Pro: The principle of consent provides a universal standard for evaluating the legitimacy of political regimes.
Contra: The theory of property doesn’t make much sense.
The idea that government should be based on the consent of the governed stems from the idea that human beings are free. Because freedom is foundational, freely given consent is the only thing that could legitimize political rule. That we are free, and have rights, are natural facts about human beings, not statuses conferred by governments or societies. Even governments that do not acknowledge human rights, therefore, can be criticized for their refusal to do so.
The principle of consent says that someone may do something to you only if they have your permission to do so. Express consent is freely, knowingly, openly, and explicitly given. But most people have not expressly consented to their government, from which it would appear to follow that no government is legitimate. Locke’s solution to this problem is his doctrine of tacit consent: merely by living in a society, he says, people are implicitly or tacitly consenting to its laws.
This might be taken to imply that “consent” means something like “not unwilling.” Is that robust enough for something as important as political legitimacy? If I visit Cuba, I am presumably not unwilling to obey its laws. Does that mean I regard Communism as a legitimate form of government?
Depending on how you interpret Locke, it’s possible that the legitimacy of a government doesn’t depend on consent, despite what he seems to say. On one interpretation, Locke is really saying that a government is legitimate just in case it conforms to what natural law requires, namely that it protects the lives, liberties, and estates of its citizens.
On this view, it’s not the mere giving of consent that confers legitimacy on a government, it’s the justified giving of consent. Without this proviso, a government that violated the natural rights of its citizens would be legitimate, provided a majority of its citizens approved of its violations. The idea is that a free people will, if competent, give their consent only to governments that deserve it. If they consent to a government that doesn’t deserve it, that’s prima facie evidence they are not competent to give consent. People who are ignorant, misinformed, deluded, or otherwise incapacitated are unable to meaningfully give consent, even if they appear to do so.
In modern constitutional democracies, the people give or withdraw consent by means of elections. But the mere form of an election, one might argue, doesn’t indicate consent. Free and informed consent requires certain conditions, for example access to reliable information about candidates and parties. How well-informed is the electorate? To what extent is the electorate’s judgment distorted by misinformation, propaganda, ignorance, lack of education, lack of opportunity to participate in political deliberation and debate, or lack of a disposition to do so? These questions indicate that consent and legitimacy might not be an either/or phenomenon: there might be degrees of consent such that a government can be “more or less” legitimate.
This is a slippery line of thought, however. Who but the people are qualified to determine whether the people are competent? Can a democracy tolerate an authority “above” the people that evaluates the quality of the people’s judgment?
According to Locke, the world initially belonged to everyone in common. Under these circumstances, it might seem that if an individual desired to appropriate some of the fruits of the earth for private use, the principle of consent would require him or her to get everyone else’s permission to do so. But if that were the case, then the fruits of the earth couldn’t be used by any individual, since it’s impossible to get everyone’s consent. To preserve life, however, it is necessary to appropriate the fruits of the earth for private use, and making that impossible would violate the law of nature, which gives everyone the right to preserve their lives. So there must be some legitimate way to appropriate the fruits of the earth without getting everyone’s consent.
This is done, Locke says, by laboring to acquire the fruits of nature. Each individual owns his or her body and, therefore, the labor of his or her body. An individual acquires property in things with which he “mixes” something he owns. Therefore, a person acquires property in things with which he has mixed his labor, namely the products of his labor.
As many have pointed out, this is less an argument than a metaphor, and an odd one. Isn’t it just as plausible to say that when you mix something you own with something you don’t own, you lose the former?
What Locke seems to have in mind is the idea that if most of the value of a given product is the result of the labor that produced it, then the product loses its status as common property and acquires the status of private property. Even so, it seems like a peculiar way to think about property and value. Isn’t value determined by supply and demand, and isn’t ownership a legal or contractual relationship?
Things get more complicated when Locke introduces money, which, according to him, requires consent, namely the consent to treat certain pieces of paper and metal as if they had a value in addition to their purely physical characteristics. For reasons I won’t go into, the introduction of money makes possible unlimited acquisition, which leads to inequality because the productive and industrious minority eventually owns all there is to own. Because we consented to money, and because money leads to inequality, we consented to inequality – tacitly if not expressly.
The idea seems to be that if you consent to something, you consent to all its entailments and consequences, including the unpredicted and unpredictable ones. But this seems to violate the principle of informed consent. If we didn’t know we were committing ourselves to inequality when we consented to money, how can we be said to have consented to inequality? And can it possibly be right to think that a current generation is bound by consent given thousands of years ago by its ancestors?