I’m deeply grateful to Samuel Gregg for providing the serious analysis that was missing from his treatment of Locke in his earlier critique of social contract theory. I am in agreement with what I take to be the most important point of Gregg’s analysis: Locke’s approach to natural law is inadequate because it is influenced by poor thinking about anthropology and metaphysics. I acknowledged as much in my original reply, so the admission is relatively painless.
However, I welcome the opportunity for further dialogue. Beyond our disagreements on the content of Locke’s theory, I think this discussion illuminates wider problems. I’m increasingly convinced that the widespread polarization about Locke—people seem to either love him or loathe him—are a key proxy for different approaches to the whole enterprise of critiquing modern American society from a metaphysical standpoint.
Being myself a former nominalist and voluntarist, I am well-equipped to appreciate the damage these approaches did to Locke. So nothing I write here should be taken to slight the importance of those issues.
But one cannot reduce Locke’s thought to nominalism and voluntarism. Locke read deeply in a staggering variety of sources and was influenced by many lines of thought, including ones that had their roots in more metaphysically sound approaches. As a result, there is a great deal in his work that is morally and even metaphysically robust. Locke is a deep cultural well from which we still can draw good water.
And it is imperative to affirm what’s good in a society, and its philosophical sources, before moving on to a critique. Starting with affirmation establishes standing to propose constructive reforms, and makes the reforms come across as more plausible. The impulse to set up an exclusive clique of metaphysically approved thinkers and then devote our energies to “policing the border,” affirming only our favorites while consigning all others to the outer darkness, is not only unsound on the merits, it will also cut off our essentially Lockean society from the sources of cultural nourishment that it is most likely to be able to draw from.
Gregg speaks casually about replacing Locke’s approach with subsidiarity, as though societies were cars and we could just pop the hood and replace the parts. As Burke pointed out, societies are not like machines but like trees. If Gregg wants to move America in his direction, he’ll have to help it grow that way, which means he’ll have to start from where it is. If all we do is emphasize that Locke has nothing morally or metaphysically significant to say, we will not only be stating a falsehood, we will be ensuring our own irrelevance.
Indeed, we will be significantly helping our enemies. The whole mythology of secular neutralism rests upon a false historical narrative that Gregg is inadvertently reinforcing. The absolutely non-moral, non-metaphysical Locke is a fairy tale invented by the apostles of secular neutralism as a key component of their foundation myth.
On the textual questions, the political theory Gregg represents Locke advocating is not only unrecognizable to any serious student of the Two Treatises, it is just obviously fantastic and incredible. Does anyone really believe—could anyone really believe—that all governments are created by conventional contractual agreements, presumably with extensive negotiations beforehand and signing ceremonies afterward? This account doesn’t even rise to the level of caricature.
Gregg misses two key distinctions in the Two Treatises: the distinction between the institutions we call “governments” and the political communities they exist to serve; and the distinction between explicit consent and tacit consent. The first of these distinctions is the central focus of the Two Treatises and is essential to all that Locke has to say, so missing it distorts everything else. The second distinction itself arises in service to the first, because government is the natural (though not exclusive) locus of explicit consent, while community is the natural (though not exclusive) locus of tacit consent.
Contra Gregg, Locke does not avoid the reality that the beginning of most governments involves a contest of arms. He himself makes this observation frequently, and devotes an entire chapter to the relationship between “conquest” and legitimacy. Governments often come into being through contests of arms because military victory establishes power, which is one necessary component of government. Conquest, however, cannot establish legitimacy, which is another necessary component. Only consent can establish legitimacy.
There are only two ways social action can occur: through force or through consent. People sometimes do things because they’re forced to; if they do things without being forced, they are doing them by consent. Since civil communities and legitimate governments can’t be made by force, they therefore must be made by consent.
Winning a war gives you power, but you must then win hearts and minds or you will not be able to govern legitimately. All governments use force against individual offenders, of course, but a government that imposes itself on the community by force—in other words, one that rules primarily through force rather than primarily through recognized moral authority—is illegitimate.
Here, the other distinction Gregg misses, the one between explicit and tacit consent, comes into play. Locke does cite a few instances in which communities were formed through a formal and explicit act of consent, but (contra Gregg again) he does not say that explicit consent is the usual way in which civil communities emerge. They may emerge by tacit rather than explicit consent, and they usually do.
So there is nothing “ahistorical” or mythological about the consent that creates and sustains communities. It is a very historical, very real consent; there is just usually no explicit or formal act that gives this consent tangible expression. It’s there in the background.
Locke seeks out ways of making this consent more tangible so he can explain it. The occasions on which consent is explicit serve as useful examples, but since these are exceptional cases, Locke conducts a thought experiment to provide a sort of imaginary tangibility to the process: What if there were no governments? We would have to create them. This is the role that the state of nature plays in his theory.
The concept of tacit consent, as everyone knows, is problematic. But so are many other concepts that we know to be true and real, even though we don’t fully comprehend them. Like the Trinity and the Incarnation, the intrinsically social nature of human beings is a mysterious thing. The concepts by which we express it are always problematic and easily subject to confusion.
For all its problems, the idea that community and legitimate government exist by consent has been central to Christian political theology and philosophy. Thomas Aquinas writes that government exists by consent. In his Commentary on the Sentences of Peter Lombard (II, D.44, qu. 2), he writes that “whoever seizes power by violence does not become a true ruler”; a ruler acquires legitimacy only by “the consent of his subjects” or by being appointed to serve under an existing legitimate ruler—who presumably must rule by consent.
That is not the only point on which Locke and Aquinas agree. Contra Gregg, they agree that human beings are by nature political. Locke writes that people without a society are “quickly driven into society” by the imperatives of their nature (II.127). It was Rousseau who introduced the idea of a naturally apolitical humanity.
Contra Gregg once again, there is no contradiction between the view that community and government exist by consent and the view that human beings are naturally social and political. It is the nature of human beings to live together in community and under government by (usually tacit) consent.
In his attempt to create the appearance of a radical division between Locke and Aquinas, Gregg takes a snippet of Locke and twists it beyond all recognition:
In Locke’s view, we do not obey our rulers because a concern for human flourishing, justice, and the common good tells us that it is reasonable to do so. Instead, we obey because our rulers have a superior will. “Law’s formal definition,” Locke wrote, “is the declaration of a superior will.” How different this is from Aquinas’s understanding of law as “an ordinance of reason for the common good, promulgated by him who has the care of the community.”
But what does Locke mean by calling the will that creates the law “superior”? The failure to ask this question reflects a superficial engagement with Locke.
Gregg seems to suggest that Locke thinks law is made by a will that is “superior” in terms of force. (At least I can find no other meaningful way to interpret what he wrote.) Yet this reading is absurd. Locke, the greatest tribune of righteous resistance to tyranny ever to live, thinks force is what makes someone’s will a law? How then would we explain this, which comes at a central point in the argument of the book:
A man can never be obliged in conscience to submit to any power, unless he can be satisfied who is the person who has a right to exercise that power over him. If this were not so, there would be no distinction between pirates and lawful princes, he that has force is without any more ado to be obeyed, and crowns and scepters would become the inheritance of violence and rapine. (I.81)
Not only this passage, but every single page of the Two Treatises cries out that no person’s will is a law, however he may claim the authority to rule, unless that person’s will is “superior” in exactly the way Aquinas articulates: because it is an ordinance of reason for the common good, promulgated by him who (truly) has the care of the community, and which a concern for human flourishing, justice, and the common good makes it reasonable to obey. I can’t think of a better summary of Locke than those words.
Locke and Aquinas disagree on many other things, most notably (for our purposes) on the extent to which natural revelation can carry the burden of justifying government. But on the question of whether law is a moral reality or merely a function of power, there is simply no daylight between them. (Space doesn’t permit me to really justify this reading of Locke here as I would like to. Those who are interested can find the justification here.)
Locke’s elegant solution to England’s political crisis in the 1680s provided a beautiful expression of the confluence of natural human sociability, moral foundations for government, and the (tacitly) consensual nature of community. The key was to ground government in the moral consensus of society knowable through the ordinary, natural social processes of reason, history, culture, and socialization. That consensus is truly moral because those natural and historical processes are made moral by God’s continual creative activity, making them vehicles of natural revelation. Social life freely lived in accordance with this natural moral knowledge is more or less what Locke is getting at with the concept of tacit consent.
Freedom of religion emerged from Locke’s response to those who insisted, as Gregg does, that society must look outside the natural processes of reason, history, culture, and socialization for moral foundations. It was this approach that had fueled the endless war between Catholics, traditional Anglicans, and Puritans, with its two-century track record of unlimited slaughter and terror. Trans-social sources of knowledge cannot create social consensus.
I would like to close on two points. First, a key insight I have gained from this discussion is the need to drop the artificial category “social contract theory.” It obscures far more than it illuminates. The very idea of what a “contract” is was dramatically different in the more theological atmosphere of the seventeenth century. Moreover, the term “social contract” did not even really emerge until Rousseau, whose theory differs from Locke’s as night from day. We should not uncritically permit Rousseau to define our categories for us.
Second, the debate over Locke illuminates the American challenge: Can a humane civil community be sustained without coercive enforcement of religious orthodoxy? Everyone agrees that murder is wrong, but what counts as murder? How do we sustain a shared sense of what is right and fair without forcing upon people a fully developed metaphysic they don’t authentically believe in?
That, more than anything else, is the great, heroic experiment of this country—the deadly Sphinx’s riddle before which America has always played, and will continue to play, the daring Oedipus. The danger is real, yet there is great hope, and it rests in the fact that Americans of all stripes reject coercion as a solution to metaphysical fragmentation. This is why Americans are increasingly turning away from secular neutralism, as its intrinsic logic of unlimited coercion becomes increasingly clear.
It was Locke who taught them this virtue. God bless him, and them, for it.