the sake of doing so. Likewise, if we collectively decide that we don’t want a certain bundle of knowledge to be passed on, not because of the harm it will cause but because we just don’t want others to have it, it seems that we could destroy it.

As I mentioned in my last post, I’m not convinced by the human rights argument, but I do find utilitarian reasoning to be more persuasive in this area. It is unfortunate that his argument against utilitarianism is only a few lines long and without much justification, because someone could respond to his first argument that all generations count, but only in terms of negative utility. We may not have a duty to ensure that people in the future are well-off, but we at least have a duty not to cause harm. This would, of course, get us into the non-identity problem (since the identity of the harmed people would be dependent on our doing the harm), but I don’t think that his arguments are strong enough to reject utilitarian reasoning outright.

Can Future Generations Correctly Be Said to Have Rights? By Ruth Macklin – Summary and Analysis

Summary:

In this article, Macklin argues that future generations cannot properly be said to have rights, but that we ought to still give them moral consideration when acting in the present.

Her main argument is fairly simple, she says that future generations cannot have rights because they do not exist to be subjects of rights. She asks us to compare how we treat duties and rights, stating that these ought to be treated the same way unless we have a good reason to do otherwise. Typically we do not say that non-existent people have duties (I put this too weakly, I have never heard people say this). If a non-existent person cannot have duties then, since duties and rights almost always travel in a single package, non-existent people cannot have rights either.

But, says the critic, we commonly give people or other things rights without giving them duties. Macklin lists the mentally disabled, the young, the sick, and the old, but I would also like to add non-human animals to this list (although all of these are still under dispute, let’s assume that they do in fact have rights). However, according to Macklin these groups have rights solely in virtue of the fact that they are sentient. And, as it turns out, sentience is sufficient for rights, but it is also a necessary condition. So, concedes Macklin, there is a slight asymmetry between rights and duties, but nothing to be worried about as these two still go together in the case at hand.

Assuming that her argument was successful, she concludes that future people cannot have strict rights, but might still be subject to our moral consideration. She says that under a utilitarian type calculus the overall balance of pleasure over pain would take future people into account, so we can give future people some consideration without giving them the strong protection of absolute rights.

Analysis:

The first point of criticism is that the utilitarian calculus might be subject to the same problem as the one she identified for rights (Parfit calls this the non-identity problem). As she said in a footnote, she wants to work within the same framework that Parfit described, so she is certainly aware of the non-identity problem. The problem is that when we speak of maximizing the good, while there aren’t any explicit constraints on how far we can calculate into the future, it seems to me that the calculus could conceivably be restricted to existent sentient beings. I’m not confident on this criticism, and I don’t know what modern scholarship on the non-identity problem says, so I leave this as an open criticism for the moment.

The second point of criticism is against her approach in distinguishing between rights and lesser (utilitarian) morality. In addition to the problem I described above, we might wonder what rights are supposed to do in the context of justice and human rights in general. For instance, we might reject all rights as just a veiled way of saying that ‘such and such judgments of morality are so central to our thought that we give them the name rights’. If that is the case then we might be able to expand ‘rights’ to anything we find central to morality. In other words, describing rights as ontological entities that only living beings can have is a rather limited view of rights.