Michael Davis

This paper is primarily a response to John Simmons's critique of Locke's consent theory of political obligation (Two Treatises). It seeks to apply ordinary legal reasoning to what Locke actually says about "express consent" and "tacit consent." The result is a theory both different from the theory commonly attributed to Locke and more plausible. Among the differences is that express consent ("entering political society") is understood to arise chiefly from seeking to vote (rather than by oath or voting) and tacit consent is understood as a reasonable (but rebuttable) presumption of actual consent. In the course of presenting Simmons's critique, the paper identifies four commonly accepted criteria of adequacy for theories of moral obligation to obey law or government, noting that Locke's theory, under its lawyerly interpretation, fails to satisfy any of the four criteria but seems reasonably plausible (for example, in its ability to deal with Simmons's critique). This is taken to be reason to weaken all four criteria.

This books defends at least three related theses: 1) that social contract originates in medieval practice, not in philosophy ancient or modern; 2) that its original form was actual contract, not hypothetical, and that its actual practice retains actual consent as the basis of political obligation; and 3) that most theorists of social contract before Rousseau can best be read as concerned with actual consent.

Meeting Hampton in heaven, Hobbes, who has kept up with philosophy, explains the central mistakes of her book, Hobbes and the Social Contract. Hampton had three related criticisms: 1) that Hobbes’ understanding of morality, that is to say, the laws of nature, is inconsistent with contract; 2) that the “original covenant” (even understood as Hampton wishes) must generate a relation between ruler and people that is (as Locke argued) one in which the people hire the ruler, control him, and are free to dismiss him at will (a principal-agent relation); and 3) that Hobbes’  understanding of the laws of nature leads to a dilemma in which either the denizens of the state of nature are rational enough to keep agreements in the state of nature and so do not need government or are so irrational that, though they need an absolute government to bring them out of that state, they are not rational enough to keep the agreement that would, if kept, bring them out of it. Beginning with a richer moral theory than Hampton supposed, Hobbes explains why the original covenant must (and can) be a literal contract (not a Hume-style agreement), why the contract does not (and cannot) create a principal-agent relation but something closer to a warden-inmate relation, and why the resulting government is absolute.

Anyone familiar with much of the social-contract literature will have noticed that the sense of “social contract” can differ a good deal from field to field, for example, from political theory
to business or medical ethics, and even from writer to writer in a single field, say, from Locke to Rawls. For some of these senses, we have well-established distinctions, for example, that
between hypothetical and actual contract. For other uses, we have no established distinction. But more significant than any lack of particular distinctions is, I think, the lack of a general
classification of social contracts that brings out fundamental differences between them. That is what this article offers. My classification has two dimensions. One concerns “contract”. “Contract” can be used literally or in some (more or less) extended sense ranging from close analogy to distant metaphor. The literal sense supports one sort of obligation (“formal moral obligation”); the analogical or metaphorical sense (generally) supports another (if it supports any moral
obligation at all). The other dimension concerns “social”. The “society” in “social contract” (whether the contract is literal, analogical, or metaphorical) may be either the result of the contract or a party to it and, whatever its relationship to the contract, the society may be one of several kinds of human association (moral, governmental, legislative, civil, or political). Arguments valid (or sound) for one sort of society may not be for another.

The argument developed here, though not one Nozick has made or is likely to endorse, is implicit in certain principles that are relatively central to the arguments he does make. It is his much as an illegitimate child is its father's, however unintended and disowned.  The argument is simple. But it depends on seeing most so-called free-rider problems from a new angle, that of property. So, I begin by stating a "Lockean theory of property," explaining it and defending it against certain objections. Next, I show that the theory explicates certain intuitions Nozick has about free riders—at the cost of making them intuitions of property rather than of fairness. Having in this way made the new angle familiar, I sketch "Nozick's argument." I conclude with some speculation concerning the argument's importance for nonlibertarians.

This paper not only describes a confusing network of terms (including “political society”,
“commonwealth”, and “community”), thus defining a problem of interpretation,
but also partially solves the problem. One result is that Locke turns out to differ in at
least one important way from those theorists of social contract supposedly belonging
to the same tradition, especially Hobbes, Rousseau, and Rawls. The Two Treatises lacks
any social contract, that is, a contract constituting society in the inclusive sense usually
given “society” in discussions of “social contract”. Locke’s concept of “political society”
deserves a closer look, since it has largely been overlooked until now.

Locke’s Two Treatises of Government is (primarily) a work of practical (or applied) ethics rather than (as commonly supposed) political philosophy or (as some recent historians have argued) political propaganda. The problem is the oath of allegiance to James II. So interpreting it makes political obligation resemble the special moral obligations of profession rather than the general obligations of morality. Political obligation is the formal moral obligation to law that comes from voluntary participation in law-making (directly or through representatives one helps to choose), a form of express consent. Ordinary moral obligations to law, those arising from considerations of justice, are, in contrast, much the same for ordinary residents as for foreign visitors. This is the domain of tacit consent. The right to organize a political society, including the right to exclude, derives from the natural right of free association.