Reinterpreting Lockean Obligation through the Lens of Fair Play — Epoche C2
The four sections that have to be explained In section 119 of the Second Treatise, John Locke writes that a man gives his tacit consent to a government by enjoying any part of its dominions, and that this holds whether his enjoyment consists in owning land, in lodging for a week, or in nothing more than travelling freely on the highway. The sentence has embarrassed his defenders for three centuries, because if a week's lodging is consent then consent has stopped meaning agreement. The standard response is to treat the passage as a weak link in an otherwise consent-based theory of political obligation, in which subjects are bound to obey because they have agreed to be. This essay argues for a different response: that section 119 and its three immediate successors describe something that is not an undertaking at all, that its logical profile is instead that of a duty conditioned on receipt of benefit, and that this is the structure H. L. A. Hart later isolated under the name of fair play. The claim is exegetical and it is testable, and the test — set out below — turns out to go three ways for the reading and one way against it. The section that goes against it is allowed to stand, because a reading that explains everything in a text is usually a reading that has stopped reading it. Chapter VIII of the Second Treatise, "Of the Beginning of Political Societies", runs from section 95 to section 122: twenty-eight sections, of which only the last four concern tacit consent. Its purpose is not to supply a criterion for individual obedience. Peter Laslett's critical edition established that the Treatises were composed around 1679 to 1681, during the crisis over the exclusion of James from the succession, and not as a retrospective justification of the revolution of 1688 as the publication date of 1689 had long suggested. The chapter's target is the claim that political authority descends from paternal authority and requires no agreement at all. Locke's business in it is the origin of societies, and the tacit-consent material is a coda dealing with an objection: if societies begin by agreement, what binds people who never agreed? Reading those four sections as though they were the load-bearing account of why anyone must obey is what makes them look absurd. They are the answer to a different question. The four sections say the following, and it is worth having them in view before any theory is applied to them. Section 119. Enjoyment of any part of the dominions of a government constitutes tacit consent to obey its laws, the enjoyment being of any degree from freehold ownership down to bare travel on the highway. Section 120. Whoever unites his person to a commonwealth thereby unites his possessions to it as well; and the land, once annexed, remains under that jurisdiction permanently, whoever comes to own it afterwards. Section 121. An asymmetry. Express consent makes a man perpetually and indispensably a subject; tacit consent binds only while the enjoyment lasts, and the tacit consenter may quit, sell up, and join another commonwealth or found one. Section 122. Submitting to a country's laws and enjoying its protection, Locke says, "makes not a man a member of that society"; it establishes only a local relation of protection and homage between the government and anyone within its territory who is not at war with it. Why reading these as consent strains, and the exact shape of the strain The classic objection is David Hume's, in the essay "Of the Original Contract" of 1748: consenting to a government by remaining under it presupposes a real option of leaving, and the labourer who commands neither the language nor the fare of another country has no such option. Hume's image is of a man carried aboard a ship in his sleep who is said to consent to the captain's dominion because he is free to jump into the ocean. A. John Simmons later gave the objection its precise form by setting out what a signal of tacit consent has to satisfy in order to be consent: the person must know that his silence or inaction will be taken as agreement, must have a reasonable period in which to dissent, must have a means of dissent that is not unreasonably costly, and must face consequences of dissenting that are not severely detrimental. Residence within a territory satisfies none of these conditions for most people, so whatever section 119 describes, it is not the giving of consent. That much is common ground and it is not the interesting part. The interesting part is the shape of the failure. Compare the two things Locke has put side by side in section 121. Express consent, he says, binds perpetually and indispensably, and no subsequent change of circumstance releases the man who gave it. Tacit consent binds only during the enjoyment, and ceases when the enjoyment does. If both were consent — both undertakings of the same kind, differing only in whether they were spoken — the asymmetry would be inexplicable. Promises do not lapse when the promisor stops finding the arrangement convenient; that is very nearly the definition of a promise. A duty that begins with receipt and ends with departure is not the residue of an undertaking. It is a duty indexed to a flow of benefit, and it behaves exactly as such duties behave. Fair play, stated as its author stated it The principle that has this shape was formulated by Hart in 1955, in a paper whose main business was something else. "Are There Any Natural Rights?" argues that if there are any moral rights at all, there is at least one natural right, the equal right of all to be free; the principle of fair play appears in it as an example of a special right, one arising out of a particular transaction between particular parties rather than belonging to everyone as such. Hart's formulation, which he called the mutuality of restrictions, is that when a number of persons conduct a joint enterprise according to rules and thereby restrict their own liberty, those who have submitted to the