Rawls J. Lectures on the History of Political Philosophy

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the root of his argument against royal absolutism: his idea is that a political

authority of that kind could never arise by consent.

6. I conclude by remarking that Locke’s underlying thought throughout

is that we belong to God as God’s property; that our rights and duties de-

rive from God’s ownership of us, as well as from the purposes for which we

are made, which purposes are for Locke clear and intelligible in the funda-

mental law of nature itself.

This deserves emphasis because Locke is often discussed apart from this

religious background; and for much of the time I shall do the same. Today

various views are called “Lockean” which actually have rather little connec-

tion with Locke. A view that stipulates various rights of property without

the kind of derivation that Locke gives for them—as in Nozick’s in Anarchy,

State and Utopia

—is often so described. Yet for Locke and his contemporar-

ies this religious background is fundamental, and to neglect it is to risk seri-

ously misunderstanding their thought. So I call your attention to it here.

Locke seems to have thought that those who do not believe in God, and

who have no fear of God’s judgments and divine punishments, cannot be

trusted: they are dangerous and liable to violate the laws of common rea-

son that follow from the fundamental law of nature, and to take advantage

of shifting circumstances as suits their interests.

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18. Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974).

19. See Locke’s A Letter Concerning Toleration, ed. James H. Tully (Indianapolis:

Hackett, 1983). Also on this point, see John Dunn, “The Concept of ‘Trust’ in the Politics

of John Locke,” in Philosophy in History (Cambridge: Cambridge University Press, 1984),

p. 294.

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His Account of a Legitimate Regime

§1. Resistance under a Mixed Constitution

1. Recall that in Lecture I, Locke was contrasted with Hobbes. Hobbes

is concerned with the problem of destructive civil war, and he uses the idea

of the social contract as a point of view from which to argue that given our

basic interests, including our transcendent religious interest in salvation, all

have sufﬁcient reasons (based on those interests) to support an effective

and, in Hobbes’s view, necessarily absolute sovereign, whenever such a sov-

ereign exists (Locke Lecture I: §1.3).

Locke’s aim is very different. He wants to defend the cause of the ﬁrst

Whigs in the Exclusion Crisis of 1679–81.

His problem is to formulate the

right of resistance to the Crown under a mixed constitution, as the English

Constitution was then regarded. Locke’s argument is that Charles II, by his

abuse of the prerogative

and other powers, has conducted himself as an

absolute monarch and has thereby dissolved the regime, so that all of its

powers, including those of Parliament, return to the people. Government is

a ﬁduciary power, a power held on trust from the people under the social

compact; and when that trust is violated, the people’s constituent power (as

I shall call it) once again comes into play.

2. To explain: let’s deﬁne a mixed constitution as one in which two

or more constitutional agents share in the legislative power; in the English

case these agents are the Crown and Parliament. Neither is supreme: rather

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1. For a long time, it was assumed that the Second Treatise was written after the revolu-

tion of 1688, as a justiﬁcation of it. According to Laslett, however, the original part of the

Second Treatise was written in 1679–80 and includes Chs. 2–7, 10–14, and 19, with other

chapters added later, some in 1681 and 1683, and others later in 1689. See Laslett’s Intro-

duction to Two Treatises of Government, p. 65.

2. The power to act according to discretion, for the public good, without the prescrip-

tion of the law, and sometimes even against it, is called the Prerogative. See ¶160.

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they are coordinate powers. Legislation cannot be enacted without the

Crown’s consent, as the Crown must approve proposed statutes before

they become law. On the other hand, the Crown cannot govern without

Parliament, on whom it depends for tax monies to run the government bu-

reaucracy, support the army, and so on. And it is the duty of the Crown to

enforce the laws enacted by Parliament with its approval, as well as to con-

duct foreign affairs and defense. The Crown combines what Locke calls the

executive and the federative powers.

Thus, we have two constitutional agents who, as coordinate powers, are

equal in this sense: neither is subordinate to the other and when there is a

conﬂict between them, there is no constitutional means, no legal frame-

work within the constitution, for settling the conﬂict. Locke recognizes this

clearly in ¶168, the important paragraph that ends Chapter 14. Here he as-

serts the right of resistance on the part of the people in such a situation.

The source of Locke’s constitutional doctrine seems to be a work by

George Lawson: Politica sacra et civilis (Religious and Civil Polity) of 1657

(published in 1660).

Lawson’s view is that when in a mixed constitution

there is a persistent conﬂict between Crown and Parliament, the govern-

ment itself is dissolved and all of its powers return to the political commu-

nity as a whole. The people are then free to exercise their constituent

power and to take the necessary steps to eliminate the conﬂict and to re-

store the traditional constitution, or else to establish a new and different

form of regime. Locke’s ﬁrst statement of Lawson’s view is in ¶149, which

must be read with the four paragraphs (¶¶150–153) that follow. Observe

that Locke is very careful to say that the Crown is a coordinate power with

a share in the legislative power and not subject to laws without its own con-

sent. Thus in “a tolerable sense” the Crown may be called “supreme”

(¶151). This was the Whig view then widely held, and differs from the later

doctrine of parliamentary supremacy.

3. Locke uses the idea of the social compact (a term he often uses) as a

point of view from which we can see how a mixed regime could legiti-

mately arise. The original compact, or compact of society, unites the peo-

ple into one society and at the same time establishes a form of regime with

political authority.

Two points about this: ﬁrst, the social compact is unanimous, for in vir-

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3. On Lawson, an innovative ﬁgure, see the excellent study by Julian Franklin, Locke’s

Theory of Sovereignty (Cambridge: Cambridge University Press, 1978), Ch. 3. On this see

esp. pp. 69–81.

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tue of it all join into one civil society for the purpose of establishing a polit-

ical regime; second, political power in the form determined by the majority

is a ﬁduciary power entrusted for certain ends (¶149). The compact of soci-

ety is, then, a compact of the people with each other to establish a govern-

ment; it is not a compact between the people and the government or its

agents. That the legislative power is a ﬁduciary power emphasizes that the

constituent power of the people always exists and cannot be alienated. In

the case of a conﬂict between constitutional powers, or between the gov-

ernment and the people, it is the people who are to judge (¶168). In doing

so they exercise once again their constituent power. If the Crown or Parlia-

ment arouse the people to action, Locke says they have only themselves to

blame (¶¶225–230).

§2. Locke’s Fundamental Thesis concerning Legitimacy

1. I now turn to Locke’s fundamental thesis about how the doctrine of

the social compact imposes limits on the nature of legitimate regimes. The

basic idea of this doctrine—that legitimate political power can only be

founded on consent—is repeated throughout the Second Treatise. The state-

ment in ¶95 is suitable for our purposes. It reads in part:

Men being, as has been said, by Nature, all free, equal and indepen-

dent, no one can be put out of this Estate, and subjected to the Politi-

cal Power of another, without his own Consent. The only way whereby

any one divests himself of his Natural Liberty, and puts on the bonds of

Civil Society is by agreeing with other Men to join and unite into a

Community for their comfortable, safe, and peaceable living one

amongst another, in a secure Enjoyment of their Properties, and a

greater Security against any that are not of it. This any number of

Men may do, because it injures not the Freedom of the rest...When

any number of men have so consented to make one Community or Gov-

ernment, they are thereby presently incorporated, and make one Body

Politic, wherein the Majority have a Right to act and conclude the rest.

Note that in this passage Locke is describing what we may call “origi-

nating” as opposed to “joining” consent. Originating consent is that con-

sent given by those who initially establish one body politic through a social

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compact; whereas joining consent is that given by individuals as they reach

the age of reason and consent to join this or that existing political commu-

nity. This distinction is important when we note Hume’s criticism of Locke

in “Of the Original Contract” (1752). Locke takes for granted that we can

subject ourselves to political authority by our own consent. His thesis is

rather that, regarding the state of nature as a state of equal freedom, we

can become subject to political authority in no other way. Thus, as we shall

see, absolute government is always illegitimate.

2. To develop Locke’s view, recall his deﬁnition of political power: “a

Right of making Laws with Penalties 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 de-

fense of the Commonwealth from Foreign Injury, and all this only for the

Public Good” (¶3).

As this deﬁnition shows, political power is not strength or force but a

complex of rights possessed by a political regime. Of course, to be effective,

such a regime must have coercive, or sanctioning power—that is, the right,

suitably limited, to exercise force and to impose sanctions to enforce laws,

and so on. But for Locke, political power is a form of legitimate authority

appropriately related to the state of equal freedom and bounded by the fun-

damental law of nature.

3. Note that Locke’s thesis that the only basis of legitimate government

is consent applies only to political authority. He does not hold what we

might call a consensual (or contractualist) account of duties and obligations

generally.

Many of the duties and obligations he recognizes do not arise

from consent:

(a) To start with the most obvious case: our duties to God arise from

God’s right of creation; it would be sacrilegious—indeed preposterous—to

suppose they arise from consent. The same holds for our duty to comply

with the laws of nature and all the duties and obligations that follow from

it. More speciﬁcally:

(b) Our duty to honor and respect our parents (as discussed in Ch. 6 on

Paternal Power) is not consensual; and moreover, this duty is perpetual.

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4. An example of such a view, although it must be carefully interpreted, is T. M.

Scanlon’s contractualism. See his essay in Utilitarianism and Beyond, ed. Amartya Sen and

Bernard Williams (Cambridge: Cambridge University Press, 1982); also his book What We

Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998).

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Not even a king is released from his duty to honor and respect his mother

(¶¶66, 68). Thus, while our reaching the age of reason brings to an end our

subjection to parental authority, it does not affect certain other duties and

obligations we owe our parents.

ture—land, its fruits, etc.—does not arise from consent, but from the pre-

cepts of natural law that apply in that state in accordance with the laws of

nature, as I discussed in the ﬁrst lecture. Here we assume that these pre-

cepts are generally followed and that people’s properties, for example real

properties, are acquired legitimately, and that the various provisos (stated

by Locke in Ch. 5) have been satisﬁed.

(d) Finally, the fundamental law of nature imposes a duty to give special

weight to the safety of the innocent (the righteous or just) (¶16). In ¶183

Locke argues that a victor, even in a just war of self-defense in which the

victor’s actions are entirely justiﬁed, must recognize the claims of the wives

and children of those who unjustly made war against him. They are among

the innocent; and the victor must also recognize what Locke calls the “na-

tive right” of the defeated to be free in their own persons and to continue

to own their own properties and to inherit their father’s goods, assuming

they did not wrongfully assist the loser (¶¶190–194). These rights the victor

must recognize are rooted in the fundamental law of nature.

There are many duties and obligations, then, that do not arise from

consent. With the exception of duties and obligations arising from the prin-

ciple of ﬁdelity (keeping one’s promises and other commitments), all of

them can, I believe, be seen as consequences of the fundamental law of na-

ture under certain conditions. And, of course, as we have said, our being

bound by that law does not arise from consent, nor of course does our duty

to God.

4. At this point it may seem that Locke proceeds as though his funda-

mental thesis about consent as the origin of political power were obvious.

Indeed, it does have an obvious ring about it: how else, we might ask, could

free and equal persons—all being equally endowed with reason and having

equal jurisdiction over themselves—become the subjects of such an author-

ity unless by their free consent? Compare the case of free and equal sover-

eign nations: how can they become bound to some one of themselves un-

less, say by treaty, they give their free consent?

But however plausible Locke’s thesis might be, he does not just say that

it is obvious. His reasoning in the Second Treatise can be seen as an argu-

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ment by cases as follows: the basic law is the fundamental law of nature,

and we must justify every power and liberty, every right or duty, in our po-

litical relationships by reference to that law, together with the principle of

ﬁdelity.

The idea is that we enumerate the various powers and rights that we ac-

cept in everyday life, and that might offhand be the foundation of political

authority. For example, the right of (real) property, parental power, and the

right of a victor in a just war, each of which Locke discusses. Then it is

plain, Locke thinks, that none of these powers and rights can be the foun-

dation of political authority. Rather, each of these powers and rights is

suited for certain ends of different forms of association under certain spe-

cial conditions, conditions which sometimes hold in the state of nature,

sometimes in society, and sometimes in both. His idea is that different

forms of association have different forms of authority (see ¶83, last sen-

tence). They give rise to other kinds of authority with different powers and

rights. We must look for another way to establish legitimate political au-

thority.

5. To illustrate, consider the case of parental authority. This is suf-

ﬁciently comprehensive in scope to look in some ways like political power.

Filmer, in Patriarcha, argued that all political authority has Adam’s paternal

authority, originally given by God, as its source. Against Filmer, Locke

holds that the authority of parents over their children is temporary. We are

all born to a state of perfect liberty and equality even if we are not born in

it (¶55). Until we reach the age of reason some one must act as our guard-

ian or trustee, and make the decisions required to secure our good and to

prepare us for assuming our rightful freedom at the age of reason, at which

time parental power ceases. The point of Locke’s account of parental

power is to show, against Filmer, how it arises from our immaturity and

ends with our coming of age, and that it cannot give rise to political

power.

6. In the next lecture, I shall discuss Locke’s account of the right of

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5. A feature of Locke’s view is that he sometimes treats women as equals with men,

for example, as equals with their husbands, as in ¶65, Second Treatise. Susan Okin, in her

Women in Western Political Thought (Princeton: Princeton University Press, 1979), pp. 199ff,

argues that Locke does this only when it suits his case against Filmer’s patriarchalism.

Thus, within the family, when husband and wife disagree, it is the husband who has au-

thority: “...itnaturally falls to the Man’s share, as the abler and stronger.” Two Treatises:

II: ¶82; see also I: ¶47. There is no idea of even considering whether women have equal po-

litical rights.

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property in some detail, but note here that it is essential to Locke’s view

that, just as with parental power, the right of property cannot be the basis

of political power. To show this, he does two things (among others) in

Chapter 5:

(a) He maintains ﬁrst, as opposed to Filmer, that even though originally

the earth and its fruits were given in common, individuals and families

could and did take (real) property in things without the consent of all hu-

mankind, beginning with the ﬁrst ages of the world and long before politi-

cal authority. (Real) property can exist prior to government. It was in part

to render this property secure that people entered civil society. Contrary to

the feudal tie between (real) property and political authority, Locke holds

that property precedes government and is not the basis of it.

(b) Locke holds, second, that while the accumulation of real properties

of different sizes, the introduction of money, the growth of population and

the need for drawing boundary lines between tribes, and other changes, led

to a stage of development in which organized political authority became

necessary, real property does not of itself give rise to political authority, as

in feudal societies. For political authority to come into existence, a social

compact is required. Clearly, the terms of this compact are inﬂuenced by

the existence and distribution of real property but that is another matter;

property precedes government but is not the basis of it.

§3. Locke’s Criterion for a Legitimate Political Regime

1. Locke’s account of a legitimate political authority and of obligations

to it has two parts.

(a) The ﬁrst part is an account of legitimacy: it lays down when a politi-

cal regime as a system of political and social institutions is legitimate.

(b) The second part lays down the conditions under which we are

bound, as individuals, or citizens, to comply with an existing regime. It is an

account of political duty and obligation.

These two parts should be carefully distinguished.

Let’s turn to the ﬁrst part, the criterion for a legitimate regime, which

we can formulate as follows: A political regime is legitimate if and only if it

is such that it could have been contracted into during a rightly-conducted

process of historical change, a process that began with the state of nature

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as a state of perfect freedom and equality—a state of equal right, all being

kings. We will call this process “ideal history.” This formulation calls for

considerable explanation and comment.

2. First, what is a rightly-conducted process of historical change (or

ideal history)? It is a historical process that satisﬁes two rather different con-

ditions:

(a) One condition is that all persons act rationally to advance their legit-

imate interests, that is, interests that are permissible within the bounds of

the law of nature. These interests, in Locke’s phrase, are their interests in

their lives, liberties, and estates.

(b) The other condition is that everyone acts reasonably, that is, in ac-

cordance with their duties and obligations under the law of nature.

In short, everyone acts both rationally and rightly, or reasonably.

This means that in ideal history institutional changes (for example, the

introduction of money, or the ﬁxing of tribal boundaries) are agreed to:

First, only if the individuals involved have good reasons for believing

that, in view of their current and expected future circumstances, these

changes are to their rational advantage, that is, that they advance their legit-

imate interests; and

Second, only if no one subjects any one else to coercion or to threats of

violence, or fraud, all contrary to the fundamental law of nature, and

moreover, only if all honor their duties to one another under that law.

The ﬁrst condition is one of rationality, both individual and collective;

the second condition is one of right, or reasonable, conduct accepting the

bounds imposed on our natural freedom by the fundamental law of nature.

Here we should note explicitly that for Locke, force and threats of vio-

lence cannot be used to extract consent. Promises given under these condi-

tions do not bind (¶¶176, 186). Further, one cannot grant or cede a right or

power that one does not have (¶135). Thus, by compact we cannot sell our-

selves into slavery (¶23; see also ¶141).

To sum up: for Locke, all agreements in ideal history are free, un-

coerced, and unanimous as well as reasonable and rational from everyone’s

point of view.

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6. Interests of this kind belong to Locke’s standard view of persons in his contract

doctrine. We have seen that a contract doctrine must contain a standard view of some

kind. This view is part of its normalization of the parties to the contract in order to formu-

late a rational basis for unanimous consent.

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3. Note above in §3.1 the use of the word “could” in stating the social

contract criterion for a legitimate regime. It says that a political regime is

legitimate if and only if it is a form of government that could be contracted

into as part of a rightly-conducted process of historical change, or of what

we have called “ideal history.” Here it is assumed that ideal history may in-

clude a series of agreements over a long period of time. Their effect is cu-

mulative and reﬂected in the institutional structure of society at any given

moment.

Thus, we don’t say, on Locke’s view, that a political regime is legitimate

if it would have been contracted into in ideal history. That is a far stronger

statement, one that Locke need not make. He proceeds by imposing certain

constraints on what is reasonable and rational in ideal history. Presumably

different kinds of regimes could be contracted into, each consistent with

these constraints.

But it meets Locke’s aims to show that royal absolutism could not be

thus contracted into: this form of regime is excluded. That Locke’s aim is

to argue against royal absolutism is shown by the numerous occasions on

which he takes up this question and by the vehemence of what he says. For

him, to put ourselves under an absolute monarch is contrary to our (natu-

ral) duties and irrational; for to do that is to put ourselves in a situation that

is worse than the state of nature (¶¶13, 91ff, 137), something rational be-

ings will not do.

On this, see the important statement in ¶131 where he

says that when men give up the equality, liberty, and executive power they

have in the state of nature in order to enter into society with its laws and re-

strictions, they do so “only with an intention in everyone the better to pre-

serve himself his Liberty and Property; (For no rational Creature can be

supposed to change his condition with an intention to be worse).” He goes

on to say that whoever has power must govern by established standing

laws, and not by extemporary decrees, “. . . all this to be directed to no

other end, but the Peace, Safety, and public good of the People.” To under-

stand the role of the rule of law for Locke, we must put it in this context.

On the other hand, a mixed constitution could be contracted into. For

Locke, that the English Constitution is both mixed and legitimate is not in

dispute. Thus, once his criterion is accepted, absolutism is illegitimate, and

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7. Locke differs here from Hobbes, who views the state of nature as the worst condi

tion of all.

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