Abstract
This article revisits long-standing questions about consent, membership and emigration in Locke’s thought. Commentators such as A John Simmons have argued that Locke opens political membership to both express consenters and some kind of tacit consenters, and not just to the former, as some have suggested. Simmons’s reading seems to render Locke more sensible in that it does not exclude large numbers of people from membership or burden the few members with all the civic duties, and also in that it allows at least tacit-consenting members the right to relocate, while this right is denied to express-consenting members. Against this reading, the article shows, by resolving seemingly conflicting claims in the text, that people become members only by express consent. It also responds to the criticism that the express-consent-only reading would limit membership to a few and so would render Locke’s account implausible from a practical point of view. The article then addresses the purported restriction Locke imposes on express consenters’ right to emigrate, arguing that the restriction concerns the change of membership and not the right to relocate.
Introduction
Back in 1990, GA Den Hartogh (1990: 105) commented that what Locke says about consent and political obligation is ‘tolerably clear’ and that the problem seems to be more that ‘his interpreters cannot bring themselves to believe that he means to say it’. Roughly three decades after the publication of Hartogh’s article, I wish to make a similar claim: Locke’s view on consent and political membership is clear, yet commentators resist accepting it as Locke’s, due in part to what seems to be internal tensions within Locke’s text, and also, I suspect, due in part to the implications of the views being impractical and untenable. I will be arguing that, on Locke’s account, people can only become members of a political society by giving their express consent. Moreover, I will be arguing that this does not lead to completely indefensible consequences and constraints as commentators have suggested.
Over the past 30 years, the view I defend in this article has come under heavy criticism from commentators, including most notably A John Simmons. Simmons (1993, 2001, 2016b) has made a very strong case against the reading that says express consent is the only path to citizenship. He has also noted the difficulty of making sense of the alleged restriction imposed upon the members’ right to emigrate. By contrast, Simmons’s own reading that people can become members through both express consent and some kind of tacit consent makes Locke seem more sensible: large numbers of people would not be excluded from membership; the political society would not be run by only a fraction of the population; and at least some members would retain the right to relocate, namely tacit consenting members. While Simmons’s account does indeed look more attractive, in the rest of this article, I will be defending my interpretation of Locke on consent, membership and the right to relocate against Simmons’s and like accounts. 1
The more specific questions I will be considering are as follows. First, while I will be arguing that only express consent can make people full members of a political society, does not Locke in places suggest that tacit consent can also make people members? I argue that he does not, noting that these passages are not what they seem to be. Second, if this is the case, and supposing also that express consent was not so common, does this not lead to a problem that only a small number of people would be members in the political society? I argue that the charge is not as fatal as it seems. Thirdly, while Locke seems to deny the right to relocate to express consenters, is this really the case? I argue that Locke in fact does not deny this right, and can distinguish between change of membership and emigration.
Membership by tacit consent?
Let me begin by laying out the views I argue Locke puts forward concerning consent, membership and emigration. On Locke’s account, nobody is born a member of a particular political community. When people become of age (in Locke’s case, 21), 2 they can freely choose whichever community they wish to join. Alternatively, they can create a new one with others in an unoccupied land given that they have not yet expressly consented and committed to a particular community. Until they do so, such people are at most tacit consenters who are simply subject to the rule of the political society where they happen to reside. Indeed, they are still in the state of nature, although they benefit from local governmental protection. Once people commit to a particular community by expressly consenting, however, they can no longer change membership except under certain very specific circumstances; nevertheless, they retain the right to relocate.
Locke’s text corroborates this reading (I will show how this is the case for the right to relocate in Section 3). Locke clearly says in the Two Treatises of Government (1689) 3 that ‘a Child is born a Subject of no Country or Government’ and when the child becomes of age, is ‘at liberty what Government he will put himself under; what Body Politick he will unite himself to’ (Locke, 1988: II.118). Given that people are ‘naturally free’, it is only by their consent that they can put themselves ‘into subjection to any Earthly Power’ (Locke, 1988: II.119). Until ‘by their own Consents they make themselves Members of some Politick Society’, people remain in the state of nature (Locke, 1988: II.15). Express consent makes one ‘a perfect Member of that Society’ and by such consent one ‘is perpetually and indispensably obliged to be and remain unalterably a Subject to it’ (Locke, 1988: II.119, 121). By contrast, tacit consent does not make people members of that society while making them subject to its rule, and given that such consenters give up the possession or enjoyment of ‘any part of the Dominions of any Government’ which made them tacit consenters in the first place, they are free ‘to go and incorporate [themselves] into any other Commonwealth, or to agree with others to begin a new one, in vacuis locis, in any part of the World, they can find free and unpossessed’ (Locke, 1988: II.119, 121–122). However, as Simmons and other commentators have pointed out, there are some places in the Two Treatises that seem to suggest that tacit consenters can also become members (Hampsher-Monk, 1992: 99–100). I examine two cases below. In either case, however, I show that Locke reserves membership for express consenters.
Membership by inheritance?
The first case I take up is membership through inheritance of property. Locke writes that a father may ‘annex such Conditions to the Land, he enjoyed as a Subject of any Commonwealth, as may oblige his Son to be of that Community, if he will enjoy those Possessions which were his Fathers’; he also notes that the ‘Son cannot ordinarily enjoy the Possessions of his Father, but under the same terms his Father did; by becoming a Member of the Society’ (Locke, 1988: II.116–117. Cf. II.73). Yet just a few passages later, he seems to say that inheritors of land only give tacit consent to the government (Locke, 1988: II.119–121). Therefore, as Simmons (1993: 86) and others (e.g. Mack, 2013: 86–87) have suggested, the implication seems to be that inheriting tacit consenters can become members. Moreover, this reading is more suited to Locke’s end if the express/tacit distinction was introduced to distinguish those who do or do not have a serious stake in the political community, namely distinguishing between native-born landowners, who do, and mere visitors, who do not (Simmons, 1993: 86–87; Simmons, 2001: 169–171).
The case for membership by inheriting property typically takes two forms. One is to say that by inheriting his father’s land, the son actually expressly consents, given membership is reserved only for property owners (Macpherson, 1962: 249–251). The other is to say that by inheriting his father’s land, the son through his tacit consent becomes, as it were, a ‘loose’ member. While loose members are subject to the same laws as full members in terms of content, they are not in terms of duration; they are members nonetheless. In other words, there are two types of tacit consent: one involving inheritance, which can make people loose members, and another not involving inheritance, which cannot make people members whether perfect or loose (Mack, 2013: 86; Simmons, 2001: 159n, 172; Simmons, 2016b: 429). 4 Since the former, ‘membership for property owners only’ argument, has been largely discredited (Dunn, 1980; Simmons, 1993: 89–90), I will focus on the latter, ‘loose membership’ argument.
While I believe that for Locke, inheritance can be a ‘constraint’ on movement, that is, a strong motivating factor to remain in the community, it does not secure political membership as such (Smith, 2018: 481). As some commentators (Grant, 1987: 124; Hampsher-Monk, 1979: 136; Tuckness, 2016. Cf. Russell, 1986) have pointed out, I believe Locke in the relevant passage is saying that express consent is a ‘precondition’ to inheritance. Yes, the father can require his son to become a member if he wishes to inherit the land. Locke, however, is clear that express consent is needed for membership: ‘Nothing can make any Man so [that is, subjects or members of a commonwealth], but his actually entering into it by positive Engagement, and express Promise and Compact’ (Locke, 1988: II.122). Thus if Locke means what he says here, we should understand the discussion in II.116–117 as follows. The son will be able to inherit his father’s property upon becoming (or someday becoming) a member of that society; but to become a member, the son will have to give express consent.
There is a set of questions that, to my knowledge, have never been brought up in the scholarship, and I believe asking them now will prove illuminating in this context. When the son consents to become a member, to whom does he need to consent? Also, who is it that can grant membership to the son? I figure the government in both cases, but how does this work? Consent, I believe, is to be given to a person authorized by the state to administer citizenship and membership is granted by a person authorized by the state to grant citizenship. The authorized person needs to recognize the consent as consent for the son to become a member, and after that, will confer citizenship upon him. If we accept this formula, it is hard to imagine how the inheriting son can become a member without expressly consenting to the government prior to membership.
To illustrate the point, imagine an American father and American son who move to Canada. The father acquires Canadian citizenship and says to his son: ‘if you want to inherit my land, you must become a Canadian citizen too’. Even if the son says ‘yes’ to this condition, this act of consenting expressly to his father to become Canadian would not in itself make him Canadian. This transaction was between son and father. To obtain citizenship, the son would need to apply for citizenship through the relevant government agency. After all, we would usually suppose that the father qua father, while perhaps in the position to give his property to his son, is not in the position to administer or confer citizenship to his son himself. While the son’s acceptance of his father’s condition might be seen as tacit consent to the government, it is hard to see how, without the further acceptance and conferral by an authorized person, the son could become a citizen. For that, the son would need to expressly indicate to the authorized agency that he wishes to become a citizen.
It is possible that the son’s father is an authorized person. Suppose that the father is authorized by the government to administer citizenship and through attaching the condition to the land and the son subsequently accepting it, that constitutes consent to the government. Likewise, imagine a paternal government. We might suppose in such a society that the father is in a position to administer and confer citizenship to his son precisely because he is also the ruler. Note, however, in both cases the son is expressly consenting to the government through an authorized agent who happens to be his father.
Now imagine that the father is not an authorized person. In such a case, if the son is to become a member, and he only gives tacit consent, then the son’s tacit consent would first need to become express consent to the authorized person. Let me go through the steps. First, there is the transaction between father and son. The son tacitly indicates that he intends to become a citizen. Somehow the government becomes aware of this intent (e.g. they find out about the transaction through a third party or are notified directly by the son or father). Let us suppose further that the government accepts it as an application to become a citizen. The initial tacit consent to the government becomes express consent at this point when the government takes notice of it. Alternatively, we might suppose a case in which the government enacts a law stating that the act of inheriting land from a citizen father will automatically qualify the son as a member too. The son inherits. The act of inheriting, then, is to be construed as express consent to become a member (Ludwig, 2000). Again, in both cases, express consent is invoked. In other words, there seems to be no way round becoming a citizen without expressly consenting to an authorized person at some point if we accept the idea that citizenship is administered and conferred by the government.
As for Locke, he seems to have supposed that the father was not an authorized person. Locke did believe that ‘distinct Powers’ such as paternal power and political power could be found ‘in the same Man’. However, it was important to distinguish between them (Locke, 1988: II.2). Moreover, the father of II.116 was a ‘subject’ and not a ruler. Thus while father qua ruler might be able to confer citizenship upon his son, father qua father would not (see also Locke, 1988: II.73). Therefore, in the case of a father attaching an entangling clause to his land, the son needs first to give express consent to the government through an authorized person and acquire citizenship thereby before inheriting the land from his father. The son may under certain circumstances become a member by simply inheriting the land, but only when that act constitutes express consent to the government (cf. Seliger, 1968: 271). He does not acquire citizenship merely through tacit consent to the government. 5
There is a common-sense objection to the precondition reading, which might make us think that Locke could not and should not have been requiring express consent as a precondition to inheritance. Simmons (1993: 89n) argues that it would be strange to suppose that Locke was saying that people would ‘take no notice’ (Locke, 1988: II.117) of those consenting to join the political society even if express consent was ‘given separately in their turns’. On this view, it would make more sense to say that tacit consent could also make one a member given its stealth nature.
In response, we may first say that in the light of the above discussion, express consent could also be unnoticeable. 6 For example, there could be a law stating that children of citizens inheriting land from their citizen father would automatically be deemed citizens. Those not acquainted with the family might not take notice of the son inheriting the land and becoming a member thereby. Moreover, even if express consent did take the form of an oath, as Simmons holds, 7 and so was more public in nature, it would still be compatible with people not taking notice of it. It seems quite reasonable to suppose that vast numbers of citizens would not bother to acquire information or attend the swearing of an oath by people who, for the most part, would be complete strangers, especially if they live in different parts of the country. In any case, what is important is that while the general public may not take notice of some people becoming members, governments ‘take notice of, and allow that there is a time when Men are to begin to act like Free Men’, at which point such people can decide expressly or (continue) tacitly to consent to the government (II.62).
Membership by Tacit Consent to Paternal Government?
The second case of purportedly becoming a member by tacit consent is by growing up in paternal societies. Many commentators (Franklin, 1996: 411; Grant, 1987: 123–24; Lloyd Thomas, 1995: 36–37; Simmons, 1993: 80, 2001: 163, 2016b: 428) have pointed out that Locke plainly writes in a number of places that some familial societies are transformed into political societies through tacit consent (II.74, 75, 94, 110). That is to say that new political societies are begun by tacit consent. In paternal societies, it was ‘easie, and almost natural for Children by a tacit, and scare avoidable consent to make way for the Father’s Authority and Government’ (Locke, 1988: II.75). However, I believe we can understand the tacit consent here as being something that is sufficient for establishing the father’s government, that is, recognizing it as a legitimate exercise of political power over the son in a given territory, but insufficient for membership (Davis, 2014: 218–222; Grant, 1987: 123–124).
Let me briefly clarify the difference between membership and being obliged to a given government. To become a member means leaving the state of nature and joining the said political society permanently. For this, express consent is needed. Members enjoy protection of their property and the presences of a common judge (Locke, 1988: II.124–126). The political powers – the legislative and executive (and federative) – can be understood to exist for their common interests (Locke, 1988: II.134, 141, 147). To be a tacit consenter in the jurisdiction of a given political society, by contrast, means remaining in the state of nature vis-a-vis that society, while being able to enjoy local protection. During this protection, the consenter is obliged to the law of that society, but as soon as the consenter stops enjoying the goods provided by and within the society, the obligation ends. Through tacit consent, consenters can recognize the power exercised over them as legitimate, but not being members, they can neither be part of that power (unless otherwise authorized) nor expect that power to exist for them. 8
Now, against what commentators such as Simmons have argued, I maintain that the grown-up children do not form a new political society with their father by their tacit consent. One alternative reading of the offending passages is that the children remain in a pre-existing society, that is, the society they grew up in, which would have been created by their parents: the father ‘had been a Ruler from the beginning of the Infancy of his Children’ (Locke, 1988: II.74). And so it was that the ‘Government they had been under, during [pupillage], continued still to be more their Protection than restraint’ (Locke, 1988: II.75). Thus, the grown-up children here who have given their tacit consent might be understood as remaining under their father’s government without knowing that they are only tacit consenters and so are entitled to leave the society should they wish (cf. Locke, 1988: II.102).
Perhaps critics may accuse me of equivocation. In some places when discussing parental power, Locke seems to use the term ‘government’ in the sense of ‘guardianship’ (Locke, 1988: II.59–60), which is to be distinguished from political power. Could it be then, that the above passages (Locke, 1988: II.74–75) are about how children are under the guardianship of the father at first and when they grow up, they do form a government with their father, that is, become members together? 9 Even if this is the case, we can still say that the tacit consent mentioned in this context is not the consent that makes people members of that political community. I will return to this point immediately after I respond to another point.
Another frequently cited passage in favour of the reading for membership by tacit consent is II.94. Locke writes: some one good and excellent Man, having got Preheminency amongst the rest, had this Deference paid to his Goodness and Vertue, as to a kind of Natural Authority, that the chief Rule, with Arbitration of their differences, by a tacit Consent devolved into his hands, without any other caution. (Locke, 1988: II.94)
I now return to the passages in II.74–75 about children’s tacit consent making way for the father’s government. As I argued above, we can accept that the grown-up children did indeed form a political community with their father, but we might distinguish the act of forming the community from choosing its leader. People expressly agree to ‘joyn and unite into a Community’, and indeed enter ‘into Society to make one People, one Body Politick under one Supreme Government’ (Locke, 1988: II.89, 95). This is how they create a political community, through express consent. However, this is compatible with the members of the community not explicitly deliberating who the leader is to be, assuming it to be the father, and thereby tacitly consenting to the father being the ruler. Thus, natural fathers may ‘by and insensible change’ become a political monarch (Locke, 1988: II.76). 10 While express consent is needed to create the community, the ruler might be selected by tacit consent.
The same reasoning applies to II.110: whether a Family by degrees grew up into a Common-wealth, and the Fatherly Authority being continued on to the elder Son, every one in his turn growing up under it, tacitly submitted to it, and the easiness and equality of it not offending any one, every one acquiesced, till time seemed to have confirmed it, and settled a right of Succession by Prescription. (Locke, 1988: II.110)
Too few members? A practical difficulty
So far in this article, I have concerned myself with the consistency of Locke’s position on the consent leading to membership from an interpretative perspective. In this section, I want to respond to a practical concern that is often raised against the implications of the position I attribute to Locke. Given that express consent is the only route to membership, some commentators (Mack, 2013: 87; Simmons, 1993: 81, 84; Simmons, 2001: 160) have suggested that only a tiny fraction of the population would have actually given express consent, so there would only be few members. If this is the case (and I will not be contesting this point), it would raise a number of questions. Who is going to vote and make public policies? Who is going to pay taxes? Who is going to defend the community from foreign invasion? Are we to suppose that the small number of express consenters are going to undertake all these tasks (Mack, 2013: 88; Simmons, 2001: 161)? The existence of these difficulties may have been one reason why some commentators, like Simmons, have expressed doubts about the view that Locke really meant that only express consenters could become members. 11 If, as Simmons argues, some tacit consenters can become members, this problem could be bypassed. However, my reading of Locke rejects this implication. How, then, can we respond to this challenge? 12
I believe Den Hartogh (1990) offers an interesting perspective. He argues that Locke is not excluding large swaths of the population from membership: Locke’s point is that a government that is to be trusted ‘should be given all the credit it needs by an explicit recognition of its legitimacy from the whole of the people’ (Den Hartogh, 1990: 114). Thus, he argues, Locke’s declared aim in the preface to the Two Treatises to ‘make good [King William’s] Title, in the Consent of the People]’ should be seen as ‘an implicit criticism and political programme’, that is, such consent was lacking and so was needed (Den Hartogh, 1990: 115).
I want to take a closer look at the idea that Locke was problematizing the lack of express consenters. I share Den Hartogh’s view that Locke would ultimately see the lack of express consenters, that is, those fully committed to upholding the society, as a problem. However, I keep some distance from Den Hartogh’s claim that this lack is a problem in relation to the legitimacy of William III’s title. If Locke’s concern was simply to justify William’s title by the consent of the people, then tacit consent could equally do the work.
13
By contrast, a society (in a general sense, and not necessarily the England under William) lacking a sufficient number of fully committed members would potentially be unstable, not from the perspective of legitimacy but from the perspective of economic and political stability, and so would need to make an effort to increase the express consenter population.
14
For Locke, the ‘numbers of men are to be preferd to largenesse of dominions’ and the: Prince who shall be so wise and godlike as by established laws of liberty to secure protection and incouragement to the honest industry of Mankind against the oppression of power and narrownesse of Party will quickly be too hard for his neighbours. (Locke, 1988: II.42)
I believe my argument about the initial lack of express consenters not being fatal can be corroborated by adopting a perspective similar to that of Richard Ashcraft’s. When considering the express/tacit consent distinction, Ashcraft suggests that we put Locke’s comments in its textual context, namely to take note that the discussion appears at the end of Chapter 8 where Locke responds to two likely objections to his account of how political societies arise (Ashcraft, 1987: 178–79). Whereas Ashcraft focuses on the second objection – how does the form of consent people give affect their right to relocate? – as the contextual framework for the discussion, I focus and take seriously that the express/tacit consent distinction was more broadly part of Chapter 8, ‘Of the Beginning of Political Societies’.
I submit that the express/tacit consent distinction can be seen from a ‘political societies in the making’ perspective. In other words, Locke’s concern in this chapter was to show how legitimate political societies could be formed, and not that any particular society had reached a high level of political stability in terms of membership. Locke repeatedly writes that ‘any number of Men’ may consent to form a political community, later specifying that these people should be at least ‘capable of a majority’ (Locke, 1988: II.95, 96, 99). We may suppose that Locke was presupposing very small communities emerging at first, which gradually grew into a size where there would be a ‘multitude’ of express consenters who had given their consent ‘separately’ (Locke, 1988: II.117. Cf. Simmons, 1993: 84–85). If this is the case, we may excuse Locke for not addressing some of the questions posed above about the lack of full members. Should there be a legitimate society that does not yet have a sizeable population of express consenters, then the ‘in the making’ perspective would allow Locke to say that such a society would not be stable and would need to get its act together – the burden would be on such societies to attract potential members by good governance (Locke, 1988: II.42; Smith, 2018).
Despite this defence, if Locke is going to have any practical bearing, we might say that he would have at least needed to consider what to do about the possibility of there being only few express consenters. However, does this really pose a problem for Locke (Franklin, 1996: 410)? Let us assume that only members have the full range of rights and duties. The critics may inquire: what of the right to determine public policy and the duty to assist in defending the society against foreign aggression (Simmons, 2001: 161)? These may be problems if we are assuming a modern democracy or a republican model of government. However, even if policies were determined by a small minority, Locke would not consider this to be a problem if these policies were aimed at the common good (Locke, 1988: II.131, 133). Moreover, given that the path to citizenship was open, if people wanted to get involved, they would only need to say as much. 15 If this is an option available to people, the onus would be on them to decide whether or not to get involved. We could say that once their own preservation was secured through tacit consent, they would have the duty to preserve others, perhaps by creating a good political community (Josephson, 2002: 160). Here again, we can adopt the perspective that society is ‘in the making’, and argue that societies might eventually develop to become more democratic. As to defence, members could defend the community themselves, but this need not be the case. While governments might not be able to force tacit consenters to enlist, there may well be willing individuals (in the spirit of George Orwell in Spain) if the political community was worth fighting for (thus again, the emphasis on good governance). Members could also hire mercenaries or, in modern terms, private military contractors. In other words, Locke need not embrace the republicanism of Machiavelli. 16
However, the critics may ask: where would the money to hire mercenaries come from? Tax money surely. But without consent, how can people be taxed (Mack, 2013: 88–89)? I do not see why this has to be a problem. Why can it not be the case that one of the things to which tacit consenters consent is being taxed (cf. Davis, 2017: 687)? The government could provide information about what will be the object of taxation before entry to the country or purchase of property, and so tacit consenters who decide to enjoy the use of such things might be seen as giving their consent to being taxed. Furthermore, land leasing citizens might require, as part of their lease agreements of land to tacit consenters, that a portion of the rent (say, equal to what is required of members) will go to the government; or if they are going to sell their property, they could inform tacit consenters of the condition before the purchase takes place.
One might object in the spirit of Hume (1994; Simmons, 1993: 240) that poor native-born tacit consenters might be forced to acquiesce to onerous taxes. In such a case, people can try becoming members and thereby attempt to change the policy. Alternatively, they can emigrate. Poorly governed communities will likely be left only with the few members, and given that that is self-defeating, the government might change its policies before that happens. Of course, these are precisely responses that Hume would consider unsatisfactory, but there are other possibilities. We may suppose that members would find the tax rates onerous too, and so would be willing to call for change. Or if tax rates are so high to the extent that it threatens people’s subsistence, then they could say that such a government was in the state of war with the members and also tacit consenters subject to it. People qua tacit consenter would still be able to resist the government (Ward, 2010: 83).
The point I am trying to register here is not that the above responses can completely counter the challenge of there being few members. The point, more modestly, is that the problem of small membership at the moment may not be so damning if we take the ‘in the making’ perspective, and also if we cast off some assumptions and givens about how to govern. Such a state is manageable, although in the long run it may not be stable.
Express consenter’s right to relocate?
In this section, I turn to the question of Locke’s views on the express consenter’s right to relocate. Many commentators maintain that this is a right enjoyed by tacit consenters, but not by express consenters. This is perhaps another reason one might find Simmons’s reading about consent and membership more plausible, which gives at least some members (i.e. tacit-consenting members) the right of free movement. Let us consider this question by relating it to a puzzle broached by Brian Smith (2018). The puzzle concerns the right to relocate, and more specifically to the North American colonies (see also Seliger, 1968: 280–283). Smith’s question is that, supposing the colonies were independent political communities, 17 why did Locke not try to validate the status of those emigrating, that is, whether they were express consenters who did not have the right to relocate or tacit consenters who did? Did he suppose that England was full of tacit consenters? There seems to be no reason at first sight why we cannot simply answer in the affirmative, because even if Smith (2018: 473n) is right about believing that joining the Anglican Church was a form of political commitment, we might assume that there was a substantial dissenter population wanting and waiting to emigrate. However, I believe that even if we do assume that there was a large express consenter population in England (suppose it was in the later but not final stages of the ‘in the making’ process), and that the colonies were independent communities (that is, not part of England), validation of status would not have been necessary. This is because I believe Locke’s express consenters do retain a right to move and live abroad.
I think it is worth clarifying what this so-called ‘right to relocate’ means. Again, while tacit consenters enjoy this right, those who are already members of a particular society supposedly lose it. For the tacit consenter, this means that they can move to wherever they want and become members in whichever community they wish until they find their ‘home’. Some commentators (Ypi, 2010: 272–273) have made it seem that express consenters are denied both. Others (Smith, 2018) are not forthcoming about this point. However, loss of the right to relocate does not mean that, for Locke, express consenters are no longer allowed to leave the territory of their community. In fact, it seems that they may, even if they do so for all their life or own property in other territories (Locke, 1988: II.73, 122). Locke mentions foreigners who live ‘all their Lives under another Government’ but who are not made members thereby (Locke, 1988: II.122). If we are to take Locke’s words in II.118 at face value, then the ‘foreigners’ here should be understood as express consenters of another political community. Locke says in II.118 that a child of an Englishman and Englishwoman born in France is neither English nor French, but a subject of no country. Children are not born subjects of any country. If this conclusion is valid, this would also apply to a child of an Englishman and Englishwoman born in England. Neither child is part of or foreign to England: they are at most tacit consenters living where they are (as descendants of English people). Therefore, to become foreign in relation to the English, the child, for example, would first need to become French, and for that, the child when grown up would need to become a member of France through express consent. The fact that Locke’s foreigners are living under ‘another government’ suggests that they have their own government, which would require express consent. Tacit consenters can recognize the legitimacy of a government exercising power over them by giving their tacit consent, but they would not say that the government is their government, at least not yet (recall the discussion above about how express consent makes the power exercised by and over them theirs). In addition, it would be impossible literally to live all your life under another government, because during your minority, you are not a member of either the supposedly ‘own’ or ‘another’ government – if you are not yet a member of any community, the supposedly ‘another’ government cannot be ‘another’ yet without a reference point. 18 We should therefore understand Locke’s foreigners living ‘all their Lives under another Government’ as a reference to their lives after they have become members of a political community. Thus, to put all this together, it seems as if express consenters can live outside their own political community for all their remaining life even after they have become members of their own community.
The point about express consenters losing the right to relocate is more about express consenters not being able to change membership (Casalini, 2008: 122; Whelan, 1981: 648). 19 So in a sense, there is no constraint on the right of movement, only a right of joining or starting a new political community as a member. In response to Smith’s puzzle, therefore, Locke did not have to concern himself with validating the status of prospective immigrants to the colonies. Whether people were tacit or express consenters, they could enjoy living where they wanted. 20 The latter, however, could not become members of the colonial community unless they first became non-members of their original community. Termination of membership would only occur under certain circumstances, namely when the government dissolves 21 through some calamities or when the government cuts a member off by a public act (Locke, 1988: II.121). 22 In principle, then, once people commit to a particular community, they would be expected to uphold it wherever they reside in a manner compatible with the laws of the society of their residence. While some might still find the permanency of membership a drawback, we can at least say that in terms of people’s right of movement, Locke was not as restrictive as he is commonly supposed.
Conclusion
This article has revisited long-standing questions concerning consent, membership and emigration in Locke’s thought. It has shown against recent trends led by Simmons that membership is secured only through express consent. It has also responded to the worry that such a conclusion would lead to impractical consequences. Furthermore, the article revised the assumption that membership imposes restrictive conditions on members’ right to relocate, arguing that express consenters could also move to a different country. While for some, Simmons’s Locke may have and may still seem more sensible, I believe I have been able to show not only an interpretatively coherent account of Locke, but also one in which the practical implications of the theory are defensible.
On a final note, it may be worthwhile to remark how this express-consent-only reading of Locke leaves us with an interesting, indeed radical, possibility to ponder. That is to say, he invites us to re-conceptualize the state of being stateless. As we saw above, Lockean people do not become members of a political society before 21 and possibly after 21 if they cannot find the right one for them. Locke thus introduces a period in which people will inevitably be stateless. I do not believe Locke is an anarchist, but he does invite us to re-evaluate the state of being stateless as one that is incompatible with human rights (UNHCR, n.d.) or the ‘scum of the earth’ state depicted by Hannah Arendt (1958: 269). It may seem odd that Locke would do this in the Two Treatises where he explains the inconveniences of the state of nature and how political society can remedy these (Locke, 1988: II.123–131). The condition of being stateless in Locke’s thought is a subtly balanced one: it cannot be too state-of-war-like to impede freedom in choosing a society (that is, you don’t want people to settle with whatever political society that provides you with protection), but neither can it be too comfortable that people never want to leave it. It is a state you can cope with, but not for too long. In a way, it is a purgatory-like state. Moreover, how people use this period in life has tremendous consequences. This is because while people are stateless, they are also, as it were, soul-searching, looking for their permanent political belonging on earth. Thus the statelessness Locke invites us to consider can be both liberating in that it gives us control over who we want to identify with, but also encumbering in that we must bear the responsibility of our decision or lack thereof. In today’s diverse, multicultural and globalized world, we bear witness to people who struggle to come to terms with their default nationalities and identities (e.g. descendants of immigrants struggling to integrate), or people who see themselves relating to multiple societies in complex and diverse ways (e.g. dual citizens). While there is no space in this article to explore such issues, the foregoing analysis invites us to reflect upon the question of how on a more practical level Locke’s express-consent-only worldview might speak to contemporary problems surrounding citizenship and migration.
Footnotes
Acknowledgements
I am grateful to the editors and anonymous reviewers for their invaluable comments and suggestions. I would also like to thank Dr Takuya Furuta for his comments on an earlier version of this article.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.