There is no notion more fundamental to American constitutionalism than the notion of a “Social Compact,” and there is no thinker more fundamental to the American notion than John Locke. The ideal of a Social Compact as fundamental to human society has, as we saw, roots in Greco-Roman thinking. It also has roots in Judeo-Christian thinking as well, for the people of Israel believed that their very existence as a nation depended upon a “Covenant” made by them with God at Mount Sinai, wherein they had promised loyalty and faithfulness to God, and God had adopted them as his people and promised them a land of their own. This notion of “Covenant” as fundamental to the people of God was picked up by the Reformers, and an entire theology of Covenant was developed, especially in England. [1] In any case, Locke almost certainly knew of this movement, and his political thought is infused with references to Christian themes and Biblical insight, of which the covenant of God with the People of Israel is one. [2] Hobbes and Locke develop the religious idea of a people formed by covenant into the secular notion of a people formed by compact.

What is a Social Compact?

For Locke, a government is formed when a group of human beings, by mutual consent, form together a government which binds them together as a political society and obligates them to submit to the legitimate rule of the society. [3] As mentioned last week, for Hobbes, Locke, and their intellectual followers, governments are formed by essentially free and “governmentless” individuals who are in a “State of Nature,” out of which the covenant to come and form a common government.  This consent can be either tacit, by in fact submitting to and receiving the benefits of the government so formed, or actual, by formal agreement to the government so formed. Locke does not think that this consent needs to be of all the members of the society, but only by the majority of those forming the society. [4] Once formed, such a government is binding until properly altered.

I have previously noted my problems with the idea of a “state of nature,” which in the work of contemporary thinkers, like Rawls, becomes an “original state.” In Rawls this original state has become a purely hypothetical state, once again a conceptual device unsupported by history but necessary to continue one particular theory of democracy. In my view, a more evolutionary, process-oriented defense of the notion of a “Social Compact” is both necessary and possible.

Locke’s Response to Human History

Last week, I mentioned that the most common defect noted in Locke’s theory was the absence of historical evidence. Locke is aware of this argument and gives much attention to responding to this criticism. His first response is that due to the absence of historical information about the earliest state of human nature and the formation of human society, it is not surprising that we have no such evidence. He then gives supposed examples from history, including examples purportedly existing in America among the American Indians. Locke knew of the American Indian tribes, and new of the arguments that they existed in a “state of nature,” lacking the supposed civilization of Europe. [5] We know better that the Indians of North and South America had well-developed societies including both tribal and monarchical forms. In retrospect, this argument looks almost chauvinistic.

This is not the only argument Locke makes from history. He also uses the formation of the Spartan government as an example. [6] Once again, in Locke’s day this particular appeal to history might have force, but the long history of the Greek city states and the gradual evolution of each of their system of government is known to us; and, there was not, in fact, a time when they were without governments as far back into human history as we can look. To the extent that Athens or Sparta give examples of a “Social Compact,” that social compact was a matter of gradual evolution of their institutions and not an act of a people leaving a “State of Nature” by social agreement.

These arguments, which might have had some force in Locke’s day, have been substantially eroded by historical and archeological evidence of the existence of human societies around the world far into prehistory, and such evidence as we have supports the claim that human beings have always been organized into political communities. This would come as no surprise to Locke, for he understands that human beings are social by nature, and that sociability would have always drawn them into some form of society.

It is important to recognize that Locke wrote before Darwin and the gradual growth of understanding of human beings and human societies as resulting from a long process of evolution from more primitive to more advanced forms. The progress of human society from the ancient world, to the Greco-Roman World, to the Medieval World, to the Modern World, and now the slowly evolving Post-Modern World, reflects a slow evolving of institutions having long periods of gestation in human history. This evolutionary approach has the benefit of “fitting the facts” of human history and making sense of why it is the nascent ideas, such as the ideas of republican democracy were invented, fell into dormancy, were resurrected, and became driving forces in the Modern era.

Locke’s Appeal to Reason

In the end, Locke makes an appeal to reason to justify his theory of social compact, but as we shall see, in so doing, he makes a case for another and more “scientific” approach to social compact theory. Here is how he begins his second analysis:

“But to conclude, Reason being plainly on our side that Men are naturally free, and the Examples of History showing that the Governments of the World that were begun in Peace, had their beginning laid on the foundation of the Consent of the People; there can be little room for doubt, either where the right is, or what has been the Practice of Mankind, about the first erecting of Governments.” [7]

Locke goes on to affirm that as far back as one can look in history, the most common form of government is the rule of a single individual. [8] This rule of a single individual has its roots in both the family and the long tradition of parental authority and in the practical impulse of the need for unified command in times of danger. Locke concludes this section with an observation that is important. Locke concluded that whether societies were formed out of families by gradual evolution, with each generation tacitly approving of the leadership, or in response to the need for a military leader, in each case the government existed to promote the public good. [9]

If I were to rephrase Locke, my conclusion would look something like this:

But to conclude, an analysis of history shows that human society gradually evolved out of the human family, to small family groups, to tribal groups, to small urban societies, and by a slow process to the enormous societies that populate the world today. History shows that this history involves an historic preference for the rule of one or a few, but the gradual emergence of democracies patterned in some fashion after Greek Athens and Rome. At most the earliest governments were formed by tacit consent, but the preference gradually arose for larger political groupings for this consent to in some way be actual. Today, even dictators find it necessary to give their regimes legitimacy by holding periodic elections, even if they are hardly free, open, or honest.

This analysis fits the facts that Locke presents and the facts of history as we understand it.

What one can say is that in the West, where the Christian notion of the individual being made in the image of God was strong, the notion that every person had value, and there existed an historic notion of the creation of societies by compact (or covenant), there gradually evolved in the Reformation, Renaissance, and Modern era a strong feeling that societies should be organized around the consent of the people governed.

Locke’s Notion of Governmental Limitations

Unlike Hobbes, who sees no limitations to the rights and powers of a sovereign, Locke is no totalitarian. From the very beginning, Locke believes that “no body was ever instituted … but for the public Good and Safety….” [10] Locke recovers the classic notion that political bodies are formed for the public good, to achieve public human ends, and have no other purpose for existence. As such, there are and ought to be limitations on the power of the state.

Locke’s notion of the limitations of government and its duties gives some clues as to when its dissolution might be justified. For Locke, one of the chief duties of government is the protection of Life, Liberty, and Property. When a government no longer protects the lives of its citizens, their freedoms to earn a living and conduct their lives with as much freedom as possible, and what property they have required, it has ceased to perform the functions for which it was formed and gives it legitimacy.

Locke believes that the right to property is fundamental to human society. In the beginning every man has property in his own person. [11] Governments are responsible to protect that property we have in our own life and being. As human beings labor and create, they have a right to the property that they have created, whether it be physical or intellectual. [12] No government can be legitimate which does not protect the life and property of its citizens.

Locke’s Notion of Constitutional Government

Locke advocates a separation of powers. In particular, Locke believes that there needs to be an independent and supreme legislative power. This is the fundamental characteristic of every commonwealth.  [13] In the end, for Locke, the people rule and the Social Compact is fundamentally executed by the legislative power.

Unlike Hobbes, Locke understands that it is not desirable for one facet of government to dominate without checks and balances. [14] The state needs a strong executive, especially to deal with international conflict. The executive must have the power necessary to protect the common good. [15] This is true because legislatures cannot foresee all the possible dangers to society. [16] Locke, like contemporary theorists, believes that the Executive power must have such prerogative power as enables it to react to unforeseen dangers.

This power of prerogative is both necessary and dangerous, as recent American history reveals. The great expansion of the Administrative state during the last century, the creation and existence of secret agencies designed to protect the people against terror and other foes raise issues of judgement that must be faced.

The Dissolution of the State

It might be noted that Locke lived through a turbulent period of English history. The memory of the revolutions of recent years, culminating in the Glorious Revolution discussed in the last blog, was recent and vivid. He had lived to see established governments replaced, and new that there was no necessary finality in governments. Governments that no longer were instruments of the public good and public safety were to be replaced.

Locke understands that to say that governments are formed by consent, actual or tacit, involves the potential for their dissolution. In speaking of the dissolution of governments, he sets out a distinction that I believe is important for American society today: a distinction between societies and polities. Societies are the product of human culture through generations. Thus, there is an American society that could survive the end of American democracy. There is a Chinese society that could survive the end of the current regime. There is a European society that could survive the dissolution of the European Union. However, the reverse is not true. Political organizations evolve out of a given society, and the dissolution of that society, with its given social mores and values, necessitates the dissolution of a government. “…where the Society is dissolved, the Government cannot remain, that belongs to the impossible….” [17] This is an important idea to get firmly fixed in our minds: Where a society dissolves, the government of that society cannot remain. This is not to say that the existing government will not fight to remain-it will. But, the fight is doomed over the years, because the foundation upon which the government was formed and rests no longer exists. In the end, the people are the judge of whether the Social Compact has been broken and a change in government is necessary.

Conclusion

The condition of American culture gives reason to ponder deeply the ideas of Locke. English democracy evolved out of the fertile ground of English society, including the religious presuppositions. We live in a world much different than that of Locke, or the Founders of our nation. This requires a consideration of the need to solidify the social bonds of our society and moderate its dissolution in endless political conflict. It also gives us reason to ponder how to overcome the inequalities of our society and to see that all Americans have the benefits of the creation and ownership of the results of their labor.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] See, Donald S. Lutz, The Origins of American Constitutionalism (Baton Rouge, LA:  Louisiana State U Press, 1988), 43 and Lynn D. Wardle, “The Constitution as Covenant” (BYU Studies copyright 1987), downloaded February 7, 2021, https://byustudies.byu.edu/article/the-constitution-as-covenant/

[2] See, Nathan Guy, Finding Locke’s God: The Theological Basis of John Locke’s Political Thought

(London, ENG: Bloomsbury Press, 2020).

[3] [3] John Locke, Two Treatises of Government Revised Critical Ed. (New York, NY: Mentor Press/Cambridge Press, 1960, 1963), 376. All quotations are from this edition.

[4] Id, at 376.

[5] Id, at 379.

[6] Id, at 379.

[7] Id, at 380.

[8] Id, 380-386.

[9] Id, at 386.

[10] Id, at 386.

[11] Id, at 328.

[12] Id, at 329-331.

[13] Id, at 401.

[14] Id, at 403.

[15] Id, at 424-425.

[16] Id.

[17] Id, at 455.