Front Page Titles (by Subject) Locke, Consent, State, and Property - Literature of Liberty, Spring 1980, vol. 3, No. 1
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Locke, Consent, State, and Property - Leonard P. Liggio, Literature of Liberty, Spring 1980, vol. 3, No. 1 
Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.
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Locke, Consent, State, and Property
“A Note on Locke’s Theory of Tacit Consent.” The Philosophical Review 88 (April 1979): 224–234.
John Locke’s effort to establish individual consent as the foundation of all government authority led to numerous difficulties which the philosopher was at great pains to resolve. Bennett views Locke’s theory of tacit consent in the Second Treatise (1690) as a significant example of Locke’s convoluted and ultimately unsuccessful attempt to establish the principle of consent.
At first, Locke’s principle seems unexceptionable: power legitimately exercised requires the assent of the naturally free men upon whom it is exercised. A basic problem arises, however, owing to the territorial nature of states. How many British subjects in Locke’s time, for example, had ever acquiesced to their sovereign’s authority over the theory of tacit consent was intended to resolve. Locke asserts that anyone wishing to enter the territory of an established government has tacitly agreed to obey its laws.
At the very outset, an analysis of this theory requires a clear understanding of what the term tacit means. By discussing a series of hypothetical examples, Bennett strives to refine this notion. He essentially concludes that an action (or even omission) signifying agreement should be of significance only as a sign. Raising or lowering one’s arm, for example, is normally an action of neutral import. Thus, raising one’s hand has served long and well as a sign of unspoken agreement.
Following the logic of this clarification of the term ‘tacit’, Bennett asks whether the simple desire to enter a particular country might signify motives other than assent to the nation’s legal code. Obviously it might. How does Locke then justify prohibiting entry into a country of those who have not so consented? To answer such an objection, Locke advanced a theory of property.
The Lockean state is formed by the voluntary association of independent landowners. These holders of property establish uniform rules by which others may have access to their land. Thus, in response to the question of the right of entry, Locke affirms that anywhere a person goes in a country he is on land that belongs to someone. The conditions under which the property owner holds his land allows him to bar entry to anyone who does not consent to the established rules (laws)of proper conduct. To enter his land without granting such assent constitutes trespass.
Locke’s justification of political power creates, in Bennett’s view, as many problems as it purports to solve. Can a person really consider himself “free,” Bennett asks, if he is born into a territory entirely owned by others? While he may theoretically withhold consent and not be subject to the landowners, he would violate the natural law in so doing. In the state of nature, Locke’s landowners behave as little despots, exercising all the powers governments will eventually acquire. A commonwealth only makes this power collective. As a result, anyone wishing to avoid subjection as well as an affront to the law of nature has but one choice open to him: he must acquire land which is not owned by anyone else.
Prof. Bennett goes on to question Locke’s account of the origin of property. He denies that rights of ownership can exist apart from governmental or social institutions.
Thus, Bennett concludes that Locke has failed to reconcile the consent doctrine with the territorial character of government. Locke’s implausible doctrine of property undermines the appeal of the consent doctrine. Considering the flimsiness of these two essential links in Locke’s argument, there exists no satisfactory union between consent and the territorial nature of the state.