The other main type of theory–of which Locke is a representative –maintained that civil government is the result of a contract, and is an affair purely of this world, not something established by divine authority. Some writers regarded the social contract as a historical fact, others as a legal fiction; the important matter, for all of them, was to find a terrestrial origin for governmental authority. In fact, they could not think of any alternative to divine right except the supposed contract. It was felt by all except rebels that some reason must be found for obeying governments, and it was not thought sufficient to say that for most people the authority of government is con-
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venient. Government must, in some sense, have a right to exact obedience, and the right conferred by a contract seemed the only alternative to a divine command. Consequently the doctrine that government was instituted by a contract was popular with practically all opponents of divine right of kings. There is a hint of this theory in Thomas Aquinas, but the first serious development of it is to be found in Grotius.
The contract doctrine was capable of taking forms which justified tyranny. Hobbes, for example, held that there was a contract among the citizens to hand over all power to the chosen sovereign, but the sovereign was not a party to the contract, and therefore necessarily acquired unlimited authority. This theory, at first, might have justified Cromwell’s totalitarian State; after the Restoration, it justified Charles II. In Locke’s form of the doctrine, however, the government is a party to the contract, and can be justly resisted if it fails to fulfil its part of the bargain. Locke’s doctrine is, in essence, more or less democratic, but the democratic element is limited by the view (implied rather than expressed) that those who have no property are not to be reckoned as citizens.
Let us now see just what Locke has to say on our present topic.
There is first a definition of political power:
“Political power I take to be the right of making laws, with penalty of death, and consequently all less penalties for the regulating and preserving of property, and of employing the force of the community in the execution of such laws, and in the defence of the commonwealth from foreign injury, and all this only for the public good.”
Government, we are told, is a remedy for the inconveniences that. arise, in the state of nature, from the fact that, in that state, every man is the judge in his own cause. But where the monarch is a party to the dispute, this is no remedy, since the monarch is both judge and plaintiff. These considerations lead to the view that governments should not be absolute, and that the judiciary should be independent of the executive. Such arguments had an important future both in England and in America, but for the moment we are not concerned with them.
By nature, Locke says, every man has the right to punish attacks on himself or his property, even by death. There is political society
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there, and there only, where men have surrendered this right to the community or to the law.
Absolute monarchy is not a form of civil government, because there is no neutral authority to decide disputes between the monarch and a subject; in fact the monarch, in relation to his subjects, is still in a state of nature. It is useless to hope that being a king will make a naturally violent man virtuous.
“He that would have been insolent and injurious in the woods of America would not probably be much better in a throne, where perhaps learning and religion shall be found out to justify all that he shall do to his subjects, and the sword presently silence all those that dare question it.”
Absolute monarchy is as if men protected themselves against polecats and foxes, “but are content, nay think it safety, to be devoured by lions.”
Civil society involves the rule of the majority, unless it is agreed that a greater number shall be required. (As, for example, in the United States, for a change in the Constitution or the ratification of a treaty.) This sounds democratic, but it must be remembered that Locke assumes the exclusion of women and the poor from the rights of citizenship.
“The beginning of politic society depends upon the consent of the individuals to join into and make one society.” It is argued–somewhat half-heartedly–that such consent must, at some time, have actually taken place, though it is admitted that the origin of government antedates history everywhere except among the Jews.
The civil compact which institutes government binds only those who made it; the son must consent afresh to a compact made by his father. (It is clear how this follows from Locke’s principles, but it is not very realistic. A young American who, on attaining the age of twenty-one, announces “I refuse to be bound by the contract which inaugurated the United States” will find himself in difficulties.)
The power of the government by contract, we are told, never extends beyond the common good. A moment ago I quoted a sentence as to the powers of government, ending “and all this only for the public good.” It seems not to have occurred to Locke to ask who was to be the judge of the common good. Obviously if the government is the judge it will always decide in its own favour. Presumably
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Locke would say that the majority of the citizens is to be the judge, But many questions have to be decided too quickly for it to be possible to ascertain the opinion of the electorate; of these peace and war are perhaps the most important. The only remedy in such cases is to allow to public opinion or its representatives some power–such as impeachment–of subsequently punishing executive officers for acts that are found to have been unpopular. But often this is a very inadequate remedy.
I quoted previously a sentence which I must now quote again:
“The great and chief end of men uniting into commonwealths, and putting themselves under government, is the preservation of their property.”
Consistently with this doctrine Locke declares that:
“The supreme power cannot take from any man any part of his property without his own consent.”
Still more surprising is the statement that, although military commanders have power of life and death over their soldiers, they have no power of taking money. (It follows that, in any army, it would be wrong to punish minor breaches of discipline by fines, but permissible to punish them by bodily injury, such as flogging. This shows the absurd lengths to which Locke is driven by his worship of property.)
The question of taxation might be supposed to raise difficulties for Locke, but he perceives none. The expense of government, he says, must be borne by the citizens, but with their consent, i.e., with that of the majority. But why, one asks, should the consent of the majority suffice? Every man’s consent, we were told, is necessary to justify the government in taking any part of his property. I suppose his tacit consent to taxation in accordance with majority decision is presumed to be involved in his citizenship, which, in turn, is presumed to be voluntary. All this is, of course, sometimes quite contrary to the facts. Most men have no effective liberty of choice as to the State to which they shall belong, and very few have liberty, nowadays, to belong to no State. Suppose, for example, you are a pacifist, and disapprove of war. Wherever you live, the government will take some of your property for warlike purposes. With what justice can you be compelled to submit to this? I can imagine many answers, but I do not think any of them are consistent with Locke’s principles. He thrusts in the maxim of majority rule without adequate consideration, and offers
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no transition to it from his individualistic premisses, except the mythical social contract.
The social contract, in the sense required, is mythical even when, at some former period, there actually was a contract creating the government in question. The United States is a case in point. At the time when the Constitution was adopted, men had liberty of choice. Even then, many voted against it, and were therefore not parties to the contract. They could, of course, have left the country, and by remaining were deemed to have become bound by a contract to which they had not assented. But in practice it is usually difficult to leave one’s country. And in the case of men born after
