1 Locke on Limited Government. Philosophy 13 Dick Arneson Consent, legitimacy, well-functioning. Locke seems to hold: 1. A morally legitimate government coerces only those who freely and voluntarily consent to its authority. (See section 95, and elsewhere in the Second Treatise.) Locke also holds that 2. A government that claims absolute, unlimited authority to coerce its subjects cannot be morally legitimate. Are these claims consistent? Suppose people freely and voluntarily consent to accept a government that claims absolute, unlimited authority to coerce its subjects. If consent establishes moral legitimacy, and you are obligated to obey and support a government to which you give free and voluntary consent, then you can be obligated to support and obey a government that claims absolute, unlimited authority. In some passages Locke asserts that no one could rationally consent to an absolutist government. The rational basis for establishing government and submitting to it is to bring it about that fundamental moral rights specified by natural law are upheld (chapter 9). Submitting to absolutist government would make it far more likely that fundamental moral rights, one’s own and those of other people, would be violated (sections 131, 139, and others). Hence, no absolutist government could arise by consent. This won’t do. People might irrationally freely and voluntarily consent to absolutist government. A contract is not generally invalid just because one of the parties made a mistake by signing it. Locke has a better response. He says that one does not have an absolute property right over oneself, one’s own body, a right that would leave one free to commit suicide for any reason or none, to maim or damage oneself for any reason or none. Since we don’t have unlimited rights over our own lives, we are not morally at liberty to transfer such rights to a political ruler by free and voluntary consent. Given this, claims 1 and 2 are consistent. Some commentators urge that for Locke, free and voluntary consent is necessary, not sufficient for political obligation. One cannot be obligated to obey government unless one consents, but a further condition is necessary. 3. A morally legitimate government protects the fundamental moral rights of those it rules. Putting 1 and 3 together, we get Locke’s considered view (so some say): 4. A morally legitimate government, which coerces by right and which those coerced are obligated to support and obey, is one that both (a) coerces only those who freely and voluntarily consent to its authority and (b) protects their fundamental moral rights. Locke says things that suggest 3 and 4, but I see two problems. One problem is that I don’t see anything in Locke’s text that rules it out that people might irrationally consent to an incompetent or malign government that fails to protect fundamental moral rights. Granted, they can’t hand over to such a government rights they do not themselves possess, but they could hand over all the rights they do possess to such a government. If they do, they have bound themselves to obey a government that fails to protect basic moral rights. (If they have given up rights to the government, the government would not strictly speaking be violating their rights when it acted against what would have been their rights but for their voluntarily having relinquished them. Also, people could agree to obey a government that is just incompetent, and fails to protect rights that people have not relinquished.) Moreover, if we buy Locke’s tacit consent doctrine, merely continuing to reside within the jurisdiction of a government and failing to emigrate from its territory constitutes tacit consent to it. A second problem is, what should we say about people who2 irrationally or unreasonably do not consent to a good, competent government that is efficiently promoting and protecting fundamental moral rights? Suppose people should consent to such a government, but fail to do so. According to 4, such a government is morally illegitimate and wrongly coerces its subjects. If we balk at this, we commit to the idea that free and voluntary consent is neither necessary nor sufficient for political obligation and morally legitimate government. Maybe 3 alone suffices for moral legitimacy. ******************************** A government of laws not of individuals. In section 137 Locke says, “Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government.” In a slogan, Locke is saying that a morally legitimate government which rightly claims our allegiance must be a government of laws not men. Locke backtracks from this slogan in interesting ways. In chapter 14 Locke introduces the idea of prerogative—the power of public officials “to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it.” Locke says the good of the people is the supreme law, and so a ruler that acts against the enacted laws in ways that advance the common good is acting rightly, and reasonable members of the society will not complain of such state action. We can distinguish three cases of acting on prerogative: (1) the laws do not specify what to do in a situation that arises, and action is needed quickly, so the public officials cannot wait for new legislation to authorize what they do. (2) the laws actually forbid the action by public officials that is (judged by them to be) what needs to be done to advance the public good, and (3) same as 2, with the addition that the laws explicitly deny public officials authority to invoke prerogative to act against the law in a particular case. I take it Locke holds that public officials might be acting justifiably, in ways that reasonable members of society will endorse, in any of cases 1 through 3. I’m not sure about what Locke thinks about 3. If you accept 3, then prerogative supersedes law and cannot be cabined by law. So do we then have, and need, a government of men (and women) not of law? The difficulty is built into the enterprise of establishing a government of legal rules which are to constrain the actions of the citizens and public officials as well. Legal rules cannot be indefinitely fine-grained. They need to be fairly simple and administratable. We seek to enact legal rules the operation of which will induce