¹ References not otherwise explained will be to Locke, John, Two Treatises of Government, ed. Laslett, Peter (Cambridge, 1960)Google Scholar. Numerals refer to sections, or to sections and lines, of the Second Treatise. E.g., “135” means section 135, “65:25–6” means lines 25–6 of section 65.

² Plato and Aristotle considered consent, the rule of law, and orientation to the public good as possible criteria of good government, and decided that the third is basic; see Plato Pol. 291e ff.; Aristotle Pol. 1282 b 1–15, 1279 a 18–32. Plato's remarks on consent as distinguishing kingship from tyranny (Pol. 276e) were echoed by Aristotle (Pol. 1285 b 2, 1295 a 17 and 22, 1313 a 5 and 15), and thus came down to the Middle Ages; see Marsilius of Padua, Defensor Pacis, trans. Gewirth, A. (New York, 1956), p. 32Google Scholar. (Notice Marsilius also on the rule of law [ibid., pp. 37–41; cf. Locke, 136–37]). On consent in medieval writers see Sigmund, Paul E., Nicholas of Cusa and Mediaeval Political Thought (Cambridge, Mass., 1963)CrossRefGoogle Scholar, chaps. 4 and 6. On consent in early modern writers see Skinner, Q., Foundations of Modern Political Thought (Cambridge, 1978)Google Scholar, 2:121–22, 161–66, 320–21, 329–31. By Locke's time the doctrine that political authority exists by consent for the public good was commonplace, as were many other elements of Locke's theory, though as far as I know not his use of the notion of private judgment. How much of the tradition Locke knew at firsthand, and how much was “in the air,” I am not historian enough to trace. Comparisons in this paper are to illustrate philosophical possibilities, not to affirm historical influence.

³ This is noted by Dunn, John, “Consent in the Political Theory of John Locke,” The Historical Journal, 10 (1967), 154.CrossRefGoogle Scholar

⁴ For an illuminating analysis of the relations between obligation, authority, power and consent see Beran, H., “In Defense of the Consent Theory of Political Obligation and Authority,” Ethics, 87 (1977), 260–271.CrossRefGoogle Scholar

⁵ See Locke, 135:27–38, and compare Thomas Aquinas, Summa Theologiae 1–2, 95, 2 and Skinner, Foundations, 2:149. Locke might have agreed that positive law need not be a deduction from natural law but may be derived per modum determinationis.

⁶ Whether Locke held (a) that positive legislation can do no more than interpret and determine natural law, or (b) that it can further the public good in any way consistent with natural law, is unclear (see 135). He probably held (a), i.e., that the positive law furthers the public good precisely by interpreting and enforcing natural law. If he held (b) a clause would have to be added to the definition of political power: “and to make and enforce other laws, consistent with natural law, which further the public good.” This would make no difference to the argument of the rest of the paper.

⁷ Locke's definition of political power in section 3 (and compare 65:25–6, 69:14–16) is of power in what I call the narrow sense. When he says at 95:3 and 119:3 that political power rests on consent, I take him to mean political power in the large sense, part of which (viz., political authority) does presuppose consent.

⁸ This is not mentioned in Two Treatises; see the Letter Concerning Toleration (Indianapolis, 1950), p. 48 (quoted below, text to n. 18). Cf. Acts 5:29.

⁹ Locke writes as if mankind consists of men, and generally I will follow suit — otherwise it might look as if Locke had taken a position on a question I do not think occurred to him. But notice that nothing in Locke's theory as I interpret it implies any difference of political rights or duties between men and women, and that it rules out at least the absolute forms of the subjection of women.

¹⁰ Apparently there is a duty to enforce only this provision. Duties to God and moral duties as such are not enforced by human agency, or by God in this life, though they are part of the law of nature. See Toleration, pp. 30, 42, 43, 46–48. Compare Marsilius of Padua, Defensor Pacis, pp. 163–73, and (for Luther) Skinner, Foundations, 2:175.

¹¹ For earlier use of “property” in this wide sense see Skinner, Foundations, 2:328. The wide sense of life perhaps comes from Aristotle, who said that the state exists “for the sake of a good life” (Pol 1252b 27, etc.); according to Marsilius it exists for sufficiency of life on this earth (Defensor Pacis, 13) — cf. Locke's “conveniencies of life” (34:3). What these terms cover Locke elsewhere calls “civil interests” (Toleration, p. 17).

¹² The basis of this duty is that all creatures belong to God because he made them (6:12–15). See Gauthier, David, “Why Ought One Obey God? Reflections on Hobbes and Locke,” Canadian Journal of Philosophy, 7 (1977), 425–446CrossRefGoogle Scholar. Compare Aquinas, Thomas, On the Truth of the Catholic Faith, book 3, part 1, trans. Bourke, V. J. (New York, 1956), pp. 31–32.Google Scholar

¹³ On ranks of creatures see Nozick, R., Anarchy, State and Utopia (New York, 1974), pp. 45–47.Google Scholar

¹⁴ My “at least” is not in Locke's text, and neither is Cox's “only” (“A man is bound to preserve the rest of mankind as much as he can, but only ‘where his own preservation comes not in competition’ ”; Cox, R. H., Locke on Peace and War [Oxford, 1960], p. 83)Google Scholar. This text leaves the question open, but I believe that my interpretation is borne out by 16:7 and 10:10, and by the fact that Locke clearly expects us to accept risks to preserve others.

¹⁵ It might be helpful to distinguish between “relative” and “absolute” states of nature: two persons, natural or artificial, are in the state of nature in relation to one another when they have no common superior on earth (9, 14, 145); a person is in the state of nature absolutely if he is in the state of nature in relation to every other person. The state of nature is in effect a privative term, defined by contrast with civil society: persons are in the state of nature when they do not have a common superior on earth to settle their disputes (19:6–9). Notice (1) “common,” someone superior to both — the judge is not to be one of the parties to the dispute, since he cannot be his own superior; (2) “on earth” — God is everyone's superior, but he does not adjudicate and enforce his decisions in this life (see note 10 above).

¹⁶ “Private judgment” was a term used in controversy between Catholics and Protestants. Catholics argued that God must have given authority to the Church and not left his will to be interpreted by each person's private judgment. Protestants denied this. Locke was so to speak a Catholic in political matters, but in religious matters he saw no likelihood of damage for lack of an authoritative interpreter provided that religious obligations are not enforced in this world; see note 10 above.

¹⁷ “For all force … belongs only to the magistrate, nor ought any private persons at any time to use force unless it be in self-defense against unjust violence” (Toleration, p. 23). For the “unless” clause see section four below.

¹⁸ Toleration, p. 48. Locke follows the traditional Protestant doctrine of passive obedience with two differences, the qualification “in political matters, for the common good,” and the basing of obligation upon consent.

¹⁹ Hobbes, Thomas, Leviathan, ed. Macpherson, T. B. (Harmondsworth, 1968), pp. 353–354.Google Scholar

²⁰ Notice the distinction between officeholder and office; see Ullman, W., Mediaeval Political Thought (Harmondsworth, 1975), p. 26.Google Scholar

²¹ Toleration, p. 49.

²² For precedents see Skinner, , Foundations, 2:198–199, 202, 222–23, 224, 235Google Scholar. Some medieval writers had held that a heretical or notoriously sinful pope ipso facto ceased to be pope; see McGrade, A. S., The Political Thought of William of Ockham (Cambridge, 1974), pp. 51–52.CrossRefGoogle Scholar

²³ This answers Hanna Pitkin's question whether by continuing to live under a tyranny one becomes obliged to obey the tyrant (see her “Obligation and Consent,” in Philosophy, Politics and Society: Fourth Series, ed. Laslett, P., Runciman, W. G. and Skinner, Q. [Oxford, 1972], p. 54)Google Scholar. Political obligation is owed to the community as duly represented, and not to its original or current form of government except qua representative: but a tyrant does not duly represent the community. Note that what each person consents to in joining a society is not “precisely the positive law-making system” or “more precisely … a continuing decision procedure.” (J. Dunn, “Consent in the Political Theory of John Locke,” p. 164), but to obey the community as represented in whatever way the majority consents to from time to time. This explains and justifies the ‘elision’ Dunn remarks on (ibid., p. 171) in Locke's statement that a person can only be taxed “with his own consent, i.e., the consent of the majority, giving it either by themselves or their representatives” (140).

²⁴ Dissolution of the government may be due to a calamity that dissolves the community (121:18, 211:9f), but dissolution “from within” (212) leaves the community intact. According to Edmund Burke the compact which incorporates the community also determines its form of government; the dissolution of the government therefore returns members to the state of nature, and individuals may opt out of any new arrangement; see An Appeal from the New to the Old Whigs, in The Works of Edmund Burke, ed. Rafferty, F. W. (Oxford, 1907), 5:90, 97–99Google Scholar. This is not Locke's theory.

²⁵ It had long been debated whether, by a lex regia, the people give up their power completely and permanently, or delegate it so that they keep the right to direct in detail and to revoke the delegation at will. See Gierke, O., Political Theories of the Middle Age, trans. Maitland, F. W. (Cambridge, 1900), pp. 43–46, 150–53Google Scholar; Carlyle, R. W. and Carlyle, A. J., A History of Mediaeval Political Theory in the West (Edinburgh, 1903–1936), 2:60–67; 5:49; 6:13–19Google Scholar. Compare Plutarch, Life of Tiberius Gracchus, 15. To this question Locke gave a compromise answer which others had given before (see Gierke, Mediaeval Political Theory, p. 151. n. 164; McGrade, Ockham, pp. 106–107; Skinner, Foundations, 2:128; and Selections from Three Works of Francisco Suarez, S. J., trans. Williams, G. L., Brown, A., Waldron, J. and David, H. (Oxford, 1944), 2:387)Google Scholar. According to this compromise the people do give their power up and cannot intervene in detail or revoke the grant at will, but they can revoke it if the ruler becomes a tyrant. Tyranny “is always understood to be exempted from the original agreement”; Suarez, Selections, p. 718, and cf. p. 855.

²⁶ The argument that “it is necessary the Body should move that way whither the greater force carries it, which is the consent of the majority” (96:8–10) does not imply equal votes but rather recognition of unequal force, e.g., in accordance with the balance of property. Perhaps Locke is thinking of the valentior pars rather than a majority in the democratic sense.

²⁷ They need not meet and vote. Express consent is required for membership (122:21), but perhaps tacit consent or acquiescence is enough in choosing a form of government. If the government is dissolved and the leaders of the revolution, or some surviving elements of the old government, set up a new regime or reestablish the old one, it may be enough if the majority acquiesce without a plebiscite.

²⁸ This sort of flexibility is also characteristic of many medieval theories, in which it is provided for example by: (a) Ockham's regulariter vs. casualiter distinction; (b) Aristotle's notion of epieikeia together with the idea that authority is given for edification not destruction; (c) such maxims as salus populi suprema lex and “necessity knows no law” (quod non est licitum lege necessitas facit licitum became a rule of Canon Law); (d) application to church and state of the civil law of corporations, which provided that the surviving members of a corporation can exercise its powers when its head cannot. See Sigmund, Nicholas of Cusa, pp. 96–99, 181; McGrade, Ockham, pp. 73, 78–80, 164; Tierney, B., “Ockham, the Conciliar Theory and the Canonists,” Journal of the History of Ideas, 15 (1954), 44CrossRefGoogle Scholar; Tierney, B., Foundations of the Conciliar Theory (Cambridge, 1955), pp. 77, 128–30, 168, 222–25 (notice the idea of a “quasi vacancy”).Google Scholar

²⁹ In view of the possibilities mentioned in notes 26–28 men of property had no need to fear that on Locke's theory a quasi-vacancy of the throne would require a constitutional convention including common people (Franklin, J. H., John Locke and the Theory of Sovereignty [Cambridge, 1978], pp. 102ff)Google Scholar. A convention would be required only on the novel and arbitrary “Lawsonian” principle that no branch of government can ever assume any function of another (ibid., p. 122n), to which (as the text above shows) Locke did not subscribe.

³⁰ Compare Locke's argument against giving the magistrate power in religion: “Nor can it be thought that men should give the magistrate power to choose for them their way to salvation, which is too great to give away …” (Essay Concerning Toleration, in Bourne, Henry Fox, The Life of John Locke [London, 1876], 1:176–177)Google Scholar. Compare Hobbes, Leviathan, p. 700. Why is the importance of a decision a reason for insisting on one's own judgment?

³¹ Compare Suarez, Selections, pp. 715, 716; and contrast Hobbes, Leviathan, p. 270.

³² On the natural right to oppose force to force and on resistance to an unjust judge see Skinner, Foundations, 2:124–27. Some canon and civil lawyers had already made irreparability of damage the criterion of the right to resist; for example, Cinus de Pistorio wrote, “Aut est tale factum, quod reparari potest periudicem appellationis, et tune expectabitur suum remedium, aut non potest reparari, et tune sibi de facto resistetur” (see Scheible, Heinz, ed., Das Widerstandsrecht als Problem der deutschen Protestanten 1523–1546 [Gutersloh, 1969], pp. 64–65).Google Scholar

³³ Sections 208, 209 and 230 refer not to the existence of a right to resist but to the likelihood that it will be exercised. Whether an individual acting on his own private judgment could kill a tyrant was a controversial question; see Suarez, Selections, 2:705–25. Unlike Suarez, Locke attributes to private individuals a right of punishment in the state of nature; but since this is a right which upon joining in civil society they wholly give up (130), and since dissolution of government does not dissolve civil society (211), the right Locke attributes to private citizens against a tyrant is a right of war, not of punishment. In this he agrees with Suarez, who also holds that a private individual has a natural right to defend his own body, and that of any other innocent person, against actual attack. However, Suarez distinguishes between attacks on individuals and attacks upon the commonwealth (which he thinks may not involve actual attack on the bodies of individuals), between an actual attack and fear of possible future attack, and between beginning a war and fighting when attacked, and he argues that to begin a war against a king because he has attacked the commonwealth, or may possibly attack individuals, requires authorization by the commonwealth acting through its other organs (or, presumably, through organs set up ad hoc). Locke does not make such distinctions, and even disparages them (see 210, 220:10–23, 225, 230), leaving it to be understood that the right of defense allows private individuals to initiate rebellions.

³⁴ Compare note (21) above. Suarez also held that for some things such as heresy a king is ipso facto deposed, but (like most medieval writers on the case of a heretical pope) thought that a trial and declaratory judgment by some representative of the commonwealth is still necessary; see Suarez, Selections, 2:717, and Tierney, Conciliar Theory, pp. 213–16.

³⁵ In fact, as I will suggest below, ordinarily the community may not need members committed to obeying the law as a matter of conscience.

³⁶ Compare Suarez, , Selections, 2:402–406.Google Scholar

³⁷ On consent in Locke see John Dunn, “Consent in the Political Theory of John Locke,” and Hannah Pitkin, “Obligation and Consent,” pp. 53–57; Dunn endorses Pitkin's account of the structure of the concept (p. 182, n. 117). My reading of Locke is different. In my opinion he must mean actual consent (express or tacit), not hypothetical; a person does not consent, even tacitly, merely by doing something that others may reasonably construe as making him liable to certain rules (see Dunn, pp. 160, 163 (point (4)), 168). I am not persuaded by Hanna Pitkin's argument that lack of choice in the terms of the contract makes personal consent irrelevant: even if there is only one possible contract, it matters whether one subscribes or not — it makes the difference between being a member and being a mere resident. At stage 2 (see above) there is a choice, in which a member's preference counts while a mere resident's does not.

³⁸ For some of these criticisms and others see Plamenatz, J., Man and Society (London, 1963), 1:241–249Google Scholar, and R. Nozick, Anarchy, p. 174ff. Certain traditional criticisms are obviated by the reinterpretation convincingly argued by Waldron, J., “Enough and as Good Left for Others,” The Philosophical Quarterly, 29 (1979), 319–328CrossRefGoogle Scholar; what Nozick has called the “Lockean proviso” is in Locke's theory not a proviso.

³⁹ Cf Sidgwick, H., The Methods of Ethics (New York, 1966), pp. 276–277.Google Scholar

⁴⁰ Cf. David Hume, Treatise of Human Nature, bk. 3, pt. 2, sec. 9, and “Of Passive Obedience” in Essays Moral and Political. Hume's theory is Locke's generalized, without any special place given to promises. As I have argued, Locke's conclusion does not rest on the proposition that political obligation arises only from a promise, but on the proposition that rights which even an explicit promise would not abrogate will not be abrogated or overridden in any other way (see above).

⁴¹ On possibilities of coordination without directing authority see Schelling, T., The Strategy of Conflict (Cambridge, Mass., 1963)Google Scholar, Mackie, J. L., “The Disutility of Act-Utilitarianism,” The Philosophical Quarterly, 23 (1973), 289–300CrossRefGoogle Scholar; and Gauthier, David, “Coordination,” Dialogue, 14 (1975), 195–221.CrossRefGoogle Scholar

⁴² It is sometimes argued that by voting or other participation a person incurs political obligation (unless he openly rejects it beforehand), since he must know that the others would not allow him to participate unless they assume he holds himself obliged by the outcome; see, for example, Weale, A., “Consent,” Political Studies, 26 (1977), 6–77, esp. pp. 71–72, 75–76Google Scholar. But it could just as well be argued that, if the others do not demand a pledge beforehand, since they must know that some people may acknowledge no duty in conscience to abide by the outcome, then they must be willing to accept participation without commitment. Since we can expect most decisions to be carried out anyway, for example by officials motivated by conscience, self-interest or habit, whether those opposed to the decision feel bound in conscience or not, it is simply not true that political practices make sense only on the assumption that all participants acknowledge political obligation.

⁴³ Rawls, John, in A Theory of Justice (Oxford, 1972), pp. 333–337, 354Google Scholar, argues that behind the veil of ignorance people will decide to acknowledge a natural duty to obey the law. I suggest that they will not, but will decide whether to assume a political obligation when they know more about the circumstances.