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3.3 The Social Contract Theory

Just as natural rights and natural law theory had a florescence in the 17th and 18th century, so did the social contract theory. Why is Locke a social contract theorist? Is it merely that this was one prevailing way of thinking about government at the time which Locke blindly adopted? I think the answer is that there is something about Locke's project which pushes him strongly in the direction of the social contract. One might hold that governments were originally instituted by force, and that no agreement was involved. Were Locke to adopt this view, he would be forced to go back on many of the things which are at the heart of his project in the Second Treatise. Remember that The Second Treatise provides Locke's positive theory of government, and that he explicitly says that he must do this ”lest men fall into the dangerous belief that “all government in the world is merely the product of force and violence.” So, while Locke might admit that some governments come about through force or violence, he would be destroying the most central and vital distinction, that between legitimate and illegitimate civil government, if he admitted that legitimate civil government can come about in this way. So, for Locke, legitimate civil government is instituted by the explicit consent of those governed. (See the section on Consent, Political Obligation, and the Ends of Government in the entry on Locke's Political Philosophy.) Those who make this agreement transfer to the civil government their right of executing the law of nature and judging their own case. These are the powers which they give to the central government, and this is what makes the justice system of civil governments a legitimate function of such governments.

Ruth Grant has persuasively argued that the establishment of civil government is in effect a two step process. Universal consent is necessary to form a political community. Consent to join a community once given is binding and cannot be withdrawn. This makes political communities stable. Grant writes: “Having established that the membership in a community entails the obligation to abide by the will of the community, the question remains: Who rules?” (Grant, 1987 p. 115) The answer to this question is determined by majority rule. The point is that universal consent is necessary to establish a political community, majority consent to answer the question who is to rule such a community. Universal consent and majority consent are thus different in kind, not just in degree. Grant writes:

Locke's argument for the right of the majority is the theoretical ground for the distinction between duty to society and duty to government, the distinction that permits an argument for resistance without anarchy. When the designated government dissolves, men remain obligated to society acting through majority rule.

It is entirely possible for the majority to confer the rule of the community on a king and his heirs, or a group of oligarchs or on a democratic assembly. Thus, the social contract is not inextricably linked to democracy. Still, a government of any kind must perform the legitimate function of a civil government.


http://plato.stanford.edu/entries/locke/#TwoTreGov

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3.4 The Function Of Civil Government


Locke is now in a position to explain the function of a legitimate civil government and distinguish it from illegitimate civil government. The aim of such a legitimate civil government is to preserve, so far as possible, the rights to life, liberty, health and property of its citizens, and to prosecute and punish those of its citizens who violate the rights of others and to pursue the public good even where this may conflict with the rights of individuals. In doing this it provides something unavailable in the state of nature, an impartial judge to determine the severity of the crime, and to set a punishment proportionate to the crime. This is one of the main reasons why civil society is an improvement on the state of nature. An illegitimate civil government will fail to protect the rights to life, liberty, health and property of its subjects, and in the worst cases, such an illegitimate government will claim to be able to violate the rights of its subjects, that is it will claim to have despotic power over its subjects. Since Locke is arguing against the position of Sir Robert Filmer who held that patriarchal power and political power are the same, and that in effect these amount to despotic power, Locke is at pains to distinguish these three forms of power, and to show that they are not equivalent. Thus at the beginning of Chapter XV Of Paternal, Political and Despotic power considered together he writes: “THOUGH I have had occasion to speak of these before, yet the great mistakes of late about government, having as I suppose arisen from confounding these distinct powers one with another, it may not be amiss, to consider them together.” Chapters VI and VII give Locke's account of paternal and political power respectively. Paternal power is limited. It lasts only through the minority of children, and has other limitations. Political power, derived as it is from the transfer of the power of individuals to enforce the law of nature, has with it the right to kill in the interest of preserving the rights of the citizens or otherwise supporting the public good. Despotic power, by contrast, implies the right to take the life, liberty, health and at least some of the property of any person subject to such a power.


http://plato.stanford.edu/entries/locke/#TwoTreGov

 
3.5 Rebellion and Regicide
 

At the end of the Second Treatise we learn about the nature of illegitimate civil governments and the conditions under which rebellion and regicide are legitimate and appropriate. As noted above, scholars now hold that the book was written during the Exclusion crisis, and may have been written to justify a general insurrection and the assassination of the king of England and his brother. The argument for legitimate revolution follows from making the distinction between legitimate and illegitimate civil government. A legitimate civil government seeks to preserve the life, health, liberty and property of its subjects, insofar as this is compatible with the public good. Because it does this it deserves obedience. An illegitimate civil government seeks to systematically violate the natural rights of its subjects. It seeks to make them illegitimate slaves. Because an illegitimate civil government does this, it puts itself in a state of nature and a state of war with its subjects. The magistrate or king of such a state violates the law of nature and so makes himself into a dangerous beast of prey who operates on the principle that might makes right, or that the strongest carries it. In such circumstances, rebellion is legitimate as is the killing of such a dangerous beast of prey. Thus Locke justifies rebellion and regicide (regarded by many during this period as the most heinous of crimes) under certain circumstances. Presumably this was the justification that was going to be offered for the killing of the King of England and his brother had the Rye House Plot succeeded.


http://plato.stanford.edu/entries/locke/#TwoTreGov

John Locke
Born: 8/29/1632   Died: 10/28/1704

John Locke was a preeminent English philosopher and Enlightenment figure. Though he wrote on a wide range of topics, Locke is best known for his contributions to epistemology and political philosophy, his most influential works being his Essay Concerning Human Understanding and his Treatises of Government. In the Treatises, Locke criticizes absolute monarchy and the theory of the divine right of kings and develops a social contract theory according to which government legitimacy is based on the consent of the governed. Locke's notion of natural rights and the limits of government heavily influenced the drafters of the American Declaration of Independence. In his Essay, Locke undertakes to determine the limits of human understanding, concluding that all the materials of the understanding are derived from experience. Among the most famous parts of this work are his attack on innate ideas, his accounts of simple and complex ideas, substance, and personal identity.

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A Letter Concerning Toleration
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An Essay concerning the true original, extent and end of civil Government
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Some Considerations of the Consequences of the Lowering of Interest and the Raising the Value of Mon
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http://www.epistemelinks.com/Main/TextName.aspx?PhilCode=Lock

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3.5 Rebellion and Regicide


At the end of the Second Treatise we learn about the nature of illegitimate civil governments and the conditions under which rebellion and regicide are legitimate and appropriate. As noted above, scholars now hold that the book was written during the Exclusion crisis, and may have been written to justify a general insurrection and the assassination of the king of England and his brother.
 
The argument for legitimate revolution follows from making the distinction between legitimate and illegitimate civil government.
 
 A legitimate civil government seeks to preserve the life, health, liberty and property of its subjects, insofar as this is compatible with the public good. Because it does this it deserves obedience.
 
An illegitimate civil government seeks to systematically violate the natural rights of its subjects. It seeks to make them illegitimate slaves. Because an illegitimate civil government does this, it puts itself in a state of nature and a state of war with its subjects.
 
The magistrate or king of such a state violates the law of nature and so makes himself into a dangerous beast of prey who operates on the principle that might makes right, or that the strongest carries it. In such circumstances, rebellion is legitimate as is the killing of such a dangerous beast of prey. Thus Locke justifies rebellion and regicide (regarded by many during this period as the most heinous of crimes) under certain circumstances. Presumably this was the justification that was going to be offered for the killing of the King of England and his brother had the Rye House Plot succeeded.


http://plato.stanford.edu/entries/locke/#RebReg