Rawls J. Lectures on the History of Political Philosophy

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so a king with absolutist pretensions may be resisted within the context of a

mixed constitution.

4. It is implicit in what we have said that Locke’s criterion for a legiti-

mate regime is hypothetical. That is, we can tell whether a form of regime

is legitimate by seeing whether it could have been contracted into in the

course of ideal history. It need not actually have been contracted into; a re-

gime may be legitimate even if it has arisen in some other fashion.

To illustrate: Locke recognizes that the Norman conquest did not estab-

lish the legitimacy, say by the right of conquest, of Norman rule (¶177).

But various institutional changes since that time have transformed the orig-

inal Norman regime into a mixed constitution (as Locke understands it);

and so the existing regime now satisﬁes the social contract criterion. It is a

form of regime that could be contracted into, and hence could be, and is,

accepted as legitimate.

However, although Locke’s criterion is hypothetical, it is not non-histor-

ical. That is, ideal history is a possible course of historical change, assuming

that human beings can conduct themselves reasonably and rationally. This

may be very unlikely, but it is not impossible. By contrast, I have supposed

that in the political conception of justice that I have called “justice as fair-

ness” the original position is non-historical; it is to be regarded as a device

of representation that models our more general considered convictions.

5. To conclude: Locke’s criterion of a legitimate political regime is a

negative one: that is, it excludes certain forms of regime as illegitimate:

those that could not be contracted into by a series of agreements in ideal

history. This criterion doesn’t specify the best, or ideal, or even the better

political regimes. To do this Locke would have to maintain that there is

only one best regime, or a few equally good best regimes, one of which

would be contracted into. To maintain this he would need a far more gen-

eral doctrine. Moreover, it is far beyond what Locke requires for his political

purposes. Very sensibly, he argues for what he needs and not more.

§4. The Political Obligation for Individuals

1. So far we have discussed Locke’s criterion of legitimacy—the form a

legitimate government may take. It is important to distinguish between an

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His Account of a Legitimate Regime

8. See Rawls, Justice as Fairness: A Restatement, §§6.3–6.5.

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account of legitimacy and an account of political duty and obligation of in-

dividual persons. I now turn to the second of these and ask: How do we—

as individuals—become bound to a particular regime that may exist at any

time, and to which we may be subject?

The contrast here with Filmer’s view is sharp.

Filmer’s starting point

was the Bible as an inspired work. It disclosed God’s will in all essential

matters and contained the relevant truths about the nature of the world

and human society. For Filmer, we are born under and must always be sub-

ject to some authority. This is the idea of natural subjection, which Locke

mentions in ¶¶114, 116, and 117. The idea of nature as a state of equal

right, all being equally sovereigns over themselves, and the idea that politi-

cal authority must be seen to arise from consent are, for Filmer, completely

false. For him, the Bible shows that human society originated in one man,

Adam; and before Eve was created Adam owned the whole world, all the

land and all the creatures in it. The world was his property, and he was sub-

ject only to God. Thus, it was the will of God that the world begin this way,

with Adam alone, and not with two or more men, or with a multitude con-

sisting of equal numbers of men and women.

Filmer thought, then, that all human beings were to be subordinate to

the ﬁrst man, Adam. By virtue of being the father, or patriarch, of his even-

tually very large family (he is supposed to have lived over 900 years), he was

the ruler and all were subject to him. Upon his death, power over the fam-

ily, or state, passed to his son by the rules of primogeniture. And since all

persons have sprung from Adam, all are naturally and physiologically re-

lated to each other. Thus, God willed that human society is to be founded

on natural and not on consensual bonds: its form is to be hierarchical and

to rest on natural subordination.

2. In the important paragraphs ¶¶113–122, Locke argues against the

idea of natural subjection. In regard to the political obligations of individu-

als, his view is that neither paternity nor place of birth or residence sufﬁces

to determine our political obligation. Fathers cannot bind their sons (¶116);

and each person must, at the age of reason, give some form of consent.

This consent we may think of as joining consent, a consent that, when it is

what he calls “express consent,” incorporates us into an existing political soci-

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9. Robert Filmer, Patriarcha and Other Writings; see also Lecture I, note 5 for further

references.

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ety. Locke remarks that as persons come of age, they do not give their con-

sent “in a multitude together” (¶117), but do so singly. Therefore, we take

no notice of their consent, and we conclude wrongly that they are naturally

subjects. All of this Locke is directing against Filmer.

Now the question is: how do individuals give “joining consent”? At this

point Locke introduces a distinction between “express” and “tacit” consent

(¶¶119–122). Locke’s text here is not very explicit; but some main points

seem to be these:

(a) Express consent is given by “positive Engagement, and express

Promise and Compact” (¶122), e.g. an oath of allegiance to the Crown,

(which is mentioned in ¶¶62, 151); whereas tacit consent is not so given.

(b) Express consent is given with the intention of incorporating our

person into the commonwealth, and with the intention of making our-

selves a member of that society, a subject of that government; whereas tacit

consent is not given with this intention (¶¶119, 122).

member of society (¶121f ), inalterably subject to it, and never again at lib-

erty as in the state of nature (to which we are born), whereas tacit consent

does not have this consequence (¶121f ): it binds us only to honor the laws

of the commonwealth so long as we dwell upon and enjoy the land (etc.) of

the commonwealth.

(d) Express consent is like originating consent in that it incorporates

our person into society; tacit consent does not.

To sum up, Locke’s idea is that by express, joining consent (normally as

a native-born Englishman) we become a full citizen of the commonwealth;

whereas by tacit consent we undertake to comply with the laws of a regime

so long as we reside in its territory (as resident aliens).

3. As we have seen, Locke’s doctrine has two parts: one is an account of

legitimacy, the other is an account of political duty and obligation of per-

sons. Both parts are aimed at Filmer’s account of the legitimacy of absolute

monarchy as based on divine right and Adam’s paternal power, with its idea

of natural subjection.

The question now arises as to the relation between these two parts of

Locke’s view. From Locke’s standpoint, one main point is that we can only

become bound by express consent to a legitimate and not to an unjust re-

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His Account of a Legitimate Regime

10. See John Dunn, Political Thought of John Locke, pp. 136–141.

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gime. (Tacit consent is less important for Locke.) Thus, the legitimacy of a

regime is a necessary condition of our having a political obligation to com-

ply with its laws. In ¶20 Locke says that if the law is not justly administered,

“War is made upon the Sufferers.” This means that we do not (indeed can-

not) have a political duty or obligation to a regime that is clearly unjust and

violent. I say clearly unjust and violent, or at least sufﬁciently so, since it is

unreasonable to expect any human regime to be perfectly just, and due al-

lowance must be made for the normal faults, moral and otherwise, of those

who exercise political power.

That the legitimacy of the regime is a necessary condition of political

obligation ﬁts the aim of Locke’s doctrine: for keep in mind that Locke

wants to justify resistance to the Crown under a mixed constitution. It ac-

cords with the idea of political authority as a ﬁduciary power; and with his

view (stated in ¶225) that the people are loath to oppose an existing regime

that exercises that power at all reasonably, and that does not threaten their

essential rights and liberties. Locke also thinks that it is relatively easy for

those who hold political authority to satisfy this necessary condition. Un-

just rulers bring rebellions and revolutions on themselves (¶¶227–230).

Thus, so long as this condition is met, persons as they come of age will

willingly give their free and express consent. Locke thinks it good for sover-

eigns to be fully aware that their reasonable conduct in exercising political

authority is a necessary condition of their subjects being bound to accept

their legitimacy: this awareness will serve as a constraint on their behavior.

Nothing unleashes sovereigns so much as their false belief that their sub-

jects owe them obedience, no matter what.

4. Observe, however, that the fact that we have no political obligation to

an illegitimate regime does not imply that we are not bound to act in accor-

dance with its laws, or to moderate our resistance to it, for other reasons.

But these reasons will not derive from our political duty or obligation aris-

ing from our consent.

Rather, it may be that we should avoid resistance because it would not

be effective; indeed, it might make the regime even more repressive, and

bring undue harm to the innocent. The point is that there are various

grounds in Locke’s view for complying with a regime and its laws, and

many of these are not based on political duty or obligation. Among these, I

think, is a duty not to oppose a legitimate and just existing regime, whether

in our own or in another country. But all things considered, there may be a

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right of resistance to an illegitimate and sufﬁciently unjust regime when

the likelihood is great enough that resistance will be effective and that a le-

gitimate regime will be established in its stead without great loss of inno-

cent life.

Here, of course, we have to balance imponderables: How great must

the likelihood be? How unjust the regime?—and much else. These ques-

tions have no precise answers and depend, as one says, on judgment. Politi-

cal philosophy cannot formulate a precise procedure of judgment; and this

should be expressly and repeatedly stated. What it may provide is a guiding

framework for deliberation to be tested by reﬂection. Such a framework

may include some fairly deﬁnite listing of the more relevant considerations

as well as some indication of their relative weight when they conﬂict, as

they are bound to do. There is no avoiding, then, having to reach a complex

judgment weighing many imponderables, about which reasonable persons

are bound to differ. This is a paradigm case of what I have called “the bur-

dens of judgment”: the sources of reasonable disagreement among reason-

able persons.

§5. Constituent Power and the Dissolution of Government

1. There are three potentially very radical ideas in Locke. One we have

just surveyed, namely, the idea of the state of nature as a state of perfect

freedom and equal political jurisdiction, and the incorporation of this idea

in the criterion of a legitimate political regime.

The second idea is that of the constituent power of the people to estab-

lish the institutional form of the legislative power to which they entrust the

regulation of their political life for the public good. Included in this idea is

the further idea that, in a mixed constitution, whenever one of the coordi-

nate constitutional agents—either the Crown or Parliament—violates its

trust, the government is dissolved. In this case the people have the power to

constitute a new frame of government and to depose those who have vio-

lated their trust.

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His Account of a Legitimate Regime

11. On the idea of the burdens of judgment, see Rawls, Justice as Fairness: A Restate-

ment, pp. 35–36; also Rawls, Political Liberalism (New York: Columbia University Press,

1993), pp. 54–58.

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2. Let us now review some points about the idea of constituent power,

as it is basic for the idea of constitutional government.

(a) Constitutional government makes the fundamental distinction be-

tween constituent and ordinary power (or as Lawson said in Politica Sacra et

Civilis, between real and personal power). Constituent power is the power

(the right) to determine the form of government, the constitution itself; or-

dinary power is the power (the right) exercised by ofﬁcers of the govern-

ment under the constitution in the everyday course of political affairs. Con-

stitutional politics is the exercise of constituent power (say, mobilizing the

electorate to amend the constitution); ordinary politics is the exercise of or-

dinary power (say, urging Parliament, or Congress, to enact laws; or judges

deciding cases).

(b) In this doctrine there is no contract of government, that is, a con-

tract between the Crown and the legislative on the one side, and the people

on the other. The social compact, for Locke, is an agreement entered into

by the people as individuals with each other: they each make an agreement

with the rest, and this agreement is unanimous. All agree to join into one

society to be governed by a political regime. The form of this regime is

whatever the majority of them shall determine is appropriate, given the

present and foreseeable circumstances of society.

cal authority. Thus, it should be stressed that political power in Locke is a

ﬁduciary power, a trust. If it is asked who is to decide whether those exer-

cising ordinary power violate their trust, the answer must be that it is the

people who must decide (¶¶149, 168, 240–243).

3. Finally, while Locke thought that Charles II had in effect dissolved the

government by exceeding his prerogative and other powers, he says noth-

ing about how the people (society as a whole) are to act, or through what

institutions they are to exercise their constituent power. We might ask,

“Who are the people and how can they act?” Locke gives no account of

these matters.

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12. On the distinction between constitutional and ordinary politics, see Bruce

Ackerman’s important work, We the People (Cambridge, Mass.: Harvard University Press,

1991); Vol. I, Chs. 1–3 give the general idea; the whole is good. In his view, the three main

eras of American constitutional politics are the period of the Founding, the period of the

Civil War amendments, and the period of the New Deal. Modulo matters of interpreta-

tion, there are these three different, though of course related, constitutions.

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Lawson, again in Politica Sacra et Civilis, held that the community as a

people—a nation—is not dissolved by civil war so long as there remains in

it a sufﬁcient will to reestablish a legitimate regime by the people’s exercise

of their constituent power. He seems to have thought of the community as

acting through the county courts at the local level to organize a meeting of

the people’s representatives to act as a constitutional convention. Such a

convention would, of course, make use of parliamentary forms and proce-

dures, but it would not be a parliament. As a convention of the commu-

nity’s representatives, it would have constituent power to establish a new

form of regime, which if accepted by the community, would be legiti-

mate.

Presumably Locke’s views were similar to this, but in 1689 such views

were rejected by his fellow Whigs as far too radical. I shall not pursue these

matters here. The relevant point for our purposes is that the idea of the

constituent power of the people and of the dissolution of government

must remain indeterminate and indeed a rather unsettling idea until it is

embodied in a deﬁnite way in institutions.

Thus, consider the distinction in our Constitution between the ordinary

powers of elected and appointed ofﬁcials, and the constituent powers exer-

cised by the electorate in passing amendments to the Constitution and by a

constitutional convention, and in the whole procedure to which such a con-

vention belongs. These last arrangements are necessary to give institutional

expression to the idea of the people’s constituent power, and they are an es-

sential part of a fully developed constitutional regime. But historically this

comes later. The ﬁrst constitutional convention seems to have been in Mas-

sachusetts in 1780. It is an American invention.

There is a third potentially radical idea in Locke, the idea that the right

of property is founded on labor. We touch on this in the next lecture.

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His Account of a Legitimate Regime

13. Julian Franklin, John Locke and the Theory of Sovereignty (New York: Cambridge Uni-

versity Press, 1978), discusses this on pp. 73ff.

14. See Leonard Levy, editor with introduction: Essays on the Making of the Constitution,

2nd ed. (Oxford: Oxford University Press, 1987), p. xxi.

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Property and the Class State

§1. Problem Stated

1. I now take up Locke’s account of property and the problem to which

it gives rise. This problem can be stated as follows: Locke thought his social

contract doctrine supported a constitutional state with the rule of law and a

representative body sharing supreme legislative authority with the Crown.

However, in this state only people who have a certain amount of property

can vote. These owners of property are, let’s say, active (vs. passive) citi-

zens: they alone, among citizens, exercise political authority.

The problem now arises whether this constitutional though class state

is consistent with Locke’s social contract doctrine. On our interpretation,

we ask whether a class state could arise by free consent in the course of

ideal history. Recall that ideal history begins from the state of nature as a

state of equal jurisdiction in which everyone acts reasonably and rationally.

It has seemed to some, for example, to C. B. MacPherson,

that the class

state is inconsistent with Locke’s doctrine about how legitimate political

authority can arise.

Before proceeding I should say that it is not Locke’s concern to justify

private property. This is because in the audience he is addressing there is

no dispute about it. That ownership of property is justiﬁed is taken for

granted. Locke’s task is to explain how this widely accepted institution can

be accounted for, shown to be right, within his social contract doctrine.

Many of the details of Chapter 5 of the Second Treatise are to ﬁll in this

story; to demonstrate, as against Filmer, that the contract view accords

with common opinion.

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1. See C. B. MacPherson, The Political Theory of Possessive Individualism (Oxford: Ox-

ford University Press, 1962).

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2. A comment on MacPherson: he believes that unequal political rights

arise in Locke only because Locke does not view those without property as

parties to the original compact. He attributes to Locke the idea that those

without property, being brutish and callous, are not capable of being rea-

sonable and rational, and so they are not capable of giving their consent.

Very little in the text of the Two Treatises supports this contention, so why

does MacPherson hold it? The answer may be that he thinks it simply obvi-

ous that if those without property were parties to the original compact,

they would not, assuming them to be reasonable and rational, consent to

the unequal political rights of the class state. Thus he may think Locke

must have excluded them as incompetent and incapable of reason.

Now, if this is MacPherson’s reasoning, it overlooks a central point

about all agreements, from social compacts to contracts in everyday life:

namely, that in general, their speciﬁc terms depend on the relative bargain-

ing positions of the parties outside the situation in which the terms of the

contract are being discussed. The fact that the parties are equal in certain

fundamental respects (with equal jurisdiction over themselves, equal sover-

eigns, as it were) does not imply that all the terms of the social compact

must also be equal. Rather, these terms may be unequal, depending on the

distribution of property among the parties, as well as on their aims and in-

terests in entering the agreement.

This is precisely what seems to happen

in Locke’s form of the social contract view.

3. If we are unhappy with Locke’s class state, and still want to afﬁrm

some form of contract doctrine, we must ﬁnd a way to revise the doctrine

so as to exclude the unwanted inequalities in basic rights and liberties. Jus-

tice as fairness has a way of doing this: it uses the original position as a de-

vice of representation. The veil of ignorance limits information about bar-

gaining advantages outside that contractual situation.

Of course, other

ways may be superior; or perhaps no revisions of the social contract view

will prove satisfactory, once we have considered them thoroughly.

In these lectures I am trying to think through a few political concep-

tions, all the way through, if possible. This, and not the speciﬁc things we

go over (though I hope they are not trivial) is the justiﬁcation of our nar-

row focus. The idea of thinking political conceptions through is less famil-

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Property and the Class State

2. These points are made by Joshua Cohen, “Structure, Choice and Legitimacy:

Locke’s Theory of the State,” Philosophy and Public Affairs, Fall 1986, pp. 310f.

3. Rawls, Justice as Fairness: A Restatement; see §6.

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iar to us than, say, thinking through conceptions in mathematics, physics,

or economics. But perhaps it can be done. Why not? We can only ﬁnd out

by trying.

4. So much for preliminary comments on the problem of the class state

in Locke. I ﬁrst sketch some main points about his account of property,

calling your attention to a few important points in the Two Treatises, stress-

ing some sections in Chapter 4 of the ﬁrst, and Chapter 5 of the second.

With this done, I indicate how a constitutional class state might be thought

to come about in the course of ideal history. The purpose in doing this is to

show that such a state is consistent with Locke’s basic ideas.

The thought here is not to criticize Locke, who was a great man—one

who, while cautious, and some say even timid, nevertheless ran enormous

risks to his life for many years to defend the cause of constitutional govern-

ment against royal absolutism. He put his head where his mouth was. It

would be indecent to take a lofty critical tone towards him because his view

is not as democratic as we now would like.

Our aim, then, is one of clariﬁcation: if Locke’s formulation of the so-

cial contract doctrine is not satisfactory—because, say, it is compatible with

the class state—how then should it be revised? We examine how such a

state could arise in ideal history in order to highlight certain basic features

of Locke’s view, hoping that getting a clear idea about them may show us

how best to revise it.

§2. Background of the Question

1. The question of the franchise is not raised explicitly in the Second

Treatise. Although there was controversy about redistricting during the Ex-

clusion Crisis of 1679–81, the franchise as such was not the central issue.

The basis for thinking that Locke accepts the class state is what he says in

the Second Treatise, ¶¶140f, where he seems to accept as justiﬁed that the

franchise be limited to those who met the 40 shilling freehold rule in exis-

tence at the time (in land terms, that is roughly 4.5 acres of arable land). Al-

though not a large sum, various estimates indicate that it excluded a large

part of the male population, possibly as large as 4/5 at the time of the Ex-

clusion Crisis, though others think it was considerably less and closer to 3/5

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