Actual Social Contract: A Philosopher's History of Social Contract through Locke

ACTUAL SOCIAL CONTRACTA PHILOSOPHER'S HISTORY OF POLITICAL OBLIGATION THROUGH

LOCKE

Michael DavisCenter for the Study of Ethics in the Professions

Illinois Institute of TechnologyChicago, IL 60616-3793

[email protected]

773-288-8348 (home)312-567-3017 (office)

September 19, 2002

Frontispiece: An Actual Social Contract

Whereas sundry Mischiefs and Inconveniences have

befallen us, and more and greater may, in regard of want

of Civill Government, his gracious Majesty haveing

settled no order for us, to our knowledge, we whose

names are underwritten, being Inhabitants upon the River

of Pascataqua [now the Piscataqua, Maine's southern

border] have voluntarily agreed to combine ourselves

into a body Politick, that wee may the more comfortably

enjoy the Benefits of his Majesties Laws, and doe hereby

actually engage ourselves to submit to his Royall

Majesties Laws, together with all such Laws as shall be

concluded by a major part of the Freemen of our Society,

in Case they be not repugnant to the laws of England,

and administered in behalf of his Majestie. And this wee

have mutually promised, and engaged to do, an[d] so to

continue till his excellent Majestie shall give other

orders concerning us. In witness whereof Wee have

hereunto set our hands, October 22 [1641]. In the 16

year of the Reigne of our Sovereigne Lord, Charles by

the grace of God, King of Great Britain, France and

Ireland. Defender of the Faith, &c.

Subscribed by Thomas Larkham [and forty others]

Table of Contents

Commendatory Preface.......……………………………………………………………..iii

Acknowledgments…………………………………………………………………....v

Introduction.........................................iv

Part I. The Prehistory of the Actual Social

Contract 1

1. Where to Start?.............................3

2. Hebrews and the Biblical Covenants.........19

3. Athens: Crito, Republic, and Politics............23

4. Romans: Cicero, Augustine, and Justinian. . .39

Part II. ..............................Contract Begins

47

5. Feudal Oath and Consent in Person..........49

6. Early Consent: The Thirteenth Century......61

4

7. From Consent in Person to Consent by Proxy. 73

Part III. The Third Principle of Consent.............79

8. Modus: Consent in Parliament about 1320....81

9. Majority Vote and Other Refinements, 1320-

1600 91

10. From Proctor to Picture...................111

11. The Reformation, Hooker, and Consent by

Legislators 119

12. Revolutionary Ideas of 1647...............135

13. Civil State, Political Obligation, and

Representation 153

Part IV. Contract Theory Before Hobbes.............169

14. The Question..............................171

15. The Reformation, Religious Wars, and Modern

Theory 177

16. Calvin, Ephors, and Resistance............181

17. French Theory, Governmental Contract, and

Junius Brutus 187

18. Brutus: Rights Inalienable by Nature......197

19. Brutus: Rights Inalienable in Practice....203

20. Buchanan and Hooker.......................209

21. Althusius and Grotius.....................213

Part V. Hobbes, Locke, and Actual Contract. . .221

22. Hobbes' War on Contract...................223

23. Locke's Very Practical Problem............239

24. Property and Locke's Civil State of Nature 249

25. Locke's Political Society.................263

26. Three Hundred Years After Locke...........279

Bibliography........................................293

Index ..............................................305

Commendatory Preface

Michael Davis is one of the generation of

philosophers that came of age during the decade

that spanned the interval between the

assassination of President Kennedy in 1963 and the

resignation of President Nixon in 1974. Between

its dramatic endpoints, this period included the

achievements of the civil rights movement and the

travails of the Vietnam War. It was a time when

questions of legal and political obligation

possessed an intense practical urgency. It was

also a time in which the intensity of topical

discussion, against a background ideal of

“participatory democracy”, made it possible to

think that in some sense a re-founding of

political and civil society was in progress.

Everything seemed up for decision, not because

history was irrelevant but because it seemed to

have thrust this generation into circumstances not

unlike those of 1789. Whether one’s interest was

practical or merely theoretical, a fundamental

question inevitably arose: How can anything be

iii

decided in a binding way? How can what happened

before govern what happens next? This is a problem

that has absorbed Michael Davis over the years:

How can we be bound to follow any political

decision regardless of its content?

The idea that the legitimacy of government

rests upon the consent of the governed has taken a

deep hold—so deep, in fact, that we risk losing

sight of how it had to struggle against and

overcome the contrary idea of a divine or natural

right to rule. One manifestation of this

forgetting is the recent prominence of theories of

hypothetical consent, rather than actual consent, in

political philosophy. As Davis shows, this

prominence tends to distort our understanding of

the practical problems that Grotius, Hobbes,

Locke, and other writers of the great tradition of

political philosophy were concerned with (and all

of them, one might note, were indeed responding to

pressing contemporaneous issues). By recovering

this vital intellectual history, this book is a

significant achievement and a valuable service to

political and legal theorists.

The major theme traced here—“actual” social

contract—importantly supplements the

iv

investigations of intellectual historians such as

Quentin Skinner, Richard Tuck, Knud Haakonsen,

and Jerome Scheewind. But it is more, for Davis

is also engaged with a range of currently

prominent political philosophers, including

Robert Paul Wolff, Gregory Kavka, Jean Hampton,

David Gauthier, and John Simmons. His

disagreements with them are always clearly put,

and are far from merely exegetic; for the account

he gives of the concept of social contract builds

powerful support for his basic idea, that

political and legal obligation can be usefully

distinguished, and that actual consent can be

defended as a ground of political obligation.

That his account is no more orthodox now than it

was when he first proposed it in no way

diminishes the fact that, even more than before,

it merits serious discussion.

William A. Edmundson

Georgia State University

v

Acknowledgements

No one writes a book alone. Yet, except for the

author, few of the contributors get much credit. Most

get none at all. We remember debts receivable better

than debts payable. A book written over many years is

even more likely to seem entirely the author's own doing

than one written quickly. Debts long due are forgotten

by creditor as well as debtor, memory's tendency to

erase serving as a statute of limitations. Or the

creditor may die, leaving no one to recollect; even

nature works for the debtor. Or, at least, that is what

a debtor may tell himself, especially one who, with all

debts remembered, might have to choose between

Acknowledgements deliberately incomplete and

Acknowledgements longer than the rest of the book. With

that apology, I here acknowledge the few debts I

actually recall: to Fay and Cal Sawyier, the first to

read the book through and to suggest many improvements;

to Robert Ladenson, another early reader, for

encouragement; to participants at departmental

vi

colloquia, who heard and commented upon an early version

of one chapter or another; to many anonymous reviewers

who helped me to see how much more I had to say; and to

all those editors who, though rejecting this book for

one reason or another, suggested further improvements.

vii

viii

Introduction

This book joins several dozen with "social

contract" in the title. Most—like Brian Skyrms' recent

Evolution of the Social Contract—are on subjects related to mine

only by analogy; they show the enduring appeal of the

term "social contract" rather than of the theory or

practice.1 Of the dozen or so that actually are about

the social contract strictly so called, less than half

offer a history of social contract. Of these, J.W.

Gough's—though originally published in 1936—remains

the chief.2 Like the others, his is primarily about

theories or "ideas".

No one writes a book to leave the world as it is. I

have written this one to offer an interpretation of the

social contract out of favor among theorists for a long

time: the social contract is a living practice, an actual, morally-binding

agreement among members of a political society (a society distinct

from both state and government). What I have written is

not a history of ideas so much as a history of practices

or institutions (though it is both), more a critical

supplement to Gough and his competitors than a

replacement. This is a book for the thoughtful citizen

as well as for the philosopher, political theorist, or

intellectual historian, an attempt to use history to

understand our political obligations—the moral

obligations some of us have to the law of our own

country (more or less) independent of what the law

happens to say. This book is about a relatively unusual

obligation, not legal obligation, political legitimacy,

social justice, or morality generally.3

Those who know my work in professional ethics may

wonder how I came to write a history of social contract.

What has the social contract to do with professional

ethics? Those who do not know that work may soon be

wondering something else: why a history of social

contract that stops (more or less) with Locke? What

happened to Rousseau, Kant, and (most important of all)

Rawls? These questions are in fact closely related.

Their answer, a bit of intellectual autobiography, may

also provide a reason to read on.4

My interest in social contract began in graduate

school, more than thirty years ago. After rejecting the

first topic I proposed for my dissertation, "the

possibility of a science of ethics", my advisor, Richard

Brandt, handed me a copy of Hanna Pitkin's new book The

Concept of Representation and asked, "How about something on

this?"5 What I found when I read Pitkin was not what I

had expected. Without a practical question to discipline

them, ideas about representation seemed to run wild. The

best question for keeping representation under control

seemed to be, "What has this to do with the consent of

the governed?" Political consent seemed to be the

foundation of political representation. Questions of

political consent led back to traditional social

contract theory, the only extended discussion of

political consent we have. I was soon re-reading Plato's

Crito, Hobbes' Leviathan, Locke's Second Treatise of Government,

and Rousseau's Social Contract, thinking these works to

represent all of social contract theory, more or less.6

That was during the late 1960s. The war in Vietnam

had made draft resistance a topic of casual conversation

in the United States. I was of draft age, in good

health, and not a conscientious objector: my obligation

to go if called was a question of practical moment,

something solid against which to test abstract argument.

There was also a good deal of talk about "revolution".

The "right to revolution", so central to traditional

social contract theory, was like a dusty rifle hanging

over the fireplace, forgotten in plain view: some noise

outside and the whole family rushes to take it down.

Radicals seemed as likely to quote Thomas Jefferson as

Mao Tse-Tung. Social contract seemed much more alive

than the textbooks said.

While Hobbes, Locke, and Rousseau seemed primarily

concerned with what makes a government legitimate, I

(like the Crito) was more concerned with what obligations

I had to my government, legitimate or not. That

difference did not seem large. Any obligation I had to

the draft law must, I thought, rest on something like a

contract. The draft law itself, its "content", seemed

morally indifferent—much as most of what I promise is

morally indifferent before I promise. This moral

indifference is, of course, not absolute, a choice about

which morality has nothing to say. Even much I promise

is in fact morally good ("Yes, I promise to help you

move tomorrow"). The draft law is morally indifferent

only in the sense that, before I "contract" to obey it,

obeying it, however good to do, is not a moral

requirement. We can have moral reasons to do an act

without being under a moral obligation to do it.

Morality demands relatively little of us, recommends

more, and leaves the rest to judgment, with little

guidance. On many questions, even our self-interest, if

pressing enough, is sufficient to justify omitting a

morally good act.

My moral obligation to obey the draft law, if I had

such an obligation, must, I thought, come from some

formal attribute of the law, something that operates

like a promise; law as such has no such claim on me.

Since I did not believe I had actually promised to obey

that law, I found myself asking what the source of the

promise-like obligation could be. Many of my

contemporaries who asked the same question either seemed

happy to admit that there was no political obligation

(philosophical anarchists like Robert Paul Wolff) or

thought the obligation to be independent of an

individual's choice, that is, like the obligation not to

kill rather than like the obligation to do what a

particular promise requires.7 They (the Thomists, for

example) treated "Obey the law" as a basic moral rule

(rather than deriving moral obligation to law from some

other moral rule, such as "Keep your promises", as

social contract theory does).8 Social contract seemed to

offer a middle way, allowing more obligation to law than

the anarchists could, obligations I recognized, but

making those obligations contingent on my free choice,

something moral-rule theorists could not.9 Social

contract theorists seemed to say what I felt.

I eventually distinguished three principles of

consent to law. The first is direct consent, that is,

consent in person: I come under an obligation to obey a

law much as I would if I made a promise to obey it. I act

for myself in person, and in my own name, consenting law

by law (no matter how general or particular the law in

question). The "as...if" is to allow for what lawyers call

"a contract implied in law". A contract implied in law

is exactly like any other contract in effect. It differs

from other contracts only in binding because of the

moral rule "Don't cheat" (the principle of fairness)

rather than "Keep your promises" (the principle of

fidelity). The moral obligation I have to play by the

morally permissible rules of a cooperative game—chess

or football—that I voluntarily enter is a good example

of such a promise-like obligation arising from "Don't

cheat" rather than "Keep your promises".10

The second principle is consent by proxy. I do not

consent in person; another consents in my name. I am

obliged by what my proxy does for me. I am passive and

she acts with my authority. She represents me, that is,

consents for me just as I would if I were present in

person. She is me, by other means.

Not so with the third principle of consent, consent

by legislators. The legislators are not me. They act neither

in my name nor as I would if I were present. They have a

corporate capacity, a power coming from the society for

which they legislate. Their power is the same whether I

belong to the society or not: it extends to every member

of the society simply because of membership. Their power

over me depends only on whether I am a member. The 1641

agreement of the "inhabitants upon the River of

Pascataqua" [sic] quoted at the beginning of this book

is a good example of a contract creating this sort of

corporate representation.11 Provision for decision by

majority vote means that the "major part" of the society

can act both for itself and for the rest. Like the

majority, the minority will give its consent to

individual laws through the legislative process, not by

consent in person or by proxy.

Consent in person and by proxy are relatively

uncontroversial principles. Even consent by legislators

is, so long as those joining do so by their own express

consent (as the inhabitants upon the Piscataqua did).

But consent of that sort did not seem to answer my

question (how did I come to have a political obligation

—supposing I have one?). I was sure that I had not

consented in person or by proxy to the draft law.

Consent by legislators could answer my question, if only

I could explain how membership in the society in

question could be morally obliging in the way promises

are rather than in the way not killing is. Explaining

that did not seem easy. The obligation must ultimately

come from entering "the society". The way I then

(mistakenly) thought of myself as coming into the

relevant society, birth, did not seem at all like making

a promise. Identifying a mechanism sufficiently like a

promise is, of course, the great difficulty in deriving

political obligation from actual consent.

I put all this into my dissertation.12 The four

members of the committee before whom I had to defend it

responded much as David Hume had in his classic 1744

critique "Of the Original Contract":

human affairs will never admit of this consent,seldom even of the appearance of it;... conquestand usurpation, that is, in plain terms, force, bydissolving the ancient governments, is the originof almost all the new ones which were everestablished in the world... If scarce any man, tillvery lately, ever imagined that government wasfounded on compact, it is certain that it cannot in

12. Michael Stuart Davis, Representation and Consent: An Inquiry into theFoundations of Political Obligation (Dissertation: University of Michigan,Ann Arbor, 1972) did not turn out as I had planned. Three yearsafter I started writing, I was only half way through the outline—and had not yet reached representation. While I was happy to go onuntil I reached the end, the chair of my dissertation committeewas more practical. One September day in 1971, he observed that,at 350 pages, my dissertation was already the second longest inthe history of the department: "A dissertation is not supposed tobe a career, only a test of your ability to have one. You'vepassed the test. Now, get on with your life."

general have any such foundation.13

Though the committee found this objection from history

decisive, they passed the dissertation and urged me to

continue work on the theory.

But what little theoretical interest there was in

actual consent began to disappear with publication of

John Rawls' A Theory of Justice in 1971. Soon all the talk

was of hypothetical consent. Hypothetical consent even

spread backward into the history of philosophy.

Philosophers I had thought to be working on something

like my problem, especially Hobbes and Locke, were now

interpreted as precursors of Rawls.14 Their state of

nature was not the bad history Hume had judged it; it

was an early version of Rawls' original position (a

device of theory, not practice).15 Actual consent to law

looked even more contrary to what everyone knew than it

had when I defended my dissertation. Journals that a few

years earlier might have published work on actual

consent were no longer interested. Political philosophy

had left me behind.

Robert Nozick's Anarchy, State, and Utopia (1974) is no

exception.16 Nozick did raise questions about the

justification of taxes much like those I had entertained

about the draft. That might have led him to a theory of

actual consent. After all, the draft is an in-kind tax.

But Nozick was not interested in the formal moral

obligation that distinguishes consent from the general

theory of justice. His focus was the right of government

to tax, not on the obligation of citizens to pay. The

great libertarian flowering of the 1970s followed Nozick

in this, as in much else. Their focus was on what limits

government power, not on what might augment it.

It was during this period that I drifted into

professional ethics, first teaching a course in legal

ethics in 1975 and then, as I began to see theoretical

issues, to write about professional ethics. Eventually,

I reached the foundational question, "What is

professional responsibility?" The most common answer

then, especially in medical ethics, was that

professional responsibility is simply moral

responsibility in the context of a profession. Those who

accepted this answer tended to dismiss many of the

professional obligations embodied in codes of

professional ethics as "mere etiquette", not morally

obliging because not part of ordinary morality. Those

who accepted this answer were the professional-ethics

equivalents of philosophical anarchists.17

What seemed obvious to me, though at first not to

many other theorists, was that professional

responsibility consisted (in large part at least) of

following the (morally-permissible) rules of a

profession's code of ethics, especially those not morally

obliging because of their content. What distinguishes a

profession from a mere honest occupation is precisely

holding its members to a standard higher than law,

market, and ordinary morality do. The standard cannot be

higher unless it goes beyond ordinary morality. To

understand professional ethics as merely applying

ordinary morality in the special circumstances of a

certain occupation is to miss just what is special about

professional ethics. So, if "professional etiquette" is

morally binding at all, and most members of professions

seem to think it is, it has to oblige for some formal

reason (that is, a reason more or less independent of

what, in particular, the code of ethics says). Here, it

seemed to me, was my old problem in a new context.

The new context was, however, not just another

context. Professions differ from governments in one way

that avoids Hume's critique of social contract. No one

supposes force to be the foundation of professions. Most

professions are plainly voluntary associations. One must

not only apply for admission but also establish her

qualifications before she can be admitted. Any member

can leave anytime she wishes. When enough leave, the

profession disappears. I therefore had no trouble taking

the machinery of actual consent I had developed for

political obligation and applying it to professional

obligation. My work in professional ethics has, in large

part, been an application of my early work in political

philosophy.

But it has been more than an application. As I

applied the theory of actual consent to the professions,

I ran into objections, had to make refinements to

dispose of them, and so—in a haphazard way—have worked

my way through what are also the major objections to

social contract as a theory of political obligation. In

some professions, such as law, joining the profession

actually requires an express oath taken during a formal

swearing in. But for other professions, such as

engineering, any promise-like obligations arising from

membership must arise from something more like implied

consent.

I came to see my old problem more clearly. I had,

following Hobbes, originally thought of governmental

legitimacy and the obligation to obey the law as two

sides of the same problem. I had assumed that the rights

of government over me are coextensive with my political

obligations. The professions suggested another

possibility. Political obligation is not necessarily a

characteristic of all legitimate governments but only of

those in which some (but probably not all) of the

subjects are involved in a common undertaking resembling

a profession, what the inhabitants along the Piscataqua

called "a body Politick"—and I shall call "a political

society". Political obligation might require consent

even if legitimate government does not (just as

professions might involve obligations mere occupations,

however legitimate, do not). A government enjoying my

consent would have a moral claim on me it would not

otherwise have, a claim in addition to that of justice

that any decent government would have while I remain

within its jurisdiction, a moral claim in addition even

to the allegiance I would owe a government that favors

me with the special protection Americans call

"citizenship" (and the British call "being a subject").

The typical response to illegitimate government is

flight or revolution; the typical response to absence of

political obligation is apathy or at least a focus on

what we owe the government for what it does or has done

rather than on what we owe because of what we have done.

A legal system owed political obligation has a moral

authority others lack.

For a profession joined without formal oath, what

creates professional obligation is carrying on the

appropriate occupation as a member of that profession, that is,

carrying it on in a way that invites the expectation

that one will act according to its code of ethics (and

related standards of practice). For example, I would

come under a formal moral obligation to abide by the

code of ethics of the American Society of Chemical

Engineers if, with the proper education and experience,

I presented myself for a job as a "chemical engineer"

rather than merely as someone who "knows a lot about

chemical engineering". Carrying on the occupation as a

member of the profession (a "chemical engineer") claims the

benefits of a practice (the profession of chemical

engineering) that others, the other members of the

profession, have generated: Who would advertise for a

"chemical engineer" if all they wanted was someone with

suitable experience designing, building, or maintaining

a certain chemical plant? A chemist or technician might

do—and cost less.18

Claiming to be a chemical engineer is express

consent in one respect but implied in another

(suggesting that this distinction is itself inadequate).

To say "I am a chemical engineer" is, of course, an

express claim of membership in the profession. In this

respect, it is express consent. But, in another respect,

the consent is implied. While I expressly claim to be a

chemical engineer, I do not expressly agree to abide by

the profession's code of ethics. I may well not even

realize that claiming to be a chemical engineer commits

me to a code of ethics—or even that engineering has a

code of ethics. I may claim to be a chemical engineer

only to have the benefits that go along with being so

recognized (and without any idea why those benefits

exist). My claiming to be a chemical engineer is

nonetheless morally equivalent to my expressly agreeing

to abide by all the rules of the profession. Why?

Generally, doing what a professional code requires

makes sense—"is rational" in something like the

economist's sense—only if (most) other members of the

profession do the same. The code imposes constraints;

the reward for those constraints is in overall effect—

on the public, clients, employers, reputation of the

profession, or the like. A profession is, in this

respect, a cooperative practice. No member of a

profession practices alone. Considerations of fairness

therefore seem to impose on those who claim the benefits

of such a voluntary practice a (prima facie) moral

obligation to do their fair share to maintain the

practice, including follow the code of ethics (whatever

in particular it says). This is a formal moral

obligation, one deriving from fairness rather than

fidelity.19 For political theory, the problem is to find

a similar mechanism to generate political obligation (a

formal moral obligation to obey the law). What is the

cooperative practice that defines membership in

political society for those who do not (like the

inhabitants along the Piscataqua) come in by express

consent strictly so called (literally subscribing to the

contract)?20

As my thinking developed along these lines during

the 1980s, I read the history of social contract as I

had learned to read the history of professions. Each

profession is a temporal entity, coming into existence

at a particular time and place. It is also a historical

entity, not only existing in time (as any temporal

entity must) but developing over time in ways at once

hard to predict and yet understandable in retrospect. No

two professions are alike. The idea of profession is

also historical. There was a time when there were no

professions and no one had the idea of one. There were

occupations corresponding to some of our professions—

medicine, the law, and so on. They might even have been

called "professions" (in the old sense of "honest

occupation" or "calling"). What these precursors lacked

was an understanding of the occupation as more than a

lot of people doing much the same work. They were not

organized so members could earn their living by serving a

certain moral ideal in a way they could not as

individuals. Professions existed before anyone realized

how different they were from their precursors. At first,

they were described in older language (for example, as

"guilds" or "gentlemen's clubs"). Though catching

something important about them, the older language was

also often misleading. Theorists helped develop a new

language for the new practice, but theory took a long

time to catch up with practice. Indeed, whether it has

caught up remains controversial—and perhaps always

will. Why should professions stop changing now?

The first professions (in something like today's

sense) appeared in England soon after 1800, beginning

with the apothecaries. England seems to have been first

because it had a weak state (unlike France), a robust

free market (unlike much of the world), and

practitioners in certain occupations ("gentlemen") who

wanted to make their living in ways morally better than

law, market, and morality then required. England may

also have been first because it had a long history of

private associations formed to carry on what in most

countries would have seemed public business.21 Hume

ended "Of the Original Contract" with the taunt: "What

authority any moral reasoning can have, which leads into

opinions so wide of the general practice of mankind in

every place but this single kingdom, it is easy to

determine."22 The answer to that taunt is, "Not so

easy!" What is true of professions might also be true of

political societies. A new practice must begin some

place. Why not in "this single kingdom"? Why not a

history of social contract similar to the history of

professions?

This book offers such a history (or, at least, the

sketch of one). Part One shows that there was no social

contract in ancient times, sharpening our concepts along

the way. Once we understand that social contract is

about political obligation rather than legal obligation,

legitimacy, justice, or morality generally, we can see

that even the Crito is not about social contract. Part

Two begins with a world in which there is much

contracting but no practice of political consent. The

"government" in question, the antecedent of Hume's own,

was more like Nozick's limited "protective association"

than the conquering or usurping powers Hume saw almost

everywhere in history.23 Part Two describes the early

history of the principle of (political) consent, the

appearance first of a principle of personal consent and

then of proxy. Notable for their absence are both

ordinary lawmaking and majority rule. Part Three

continues the story. The characteristic practices of

consent by legislators slowly develop, along with the

characteristic language of representative government,

including disputes about who should vote and what

constitutes "fair apportionment" of representatives. By

1650, the practice is recognizably modern.

Part Four doubles back, focusing not on the

practice of (political) consent but on the theory that

attempted to make sense of it. There was almost a

century of such theory before Hobbes. Most of the early

theorists, lawyers rather than philosophers, are clearly

not concerned with hypothetical consent. They seem to be

construing actual contracts using the usual techniques

of the law. Their primary concern, however, is the

obligation of the king rather than of his subjects; the

right of subjects to resist, not their obligation to

obey. This contract theory is, in this respect (as in

some others), pre-modern.

Part Five reads Hobbes and Locke as carrying on a

discussion about actual contract with their predecessors

—rather than, as is now common, carrying on a

discussion about hypothetical contract with us.24 The

result of this backward reading is that Locke has more

to say to us than when read as a theorist of

hypothetical contract; Hobbes, less. Locke offers the

best interpretation of the principle of consent by

legislators we have.25 Locke also seems much more

attuned to practice than Hobbes. Rousseau and Kant are

not even writing on the same subject.

The subtitle warns that this is "a philosopher's

history". The warning means that readers should not look

for the usual dividends of historical research, the

splendors of an unsuspected archive. Throughout the

book, I rely on historians to provide the documents, the

social background, and (generally) even the

interpretation of the past. I cite a source only when I

think the reference will be of use to philosophers,

political theorists, or the ordinary interested reader—

or when I think there has been an important mistake.

That warning should, however, not be understood to

warn historians off. Philosophers occasionally prove

useful to historians by re-arranging old facts. Such

usefulness is more likely when, as here, an unusual

theory disciplines the re-arranging. Historians may, for

example, find that my reconstruction of the process by

which England moved from unanimous consent to majority

rule suggests one or more interesting lines of research;

they may also find some of my distinctions helpful, for

example, that between "consent" (in the loose sense) and

"contract" (strictly so called).

Nonetheless, my primary hope for this book is

philosophical, to undermine the intuitions that seem to

have stood in the way of any theory of political

obligation relying on actual consent. Actual consent is

not the philosopher's dream Hume makes it seem, or even

the "idea of reason" Kant allows it to be. It is,

instead, the way much of Europe (and some of its

colonies), certainly operated for several hundred years

and may, on the evidence, operate now; we will

understand the world better if we understand social

contract as I propose. That, anyway, is the proposition

I want readers to come away from this book willing to

entertain as a possibility worth further consideration.

Having begun where my dissertation ended, this book ends

where the dissertation began.

Notes

PART ONE: The Pre-History of Social Contract

If we ask whence the Franks and other Germanicpeoples derived the idea of expressing theconditions governing their monarchy by the formulaof a pactum, the answer may be, partly from theirinheritance of Roman and other classicaltraditions, no doubt familiar in some degree, ifnot at first hand; but another source, it canhardly be doubted, was the Old Testament. Thehistory of the Jews is full of covenants of variouskinds, and their whole career as the chosen peoplerested on such a basis. It is recorded, forinstance, how God made a covenant with Noah and hisposterity, that the flood should not destroy theearth.—J. W. Gough, Social Contract (1957), p. 27.

The claim that the ancient Hebrews, Greeks, or

Romans had the idea of the social contract, even in

nascent form (and even hedged with "may" and "partly"),

depends upon misreading what they said. We cannot just

assume that "agreement" means "contract" or that any

contract concerned with law is a moment when the idea of

social contract enters history. There are at least two

reasons to doubt that we derive our ideas of social

contract from the ancients (or even that we "may" have).

One is that, if we take what the ancients actually said

seriously, it is plain that, while what they said is

generally sensible, it draws on ideas of which the

social contract is not one. The other is that the

practices typical of social contract seem, if ever they

existed in the ancient world, to have died out long

before they could have passed to those German-speaking

gangs who, smashing the lamp of classical learning,

plunged Europe into its dark ages. We are left to wonder

how much of our most enlightened political ideas

originated among those ill-educated brutes.

Chapter 1

Where to Start?

By "contract" I mean a promise, exchange of

promises, or any other morally permissible act, however

complex, having the same effect morally as a promise,

whether legally binding or not. Most contracts,

especially "social contracts", arise from an exchange of

promises or its equivalent rather a simple promise. But,

since the law recognizes "unilateral" contracts as well

as "bilateral" and "multilateral", I see no reason to

exclude unilateral contracts by definition. I want my

use of "contract" to track legal usage as closely as

possible.26 Tracking legal usage is, however, not

without cost: I have inserted "morally permissible"

before "act" to exclude obligations created by

unilateral wrongdoing. The obligation of a tort feasor

to set things right is not a contractual obligation,

even though it does arise from an act and does create a

legal (and moral) obligation.

By "consent", I mean any act by which one becomes

party to a contract, whether "I promise....", a "yes" in

answer to a question about promising ("Do you agree to

do...?"), or some other morally binding act. As used

here, "consent" includes both what lawyers call

"acceptance" (the act that converts an offer into a

contract) and "offer" (once accepted). Since my subject

is the social contract, not political consent generally,

I shall treat "consent" as a technical (that is,

defined) term. So, for example, if I "consent" to my

son's marriage, the consent I give is a mere permission,

concurrence, or express approval, perhaps a sharing of

respon-sibility, but not consent in the sense used here,

a contracting of a new obligation. While many, perhaps

most, discussions of "consent to government", use

"consent" in one of its non-contractual senses, their

usage does for matter here.27 The purpose of the

definition of "consent" given here is to discipline

usage, not describe it.

Ordinarily, the moral effect of a contract is formal

obligation, that is, a moral obligation to do what the

contract requires whatever it requires. Any obligation

that is not formal is material. Material obligations are

wholly dependent on their content, that is, on the

particular helps and harms involved, including both the

distribution and the justification for them. We cannot

show that someone has a material obligation—for

example, a certain obligation of gratitude or

restitution—without going into the details ("the

content") of what she is supposed to do and why she is

supposed to that. When we have exhausted the content, we

have exhausted the moral reasons establishing an

obligation. In contrast, we can establish a formal

obligation (or, at least, the presumption of one)

without going into content in any way; we can point to

the agreement.

Contracts obtained by force, trick, or some other

improper means are, of course, void whatever their

content. They are mere counterfeits of contract.

Generally, they do not create even a prima facie

obligation. On the rare occasions when such a contract

creates a prima facie obligation, it does so for

extraneous reasons, for example, because some innocent

third-party will suffer in this or that way if the

contract is not carried out. Such a contract, whether

creating an obligation or not, is, we might say, formally

void. Any obligation it creates must be material.

There are certain complexities about what makes a

contract formally void that we may ignore here.

Consider, for example, whether you should pay ransom to

a kidnapper who has freed you on condition you pay him

when you return home. If we think of his act alone, it

will seem obvious that you have no moral obligation to

pay the ransom once freed. But for his wronging you, you

would not have promised him anything. He was able to

squeeze the promise from you only by taking you by force

and holding you against your will until you agreed. Your

only alternative was to rot in his hideout. If, however,

we think of kidnapping as endemic (as it was for many

centuries when bandits roamed the countryside and

pirates roamed the seas), we can understand the

advantage to everyone, especially to rich captives far

from friends and family, of a kidnapper's accepting a

promise of payment in return for immediate release. We

will then be inclined to consider your promise to pay

upon reaching home (formally) morally binding. We will

say, "You were taken by force, but the kidnapper would

normally have held you until your friends or family

raised the ransom. You are free because he relied on

your word. We are all better off if kidnappers behave as

he did than if they hold us until the ransom arrives.

You should do as promised, because you promised, however

high the ransom was. If you didn't mean to pay, you

shouldn't have promised."

Some contracts, though not formally void, still

create no formal obligation. Void on their face, they are

standard exceptions to the moral rule making contracts

binding, for example, a commitment to do the impossible

or to do what another moral rule explicitly forbids (as

in a contract to murder). We need only understand such a

contract to know that it has no claim on us. There is

(we might say) a "surface flaw".

All other contracts, whatever their content, generate a

prima facie moral obligation to do as the contract says

(a formal obligation).

Contracts ordinarily turn acts otherwise morally

indifferent—or, at least, not morally required—into

moral obligations. Where a (morally permissible)

contract conflicts with other obligations, there is a

conflict of obligations. A conflict of obligations does

not void any of the obligations. The conflict, being

unfortunate but now inescapable, must be resolved by

some combination of excuse, compensation (including

apology), and compromise. Conflict of prima facie

obligations is one of the hazards of moral life. What we

should do, all things considered, when such a conflict

arises, can only be learned from deliberation at that

time. Since we are not now concerned with particular

events, we must understand the formal moral obligation

of contract to be prima facie—rather than actual—

obligation (but prima facie after eliminating contracts

formally void or void on their face).28

Depending on what one means by "social contract",

the social contract either is or is not literally a

contract. "Social contract" has, I think, been used in

at least four senses (what we may call): 1) the moral,

2) the governmental, 3) the legislative, and 4) the

political.29 Since the social contract (whatever it is)

always ends the "state of nature" (the condition we were

in before the contract), "state of nature" must also

have at least four senses, each corresponding to one of

these senses of "social contract".

The moral contact (covenant, compact, convention,

or agreement) ends the pre-moral condition, creating a

civil society, that is, a set of persons (rational agents)

living together according to rules (more or less)

acceptable to all.30 Civil society is where clubs,

28. This distinction between prima facie and actual obligation,though relatively uncontroversial, is worth making here. Somecritics of political obligation seem to have overlooked it—withdisastrous consequences. Wolff, for example, could not haveclaimed that political authority and moral autonomy areinconsistent if he had understood political authority (which, forhim, is what the government has when its subjects owe it a formalmoral obligation to obey) as merely prima facie obligation—or, atleast, he would have had to argue that moral autonomy isinconsistent with all formal moral obligation, includingobligations arising from promises, something hard to imagine givenhow much judgment goes into resolving conflicts of prima facieobligation. See Robert Paul Wolff, In Defense of Anarchy (Harper &Row: New York, 1970), esp. 18-19.

churches, charities, markets, professions, and other

voluntary associations exist. Civil society is the

conceptual space between what is morally wrong and what

law requires or forbids.

The moral contract can never be a literal contract.

The foundation of all moral obligation, it cannot itself

be a moral obligation. The moral contract is nonetheless

analogous to contract strictly so called insofar as it

turns acts morally indifferent into acts morally

required or forbidden. The moral contract is the

(logical) pre-condition of literal contract. Without the

moral contract, there can be no morally-binding acts.31

The governmental contract ends a pre-governmental

condition, providing civil society with a "magistrate"

(an administrative, executive, and judicial framework),

in other words, a civil state. There are three versions

of the governmental contract. In one, would-be subjects

contract with the government (or would-be government)

directly. Each ends her own pre-governmental condition

(or, at least, each does once enough have so contracted

to constitute a collection of individuals sufficiently

large to have a government). In the second version of

the governmental contract, the would-be subjects form a

corporate body first (a people) and this corporate body

then contracts with some person or persons to be the

government. The third version mixes the other two. Some

would-be subjects form a people and contract with a

government, with others coming in by individual contract

with the government.32

A legislative contract is a contract among individuals

creating a legislature (a formal procedure for making

laws). Until the legislature actually enacts at least

one law, the legislature exists only potentially. Even

so, the legislative contract ends the pre-legal

condition, creating a jurisdiction, that is, a set of

persons (at least potentially) subject to the same laws.

The legislative contract is distinct from the

governmental contract only insofar as legislation

(including subsidiary rule-making) is distinct from

adjudicating, executing, and otherwise administering the

laws. Even when distinct from the governmental contract,

the legislative contract can take any one of the three

forms the governmental can (individual, corporate, or

mixed).

There has, I think, been a strong tendency to

confuse the governmental with the legislative contract.

One reason may be that governments have, for at least

the last four centuries, had the power to legislate. Any

obligation to obey the law (including political

obligation) is also an obligation to obey the government

(when the government acts lawfully). There is, however,

an older way of understanding the relation of law and

government, one still current in parliamentary usage,

for example, when a "government" is said to fall (when,

in fact, only the executive falls). On this older way of

understanding government, the government lacks the power

to legislate. That power, if recognized at all, belongs

to some "non-governmental" body, such as parliament. On

this older way of understanding government, political

allegiance is independent of political obligation (since

political obligation is owed to law, not persons).

"Political allegiance", the special (formal) obligation

binding specific people to their own government, is a

personal bond much like that between a feudal lord

paramount ("liege") and his vassals ("liegemen"). Only

when government is a set of offices legally defined, not

one or more individuals, can political allegiance be

understood as the equivalent of political obligation.33

In what follows, I generally avoid the term "political

allegiance" to avoid any suggestion that we might be

concerned with a formal moral obligation to obey

individuals, when we are in fact concerned only with the

formal moral obligation to obey the law (including the

lawful instructions of any officer the law empowers).

If the legislative or governmental contract occurs

after the moral contract, it can be a literal contract;

if not, it cannot be. Rousseau's "social compact" is a

good example of a legislative contract that, though

morally binding, is not literally a contract because it

comes too soon. For Rousseau, the pre-legislative

condition is also a pre-moral condition. The legislative

contract makes us moral agents even as it makes us

subjects of law:

The passing from the state of nature to the civilstate produces in man a very remarkable change, bysubstituting justice for instinct in his conduct,and giving to his actions a moral character whichthey before lacked. It is then only that the voiceof duty succeeds to physical impulse, and a senseof what is right, to the incitement of appetite.34

For Rousseau, the legislative contract binds because,

and only because, the alternative, a return of the pre-

moral condition, would mean giving up justice for

impulse and appetite. Moral agents cannot make that

choice, that is, cannot morally choose a state of

injustice over a state of justice. For Rousseau, the

transition from the state of nature to the civil state

is not even necessarily voluntary (in any important

sense). Most children undergo the transition as they

grow up. They are born slaves of impulse, learning to

act morally much as they learn to speak grammatically.

They become moral agents before they know it.

Since Rousseau explicitly rejects the governmental

contract (and says nothing about the political

contract), The Social Contract has no literal contract

whatever. The Social Contract is, in fact, an attempt to

understand ancient democracy, a system of ideas hostile

to (literal) social contract.35 For most social contract

theorists, however, the legislative or governmental

contract is possible because morality ("the law of

nature") already governs. For them, the social contract

can be a literal contract.

The political contract ends a pre-political condition,

creating political society, that is, a set of

individuals (citizens) capable of acting as a single

self-governing body. A political society is a corporate

entity (a people), not just a civil society (a number of

people living together) or a civil state (the subjects

of one government). Like the legislative or governmental

contract, the political contract can be a literal

contract only if morality is already in place. The

political contract can impose political obligations if,

and only if, it is a literal contract and includes

consent to law. The political contract does not

presuppose any laws, the legislative or governmental

contract, or even an already existing legislature or

government.

Since some may find this separation of political

society from government and legislature hard to imagine

(if not incredible), let me give an example: A group of

people might form a political society by agreeing with

each other to be bound by a certain set of rules (such

as the twelve tablets of the ancient Romans). They

might, being a small group, agree as well to meet

whenever there is a dispute about how to interpret the

rules or some need to enforce them. They would

constitute what anthropologists now call "a stateless

society", that is, a set of people who live in the same

region in (relative) peace with common customs and

substantial contact, but without (standing) legislature

or (standing) government. The stateless society we have

imagined would have laws and owe political obligation

(something not true of most actual stateless societies).

The social contract with which this book begins would, I

think, create such a politically-obliged stateless

society (depending on what one requires of a legislature

for it to be "standing").

These distinctions are a rough summary of a complex

literature, a helpful glossary rather than a rigorous

exhaustion of possibilities. Different writers make the

distinctions differently, generally using no more than

two of the four senses, often confusing even those.

Rawls, for example, uses "social contract" only in the

first sense (without confusion). His social contract

ends "the original position", a condition from which the

principles of justice (and, indeed, of all morality) are

absent.36 His "contract" involves no (morally binding)

consent, only an "agreement" (that is, a congruence of

individual judgments) concerning the principles to

govern the writing of a constitution. Rawls has nothing

(positive) to say about the political, legislative, or

governmental contract. His constitutional convention

merely assumes his two principles of justice (and the

rest of ordinary morality); his legislature and

government, a constitution. His citizens owe what he

calls "political duty", because they are subjects of a

relatively just government, not because they have

consented.37

To many, perhaps even to Rawls himself, A Theory of

Justice may seem to stand against the intuition motivating

this book, but a close reading reveals something closer

to a refusal to take sides. By "duty", Rawls means a

moral requirement resting on considerations of justice

rather than fairness. Moral requirements resting on

fairness, including requirements arising from promise,

he calls "obligations". Rawls does not, as far as I can

tell, ever say whether a "political duty" is a formal

moral requirement. My guess is that it is not. To show

that a duty to obey the law derives from considerations

of justice, one would have to know what the law says.

One would have to consider how its content comports with

Rawls' two fundamental principles of justice. One could

not simply rely on (imperfect) procedures to guarantee

that the law was, absent surface flaw, free from

fundamental flaw. Hence, for Rawls, political duty and

political obligation may both be present in society,

both absent, or one present and the other absent. They

are (more or less) independent moral entities (tracking

my distinction between material and formal obligation).

Now and then Rawls even notes this independence. For

example, during his "argument for the principle of

fairness", he says:

It is also true that the better-placed members ofsociety are more likely than others to havepolitical obligations as distinct from politicalduties. For by and large it is these persons whoare best able to gain political office and to takeadvantage of the opportunities offered by theconstitutional system. They are, therefore, boundeven more tightly to the scheme of justinstitutions. To mark this fact, and to emphasizethe manner in which many ties are freely assumed,

it is useful to have the principle of fairness.38

We must, then, begin more or less where Rawls

leaves off. The intuition motivating this book is that

(whatever my political "duties") I owe political

obligation because, and only because, I have consented

("freely assumed [it]"). Consent can be a principle of

political obligation when, and only when, consenting is

an act deserving formal moral authority. Consent is an

act deserving formal moral authority only when

understood in a certain way. Saying in what way that is,

is both important and difficult. It is important

because, without a good formulation of its principle (or

principles), too many practical questions about who has

what moral obligation must remain unanswered. Any moral

obligation I have to obey a law—for example, because

the law is just or part of a just system of law to which

I owe a debt of gratitude—are, being material,

irrelevant to the intuition motivating this book. But,

without a good formulation of the principle of

(political) consent, it is easy, as the history of

political theory shows, to mistake such obligations for

political obligations. Offering a good formulation of

the principle of consent will be difficult because

"consent" is an enormous knot of hard-to-get-at

concepts. Even among acts thought at least sometimes

formally morally obliging, there is not only consenting

to them expressly or tacitly, but consenting by silence

or by implication, consenting freely or under duress,

consenting directly or by representative, by voting or

by participation, the consenting of adults and of

children, of individuals and of corporations, of

trustees and of agents. Before there can be an adequate

formulation of the principle of consent, that knot of

concepts must be loosened, the conceptual strands sorted

out, and each strand labeled. History seems to be a good

place to start that work of analysis for at least three

reasons.

First, history is precisely what has been absent

from most criticism of social contract, even as the word

"history" has been used as a stick. (The Hume quoted in

my Introduction is a good example of the stick.) When we

rely on what "everyone" knows about a complex empirical

question, we are, as likely as not, relying on what only

we, and a few neighbors, happen to think. We can, and

should, do better than that.

Second, history is likely to be a source of insight

on this subject. Like words, moral principles have a

history. A principle may evolve from another over

centuries or spring up in a day; may mature in one place

and then spread to others, or may mature as it spreads;

may cover a continent or remain forever penned between

two mountains. A principle may even die out: Who now

feels any obligation to sacrifice his firstborn?

The practice of (political) consent is at once more

varied and more determinate than most writers on the

subject have thought. They have looked to the dominant

practice of their day, mistaking what is commonly done

for all that could reasonably be done. They have

(sometimes expressly) assumed that the practice of

consent could not be more without being different and

have looked to the past only for more of the same. They

have, in effect, acted much as a linguist might if she

took today's common usage to be the only usage,

forgetting how much of language is rare, literary,

poetic, technical, dialectic, archaic, or obsolete.

Contemporary usage is always thick with unnoticed detail

and rich in possibilities. Uncommon but acceptable

usage, at once familiar and retiring, is easily missed

in the carnival of the moment. Etymology often alerts us

to such usage. The past of a moral principle may persist

in the same retiring way. The history of a principle is

its practice shrunk by distance and fixed by time, the

merely momentary torn off as if a linen wrapping, the

lastingly important showing through like a mummy's

skeleton.

There is, of course, some risk of confusing the

dead with the living. The risk is slight. An obsolete

use of principle should stand out like an obsolete use

of words, like a corpse in a crowd. I look to history to

provide clear examples of various uncommon uses of the

principle, as well as clear examples of uses still

common but nonetheless easy to overlook or mistake. I

look to history both to stretch our imagination and

sharpen our sensitivity to what is already before our

eyes—to "political society", for example.

Third, I undertake this examination of the history

of consent because the history is itself an important

and contingent fact. Important, because if there were no

history of consent, there would be no practice of

consent today. The "principle" would be a mere ideal;

its analysis, the exploration of mere possibilities.

There can no more be a moral obligation from "consent"

where there is no practice of consenting than there can

be a promise where there is no practice of promising.

The history of consent is part of its proof. Contingent,

because the principle is not necessarily what it is in

fact. The actual principle may be only one of several

possible. The principle may be this rather than that

because dozens of revolutions, hundreds of

constitutions, thousands of pamphlets, tens of thousands

of speeches, millions of people acting in particular

circumstances, slowly built up a certain practice.

A principle is, to be sure, no less a principle if

it is mine alone. Just as there can be idiolects, there

can be idiosyncratic principles. But the principle of

consent would not be mine if it were mine alone. I know

that by how I learned it and by how I use it. I learned

the principle from others, both from contemporaries and

some writers long dead. I use it to defend some of my

acts to others, to hold others to certain courses of

action, to help gauge what I may expect of others, and

to tell what others have a right to expect of me. I use

it to understand certain contemporary and historical

acts. I would not have my principle if its statement did

not fit my practice. But it would not be the principle

of consent if its statement fit only my practice. I seem

to see the principle in the practice of many centuries.

I must take care that any statement of the principle I

eventually offer fits that practice as well as my own.

The practice of political consent is neither exotic

nor particularly old. There is no need to go back three

million years to the savannahs of East Africa. There is

no need to look for the principle even as far back as

Pharaoh's Egypt, doomed Babylon, or Achaemenian Persia.

Their practices, though not wholly outside European

culture, are foreign to the practice of consent. A

Rameses, Nebuchanezzar, or Cyrus ruled by authority of

gods, relative justice, force of habit, or terror of

arms, expecting surrender and obedience rather than

consent and political obligation. Hume was right about

them, but such rulers teach more by contrast with those

who claim to rule by consent than they teach by any

likeness.

There is no need to look for the principle of

(political) consent even as far away as biblical

Palestine, ancient Greece, or the Roman republic. Though

the Hebrews, Greeks, and Romans are together the primary

source of European culture, their political practice is

not the primary source of our own. One practice cannot

be the source of another where centuries intervene.

Though the Roman church saved much of ancient culture,

it could not save much of ancient practice. Though it

preserved in its records the memory of some ancient

political practices, it could not preserve the practices

themselves. (Practice always relies on tacit knowledge

books cannot save.) Those smoky ages following the

Goths' sack of Rome favored other practices. When the

ancient forms again had a use, even the church had to

resurrect them, transforming them as it did. The

remembered ideals of ancient practice have at most

ornamented the new practice, provided it with a

vocabulary, and (occasionally) guided it. And, anyway,

even if modern political practice had not begun

centuries after the sack of Rome, what would that prove?

The ancient world had little to teach about (political)

consent. Ancient practice had nothing corresponding to

the principle of consent; the ideals of ancient theory,

little more. Of course, some writers have claimed to

find the (nascent) principle of (political) consent in

the biblical "covenants" between the Hebrews and their

law-giving god, in the Athenian mania for political

participation, or in the Roman "By order of the Senate

and People of Rome". But those claims do not stand

examination—as I will briefly show in the next three

chapters.

Notes

Chapter 2

The Hebrews and the Biblical Covenants

The Bible reports many "covenants" between man and

god—with Noah after the flood, with Abraham to make him

the father of many nations, with Aaron and his seed for

the "heave offerings", and so on.39 But there is only

one "covenant" concerned with law making, that made in

Sinai in the time of Moses. This, in brief, is what the

Bible reports: One day soon after the exodus from Egypt,

Jehovah instructed Moses to "tell the children of

Israel... if ye obey my voice indeed, and keep every

covenant… then ye shall be a peculiar treasure unto me

above all people..." Moses did as Jehovah instructed.

Upon hearing what Jehovah had said, "all the people

answered together, all that the Lord hath spoken we

shall do." Three days later, Jehovah promulgated a great

many rules, the first of which were the Ten

Commandments.40

What are we to make of this report? Much has been

made of it, certainly, especially by writers in the

century after the Protestant Reformation.41 Still, if we

examine it closely and without prejudgment, we will, I

think, find no political contract whatever and little of

social contract in any other sense (moral, legislative,

or governmental), for two reasons:

The first reason is that many hard questions stand

in the way. Is what is reported consent at all (in our

strictly contractual sense)? Jehovah did not ask for a

promise, only for obedience; he did not ask that the

Hebrews enter into a covenant with him, only that they

keep the "covenants" he will give them.42 The response

of the people is as much like a resolve as like a

promise. Why then take the response as consent? If it is

consent, why did Jehovah bother to wait till the people

consented before giving them laws? Surely what Jehovah

commanded would have had as much formal moral authority

without the people's consent as with it. What need had

he of consent? Who can doubt the moral authority of a

god? If, for some reason, Jehovah needed the consent of

the governed, could that consent oblige? There is, after

all, something odd about a contract where one party has

absolute power over the other, including the power to

order the other to release him from his undertaking. If

Jehovah's power is absolute, how can he be held to his

side of the covenant? If he cannot be held to his side,

what of the other party's obligation? Surely this

covenant (an exchange of promises) must be binding on

both parties if it is binding at all. Questions enough!43

The second (and more important) reason to find

little of social contract in the law giving at Sinai is

that, even if the Bible does report an act of consent,

what it reports thereafter is not the practice of social

contract (strictly so called). The "covenant" is between

a people and their god. By that "covenant", their god is

made their lawmaker. The children of those present,

their grandchildren, and all succeeding generations,

though not themselves present, were in practice supposed

to be equally obliged by the covenant. If what the Bible

reports is consent to law, it is not consent by

individuals. The consent is by an enduring people, a

corporate entity of some sort.

And that one act of consent is their last. Biblical

lawmaking ends in the time of Moses. Thereafter,

prophets, psalmists, priests, and Pharisees may

interpret the law, but it is never again made. The law

becomes a proof of the divine favor of a certain people,

but not a free undertaking of individuals. Obedience to

it is a right or duty, as fixed as ancestry. When, two

centuries after Moses, Jehovah charges Samuel "to harken

unto the voice of the people", the voice is merely to

make a king, not to make laws. The king is not a

lawmaker, only a magistrate and warrior, one who "may

judge us, and go out before us and fight our battles".44

Though at first elective, even the kingship soon slipped

from the choice of the people to the chance of birth.

Whatever practice of social contract the Hebrews had in

the time of Moses was dead by the reign of Solomon.

The biblical principle of political obligation must

be stated: A Hebrew has a formal moral obligation to obey a law if, and

only if, the law was commanded by Jehovah in the time of Moses. This

is not the principle of consent we are interested in;

indeed, it is not a principle of consent at all.

(Command is, after all, not consent; and acclimation

does not make it so.) The biblical report can be made to

yield a principle of consent, if at all, only by

application of considerable violence.

Notes

Chapter 3

Athens: Crito, Republic, and Politics

"The only passage I meet with in antiquity wherethe obligation of obedience to government isascribed to a promise is in Plato's Crito, whereSocrates refuses to escape from prison because hehas tacitly promised to obey the laws."—DavidHume, "Of the Original Contract"

Compared to the children of Israel, the citizens of

Athens are modern. Their experience was parochial; their

economy primitive; their state small; and their

constitution simple. But if they moved in a narrower

circle than we do now, at least it had the same center

and much the same area. The Athenians decided by vote,

elected their officials, and made laws when they felt

the need. They disputed about taxes, broke into parties

over social policy, suffered civil war, and overturned

their government now and then. Their public life had its

religious offerings and omens; their private life, its

slavery and subjection of women. But at the center of

all was the welfare of their city, not laws of stone;

common deliberation, not divine command; citizens, not a

god. A political people, they knew the advantages of

joint action. A commercial people, they valued

contracts. A military people, they made much of honor

and duty. If any ancient people had a practice of

political consent (in our strictly contractual sense),

it seems the Athenians should be the ones.

And yet, they had no practice of political consent.

Their statesmen spoke of their city as something

natural, not as a thing created by contract. Their

politicians counted votes in the Assembly, but never

acted as if anyone were obliged by his vote. The law

obliged because law was justice. Slaves had to obey as

well as free men; foreign residents as well as citizens.

There was no more question about the obligations of the

one sort than of the other. The "many" might struggle

against the "few" for a part in the government, but the

"many" were not supposed more obliged for being included

in public affairs or less obliged for being excluded.

Perhaps not to be a citizen was to be something less

than a man, but participation was a citizen's

birthright; his obligation to his city, as involuntarily

assumed as his obligation to his parents; and its laws

morally binding insofar as just, not insofar as

resulting from a contract. In practice, Athenians had no

need of a principle of (political) consent. Their ideas

left no room for one in theory.

There are nonetheless some apparent exceptions in

Greek philosophy to this claim that Athenian ideas left

no room for consent. The most notable are: 1) the speech

of the laws about "implied contract" in the Crito, 2)

Glaucon's summary of the sophist theory of "justice as

agreement" in Plato's Republic, and 3) some remarks of

Aristotle while giving his analysis of constitutions in

the Politics. These exceptions, even if more than

apparent, would not show a principle of consent. They

amount to a few passages in an extensive literature.

Except for what is said in the Politics, the exceptions

are outside of political practice, without continuity or

development, the sport of a few minds. There is at most

an ideal of consent to law in these passages; and upon

examination, there is not even that. These exceptions

are only apparent. The resemblance between the

principles in these passages and the principle of

consent is no greater than that between intention and

promise. To make more of these passages, one has to read

into them much later history.45

Crito

The Crito is the strongest defense of obedience to

law in ancient writing. It is, nevertheless, not

concerned with obligation to law as such, but with one

man's decision to obey. There is no exposition of

theory, only the description of a particular choice.

Obligation to law takes its place among other

considerations, the prudent beside the moral. The

defense of obedience to law in general is implicit, if

there at all, as a generalization from the particulars.

Socrates, condemned to death wrongly but according

to the forms of law, waits in prison for the execution

of sentence. His friend Crito visits him to urge escape,

having already made arrangements for safe flight and

comfortable exile. Socrates refuses to go. Crito pleads

with him, stressing what Socrates might still do in

exile and what his death would mean to his friends.

Socrates then states his reasons for thinking he should

not escape. These, filling the second half of the short

dialog, may be summarized: "that we ought not to...

render evil for evil to anyone"; that "a state [cannot]

subsist in which the decisions of the law have no power

but are set aside... by individuals"; that the laws are

like parents in making life possible; that Socrates owes

the law a great debt for his education; that he "entered

an implied contract that he will do as [the laws]

command"; that his friends would "be driven into exile

and deprived of citizenship" as a consequence of his

escape; that he would not enjoy exile; that his children

would suffer because of his escape; and that he would be

punished by "the laws in the world below".46

These reasons are not heaped one upon another. The

Crito is given dramatic unity by having the laws speak

for themselves; logical unity, by those diverse reasons

being combined into a single complex argument. In

outline, this is the argument:

1. One ought (all else equal) not to do wrong

(that is, harm another without a right to do

harm).

2. Socrates disobeying the laws by escaping

would do wrong (and without any significant

advantage to himself and with some harm to

those close to him).

So: Socrates ought not (all things considered) to

escape.

"In leaving the prison against the will…of the

Athenians," Socrates asks, "do I not do wrong? Or rather46. Dialogues of The Plato, trans. by B. Jowett (Jefferson Press:Boston, 1871), vol. I, 354-359.

do I not wrong those whom I ought least to wrong?"47 His

reason for thinking he would do wrong by escaping is the

harmful tendency of the act: "Tell us", he imagines the

laws to say, "...are you going by an act of yours to

overturn us the laws and the whole state, as far as in

you lies?"48 Conceding the harmful tendency of his act,

he considers whether he might still have a right to do

the act because "the state has injured [him] and given

an unjust sentence".49 The laws now argue:

1. The laws have a right to harm Socrates, for

example, by putting him to death unjustly.

2. Socrates has no right to harm the laws in

return, only an obligation to obey them (even

though obeying means death).

3. Socrates' escape would harm the laws.

So: Socrates has no right to escape, only an

obligation to obey the laws, even if obeying

means death.

The laws argue their right on three separate

grounds: filial piety, gratitude, and contract. "He who

disobeys us is," they maintain, "thrice wrong: first

because in disobeying us he disobeys his parents;

secondly, because we are the authors of his education;

and thirdly, because he has made an agreement with us

that he will duly obey our commands."50 The laws give a

reason for each ground of right. To show they have the

rights of a parent, they ask rhetorically, "Since you

were brought into the world and nurtured and educated by

us, can you deny in the first place that you are our

child...?"51 Socrates does not deny it. To show that

Socrates owes them a debt of gratitude, the laws demand,

"Tell us what complaint you have to make against us

Socrates, after seventy years of living under our

rule."52 Socrates has no complaint—except one

consequence of the laws, his unjust death sentence. To

show that Socrates has a contract with them, the laws

point out:

[We] proclaim and give the right to every Athenianthat if he does not like us when he comes of ageand has seen the ways of the city,… he may go wherehe pleases and take his goods with him... But hewho has experience of the manner in which we orderjustice... and still remains, has entered into animplied contract that he will do as we command.53

Of these three grounds of right, at least two could

impose a formal obligation. The laws make that

uncomfortably explicit for filial piety:

Would you have any right to do... evil to yourfather when you have been struck or reviled by him,or received some other evil at his hand. [Is notthe law], even more than a father, to be reverentlyentreated and if not persuaded, obeyed?54

The laws are silent about whether the obligation of

gratitude is formal or material. I assume them to be

silent because the obligation is material, what one owes

a benefactor depending upon what good he has done, and

because it is obvious that what the laws ask of Socrates

at seventy is not out of proportion to the good they

have done him during his long life. Unlike the

obligation of gratitude (but like the obligation of

filial piety), the obligation of contract is formal. The

obligation is, according to the laws, to "do as we

command" (whatever that is).55

So, Socrates has no right to destroy the laws (even

to the small degree actually within his power) because

(so the argument runs) the laws have every right to

command and he has, on three separate grounds, a moral

obligation to obey. The laws are, indeed, those he ought

least to wrong.

The Crito does found a formal moral obligation to

obey the law in part on an implied contract. The Crito

does contain something resembling the principle of

consent. Nevertheless, the Crito has nothing to do with

the principle (or ideal) of (political) consent. I say

this for three reasons: first, the argument of the Crito

has the wrong form. An argument from consent would look

more like this:

1. One has a (prima facie) formal moral

obligation to obey the law (a political

obligation) if, and only if, one has

consented to obey the law.

2. If one has a moral obligation to obey the

law, then (all else equal) one ought to do

what the law says.

3. Socrates has consented to obey the law.

4. The law forbids his escape (and all else is

equal).

So: Socrates ought not (all things considered) to

escape.

In an argument from consent, consent is the primary

consideration. The argument of the Crito makes the

implied contract redundant as well as secondary. Filial

piety or gratitude alone would be enough to make the

argument valid; filial piety alone, enough for formal

obligation. Consent is merely one secondary

consideration among several. The only similarity between

the argument of the Crito and an argument from consent is

the use of something like a contract to establish a

formal moral obligation.

Second, even if the argument of the Crito did not

make consent redundant, it would not be an argument from

consent. The principle (or ideal) of consent is a

principle of criticism as well as of defense, that is,

it tells us when we have no political obligation as well

as when we have it. The principle of the Crito's argument

is not critical. The Crito invokes filial piety and

contract as if they are consistent. They are—but only

because neither is properly a principle of political

obligation. There can, of course, be other reasons for

obeying the law beside political obligation (prudence,

justice, love of country, and so on); but there can be

no other reason for having a political obligation if one

is to have such an obligation from consent. The

principle of consent gives both the necessary and

sufficient conditions for political obligation ("if and

only if"). Consent is a jealous principle, but there is

nothing in the Crito to make it jealous.

The Crito does not use any principle of political

obligation whatever. What it uses are ordinary

principles of Athenian private morality (principles

moderns more or less share with the ancient Athenians).

The principles of filial piety and contract are

consistent because they both belong to private life,

where family relations are one thing and business

relations another. The Crito calls them into public by

magic, that is, by turning the laws into persons, making

obedience to law just a special case of obedience to

private persons. The dramatic device of personifying the

laws conceals the logic of the situation it dramatizes,

much as the gesture of a magician conceals the sleight

of hand. The personified laws do not invoke a principle

of political obligation. They merely draw an analogy

between a private situation (being commanded by a

parent, benefactor, or someone acting under contractual

right) and a political situation (obeying law). They

conceal the analogy by appearing as persons. The analogy

seems clumsy for filial piety, perhaps a little too easy

for gratitude, but persuasive for contract. I doubt it

was always so.

The contract analogy is most persuasive for a

people who have a principle of (political) consent;

least persuasive for a people who do not. The analogy

between law and contract seems to have been a

commonplace of Athenian courts. Yet, when Aristotle

discusses the analogy in the Rhetoric, his only suggestion

for its use is to enhance contracts: "The contract being

once admitted genuine, we must," he advises, "insist on

its importance...We may argue that a contract is a law,

though of a special and limited kind; and that, while

contracts do not of course make the law binding, the law

does make a lawful contract binding, and that the law

itself as a whole is a sort of contract..."56 Where

there is a practice of political consent, the analogy

between law and contract will commonly be used the other

way around, to enhance the sanctity of law. In the

seventeenth century, for example, writers regularly

argued that it is proper to hold someone to a law

because it is holding him to a contract. Seventeenth

century writers were willing to execute a tyrant for

breach of contract even when they would not think of

executing him for mere breach of law.57

The principle of consent is not an analogy, does

not depend upon an analogy with private life for its

truth, and in fact has nothing much to do with such

analogies. But, like most principles, it sometimes

supports an analogy. The argument of the Crito is not

unsound because it depends upon an analogy between

private morality and public. That dependence is

nevertheless important. It shows that the Athenians

lacked a principle of political consent and were

probably without any principle of political obligation

whatever. Had the Athenians had a principle of political

consent, surely Socrates would have found a use for it.

That he made do with a principle of private obligation

(implicit in the first premise) and certain analogies

(in the second), seems good evidence that the Athenians

had no principle of political obligation.58

Third, the Crito's argument from implied contract is

crucially flawed in a way showing that Socrates does not

himself take quite seriously the analogy between implied

contract in private law and political obligation to law

arising by the public equivalent of an implied contract.

Socrates in fact treats the implied contract as if it

were not implied but express, not gleaned from acts but

found clearly inscribed above the gates of the city.

The laws claim Socrates entered into an implied

contract with them and that, under that contract, he has

no right to escape. Now, the proof of implied contract

is a tricky business in law. There are two distinct

tricks: one, proving there to be any contract at all;

the other, proving the terms to be thus-and-so.59 The

laws attempt neither trick. They do discuss the usual

grounds for breaking a contract. "You are," they remind

Socrates, "breaking the covenants and agreements which

you made with us at your leisure, not in any haste or

under any compulsion or deception, but having seventy

years to think of them."60 The laws do show Socrates

freely submitted to Athenian law for all his adult life.

If he entered into an implied contract to obey the laws,

he has no excuse for breaking it. All well and good. But

Socrates needs no excuse for breaking the contract until

it is shown that there is a contract to break. To show

that there is an implied contract, one must show that the

parties to it relied upon a certain understanding. To

show that the terms of the understanding included this

rather than that, one must show that the parties in fact

acted as if it were this rather than that—and that they

did so (in part at least) because they were relying upon

that understanding. That is the law of implied contract

today; there is no reason to suppose it was much

different in the Athens of Socrates.

The personified laws do not show what they must

show to prove an implied contract. They show neither

that Socrates relied upon them to perform certain acts

as their part of the contract nor that they relied upon

Socrates to perform (what they claim to be) his part of

the contract. Socrates does not say he relied upon the

laws to do anything. He merely admits that they did many

good things for him. But, since the laws wish to make a

case against him, his reliance is not directly at issue.

What is at issue is a) whether they ever relied on

Socrates because of the claimed contract and b) whether,

if they did, that reliance includes Socrates not trying

to escape execution. Now, it is certainly arguable that

the laws ever relied on Socrates to obey them as part of

the claimed contract. They (meaning the laws, the

government, or the citizens of Athens) may well have

relied on Socrates to be law-abiding without relying on

him to be so because of a contract between them. They

may have relied on him to be law-abiding because they

supposed it to be in his interests to be so, because

they believed his education made it unthinkable that he

should not be so, because they knew him to love his

country so much that he could not deliberately break its

laws, or because they believed him to be in some other

way unlikely to want to break the law. That Socrates

might "express astonishment" at the laws' mention of a

contract with him suggests that law-abiding in Athens

was not ordinarily considered to be performance of a

contract.

But even if law-abiding were ordinarily so

considered, the laws cannot claim the terms of contract

to include submission to execution. The laws point to no

utterance or writing showing them to have believed the

terms to include such submission. And their acts

manifestly show them to believe otherwise. They are not

relying on Socrates. They are relying upon prison walls,

a locked door, and a guard. The laws cannot claim that,

though the contract does include submission to

execution, they do not trust Socrates to submit and

therefore have put him in prison. They could claim that

if the terms of the contract were written or spoken and

so subject to verification independent of the acts of

the parties. In this case, however, there is no such

independent verification. Not to rely is to act as if

something is not implied. The laws could have shown

reliance by leaving Socrates free to escape. If they had

to put him in prison, they might at least have left his

cell unlocked and unguarded. They did not.

Socrates can find the implied contract argument

convincing, if he does find it so, only because he does

not take seriously the distrust the laws show by putting

him in a locked and guarded prison. He still considers

himself a free man, though he can be free only if he

sneaks out of prison with the help of bribery and

deception. The Socrates of the Crito is a noble character

in part because he seems to ignore so much he might

claim in his favor while granting his opponents more

than they would dare to ask. Here is a man who can

cheerfully and deliberately argue his own life away.

Republic

In the Republic, Glaucon summarizes what he calls

"the common view of the origin and nature of justice",

the "received account".61 His summary is often said to

present a theory of social contract in the state of

nature and so to prove the Greeks understood political

consent at least in theory. Glaucon's summary of

"justice as agreement" in fact does nothing of the sort.

Though it has a (pre-moral) state of nature, "justice as

agreement" has no consent (in my sense), no moral

obligation to law, and indeed nothing more like it than

(what I have called) the moral contract. "They say,"

reports Glaucon,

that to do injustice is, by nature, good; to sufferinjustice, evil; but the evil is greater than thegood. And so when men have done both and sufferedboth, not being able to avoid the one and obtainthe other, they think that they had better agreeamong themselves to have neither; hence there ariselaws and mutual covenants; and that which isordained by law is termed by them lawful andjust.62

The Greeks had long known that ordinary law is

convention. They had no trouble generalizing that

insight to all rules, including the rules of "justice"—

which, for Greeks, seems to be the whole of morality.

From there to the concept of a pre-moral state of nature

is only a small step: If laws and moral rules are, like

contracts, conventions, they must all have been made; if

made, they must once not have been; if once there were

no laws or moral rules, then men were once free to

follow their own nature, that is, free to do (what we

now call) injustice, free to harm one another in ways we

consider unjustified. Glaucon's state of nature is

simply that condition men (and women) would be in if

freed of all conventional constraint on their nature.

Men, according to the theory of justice as agreement,

found it imprudent to remain in this state because they

made each other miserable. Once they realized that, in

the natural (that is, pre-conventional) condition, they

could do harm as they wished only if they also suffered

harm even against their wish, and that overall the pain

was not worth the pleasure, they each decided for

restraint of nature and so agreed together to have laws,

rules of justice, and other constraints on nature

(including contracts).

The key word is "agreed". If the agreement of this

theory puts people under a formal moral obligation to

law, the agreement includes (what I have called)

political or legislative contract; if not, it does not.

Does this agreement put people under such a moral

obligation? No. Glaucon continues, "Justice is tolerated

not as a good, but as the lesser evil, and honored by

reason of the inability of men to do injustice... [No]

man would ever submit to such an agreement if he were

able to resist."63 Glaucon seems to rule out submitting

now simply because one "agreed" (and agreements are

morally binding); the agreement carries no moral

authority whatever. Glaucon does not distinguish between

the reasons for originally agreeing and for now keeping

the agreement. The reason for going along with the

agreement now is the same as for agreeing in the first

place. The alternative is that terrible state where

everyone is free to follow nature.

What is remarkable about this theory is not its

likeness to a theory of social contract but its

unlikeness, the utter absence of any moral consideration

whatever. The theory makes prudence the sole bond of

civil society, the sole reason men (and perhaps women)

ought to continue to go along with laws, rules of

justice, and so. The theory makes justice itself a kind

of prudence. As we shall see in Chapter 22, no social-

contract theorist of the sixteenth or seventeenth

century, not even Thomas Hobbes, leaves moral obligation

so entirely out of law-abiding. The theory of "justice

as agreement" shares with later theories of social

contract only something like the same state of nature.

Politics

Aristotle's discussion of constitutions in the

Politics, while good political theory, is quite innocent

of the principle of consent. Having examined the Spartan

constitution, Aristotle concludes that "[if] a

Constitution is to survive, all elements of the State

must join in willing its existence and continuance".64

That joint willing is not consent (in our sense) but

consensus and is unconnected with any moral obligation.65

Aristotle makes the absence of political obligation

clearer later by restating (and weakening) his initial

conclusion, offering "as a general axiom...that the part

of a state which wishes a constitution to continue must

be stronger than the part that does not.66 Aristotle

then turns to the measure of strength. "[We] have to

remember," he says, "that quality of strength and

quantity both go into the making of every state. By

'quality', we mean free birth, wealth, culture, and

nobility of descent; by 'quantity', we mean superiority

of numbers."67 Because of their middle position, he

believes, "a legislator should always make the members

of the middle class partners in any constitution which

he establishes", it being otherwise unlikely that those

willing continuance of the constitution would be

stronger than those who do not.

But Aristotle is not merely silent about contract.

He expressly rejects the theory of justice as agreement:

"[Any] polis which is truly so called, and is not merely

one in name, must devote itself to the end of

encouraging goodness... [otherwise,] a political

association sinks into a mere alliance ... [and] law

becomes a mere covenant or (in the phrase of the sophist

Lycophron) a guarantor of men's right against one

another."68 Judging by this fragment alone, Lycophron

resembles a social contract theorist more than any other

ancient writer. Yet, even this fragment gives no hint of

political obligation; it merely suggests protecting pre-

existing rights is a reason to found a polis (a

reasonable view for the Greeks who regularly founded

self-governing colonies in distant places to defend

themselves against the barbarians with whom they

traded). Lycophron may not even have been suggesting

that the rights in question are natural; he may simply

have intended assuring in the new polis the rights one

had in the metropolis. The term "contract" ("alliance"

or "covenant") seems to be Aristotle's, not Lycophron's.

Aristotle seems to use it as a pejorative for "business

arrangement" (much as we might say, "Political society

is not a marriage of convenience"). Whatever we make of

this passage, we must take care not to make too much of

it. Lycophron had no influence on medieval or modern

political theory. Aristotle did.

For Aristotle, the practically best polis, the

polity or mixed state, must "be based on a citizen-body

composed only of those who have arms and... this

involves a property qualification."69 Believing that "it

is not possible to define this qualification

absolutely," he recommends trying "to discover in each

given case and to fix for each the highest amount which

it is possible to require without sacrificing the

principle that those who enjoy political rights should

be a majority over those who do not."70

Aristotle does, it is true, favor majority rule,

but only in a sense. He thinks it wise for the power to

rule to be in the hands of the major part of the state

(taking into account both quantity and quality). He has

no interest in a mere show of hands, some hands

belonging to men of power and some to men who (lacking

even the price of a weapon) do not matter, no thought of

a right by nature to a part in one's own government, and

no idea of any connection between participation in

government and obligation to obey the law. He labors to

make law deserve obedience by giving it the power to

command obedience. And he surely shows he understands

politics. But there is nothing in any of this, and

nothing anywhere else in the Politics, about political

consent. For Aristotle, the question of political

obligation does not exist.

Notes

Thanks to Frithjof Bergman and Mortimer Kadish for

comments on an early draft of this chapter.

Chapter 4

The Romans: Cicero, Augustine, and Justinian

The Romans were augmenters, not inventors; their

gift to us is in law, not in political thought. They

took their political theory from the Greeks; their

religion, first from the Greeks and then from the

Hebrews. Cicero, a contemporary of Julius Caesar and the

best political writer of the republic, was a stoic.

Augustine, a contemporary of the Goths who sacked Rome

and the best political writer for almost a thousand

years thereafter, was a Christian neo-Platonist. The

movement of practice and theory from Cicero to Augustine

was away from the seeming modernity of the Greeks. In

practice, the popular government of the republic

gradually changed into the divine autocracy of the

empire. In theory, the ideal of a polis, deserving

obedience for what it is, faded into the opposite ideal

of a divine hierarchy granting civil government what

little moral authority it had. Still, some writers have

claimed to find the principle (or ideal) of consent in

this or that bit of Roman political writing, chiefly: 1)

Cicero's connection of justice and republic in On the

Commonwealth, 2) Augustine's separation of justice and

republic in The City of God, or 3) the interpretation that

the Justinian code gives to the transfer of sovereignty

from people to emperor. It will not take long to show

the mistakes in these claims. I will leave it to others

the application of the arguments made here to the less-

cited Roman political writing (and poetry) in which the

social contract is supposed to have appeared.

On the Commonwealth

Cicero's theory of obligation to law rests on

justice, not consent. He defines "commonwealth"

(Aristotle's "polis") as the "people's affair" (res

publica). A "people" he takes to be not every group

associated in any manner but "the coming together of a

considerable number of men who are united by a common

agreement about law and rights and by the desire to

participate in mutual advantages."71 This common

agreement is neither the sophists' "prudent concourse"

(second best to doing evil with impunity) nor consent

(in my sense) but a moral harmony (living together

according to nature). "Law," for Cicero "is the bond

that holds political society together."72 Agreement on

this "bond" is not—and cannot be—contract. For Cicero,

this bond (law) is not a convention (as any contract

is):

There is in fact a true law—namely, right reason—which is in accordance with nature, applies to allmen, and is unchangeable and eternal. By itscommands the law summons men to performance oftheir duties, by its prohibitions, it restrainsthem from doing wrong.73

If the sophists were guilty of reducing justice to

prudence, Cicero is guilty of reducing civil law to

natural justice. If the sophists' prudence made law

attractive even though against nature, Cicero's nature

makes positive law largely unnecessary. Justice is all

the law one needs; and one can have justice without any

civil law. The agreement (a moral harmony) making a

commonwealth ceases when its enactments cease to

correspond to that true law—cease, that is, to be just;

and the commonwealth dissolves into tyranny, oligarchy,

or ochlarchy:

Where [for example] the king ceases to rule justly,the royal form of government is straightwaydestroyed, [and the] king becomes a tyrant ...

73. Cicero, 215.

Where there is a tyrant, we must not say...thatthere is a perverted commonwealth, but... thatthere is clearly no commonwealth.74

The law of nature, that one true law, is the only

morally obliging law. All enactments inconsistent with

it are without moral force and not law at all. "Neither

the senate nor the people can absolve us," Cicero

reminds his readers, "from our obligation to obey this

law."75

For Cicero, one has a moral obligation to obey a

law if, and only if, it corresponds to the law of nature

(that is, if, and only if, it is just). His theory is

then one of ordinary (material) moral obligation having

nothing to do with consent (in our strictly contractual

sense). I would have precisely the same political

obligation whether or not I consented, that is to say,

none at all, because the law of nature is defined by

content, not procedure.

The City of God

Augustine expressly rejects Cicero's definition of

"a people" because "if this definition be true, there

never was a Roman republic, for the people's weal

[justice] was never attained among the Romans."76

Augustine is not merely quibbling about the relative

justness of the Roman law. His rejection is fundamental.

For Augustine, any people that "did not obey the command

of God that it should offer no sacrifice save to Him

alone...is void of true justice" and so Cicero's

definition is useless except in the "heavenly city".77

Augustine's own definition is to be more useful.

"[A] people", he stipulates, "is an assemblage of

reasonable beings bound together by a common agreement

as to the objects of their love."78 The effect of this

definition, he observes, is to make every ("public")

government a republic. "[What] I say of this people [the

Romans] and of this republic I must be understood to

think and say...of every other nation, great or small,

which had a public government."79 If a number of

individuals are to live together under a single

government, each must want some things the others want

as well, if only to live at peace with their neighbors.

Though Augustine's definition makes every

government a republic, it still permits distinctions

among peoples and so among their governments. "[It] will

be a superior people in proportion as it is bound

together by higher interests, inferior in proportion as

it is bound together by lower."80

But, whether a superior or inferior people, the

bond holding them together, the agreement on what they

love, is merely a common interest, a shared sentiment,

not a morally-obliging consent. That common interest may

be the sophists' prudent concourse, Cicero's moral

harmony, or anything between. Augustine takes the

minimum interest to be "in earthly peace,... the well-

ordered concord of civil obedience and rule... [that

allows] the combination of men's wills to obtain the

things which are helpful to this life."81 Though he does

not believe Cicero's moral harmony to be possible except

within the "heavenly city" of Christianity, Augustine

admits that even "the heavenly city.... while in its

state of pilgrimage, avails itself of the peace of

earth, and so far as it can without injury to faith and

godliness, desires and maintains a common agreement

among men regarding the acquisition of the necessaries

of life."82 The citizen of the heavenly city cooperates

as far as he can with his earthly government in order to

live but owes its laws no obligation (since—as its law

—they are not just and so owed nothing). The only

obligation of the citizen of the heavenly city is to the

laws of the heavenly city, known now not as laws of

nature but as commands of a god.

If Augustine has a principle of political

obligation, it is not the principle of consent but the

biblical principle of Chapter 1 generalized to all

humanity. He has not given up Cicero's one true law, the

same in Rome as in Athens. He has merely removed its

seat from earth to heaven.

The Justinian Code

Like English law, Roman law is primarily judge-

made. Its great period of growth was in the two

centuries following the reign of Caesar Augustus. The

Justinian codification, the Digest and its summary

Institutes, made a century after the death of Augustine,

merely put in a convenient textbook the statutes,

judicial maxims, dicta, and learned opinion that had

accumulated over the centuries. The Digest recognizes

three kinds of law: civil law, law of nations, and law

of nature.

The civil law is the law of the Roman state, both

statute and custom; the law of nations, a set of rules

Roman jurists found common to the many foreigners

appearing in their courts (a sort of lowest common

denominator); and the law of nature, the "true law" of

Cicero. The civil law was recognized as law, that is, as

binding upon judges, even where it was contrary to the

law of nature or law of nations. For example, Roman

judges enforced Roman civil laws concerning slavery,

though they agreed that by nature all men are free.

Indeed, the great division between persons in Roman law

is that between slave and free. The law of nations, not a

law for judging disputes between nation-states but

between people of different nationalities within the

Roman state, was similarly binding on judges even when

not part of the law of nature. Like the Roman civil law,

the Roman law of nations recognized slavery. For Roman

judges, the law of nature was, as it was not for Cicero,

a guiding ideal rather than actual law. So, for example,

Roman judges did what they could to make slavery

gentler, easier to end, and harder to maintain; but they

did not think to declare either the civil law or the law

of nations to be without force simply because contrary

to the law of nature. The Digest treats usage as a

sufficient sanction where there is no other.83

The Roman jurists, though in some sense the legal

successors of Cicero, labored within a state

increasingly hostile to his republicanism. Like good

lawyers everywhere, they preserved what they could while

admitting what could not be denied. The passage some

have thought showed a principle of consent is in fact a

good example of what they could and could not do. The

passage belongs to the civil law: "The will of the

emperor has the force of law, because by the enactment

of the lex regia the people transfers to him and invests

in him all its own power and authority."84 The passage

amounts to a republican justification of autocracy. The

legal import is that the laws of the republic are

connected to those of the empire, preserving Roman legal

tradition unbroken from the twelve tables. Under the

republic, the people alone had the power to legislate;

under the empire of Justinian, the emperor alone had

that power. The jurists explain this extraordinary

difference by an act of legislation, the lex regia,

without mention of the law of nature and without any

general claim about the right of a people to choose its

government. They give only a legal justification of

autocracy.

Medieval jurists would later make much of this

passage. Though they often made it serve the side of

consent (and occasionally the side of republicanism),

the lex regia is not literally an act of political

consent. The lex regia is the act of the Roman people as a

corporate person, not as a multitude of individuals; the

act of a legislator with constitutional power within a

positive legal system, not the act of a body in nature.

The act constitutes a permanent transfer of sovereignty

binding in law both on corporate persons and

individuals, the living and the yet unborn. The act

perhaps recalls the biblical covenant discussed in

Chapter 1, Jehovah giving way to the Roman people. But

the act is not a contract (or even a promise), only the

last act of a certain repository of sovereignty morally

obliging (if at all) only because it is law, not because

it is consent.

Though the Digest contains no instance of political

consent, one can hardly underestimate its importance for

the later theory of social contract. The general

principles of the Digest, including its division of laws,

forms of legal action, and concepts of enactment and

enforcement, became the central principles of medieval

jurisprudence. Taught in the medieval universities, the

Digest became a major source of theories of government.85

The language of the Digest became the inevitable language

of any discussion touching on law or politics. Aquinas,

the greatest of medieval philosophers, cites the Digest

as "the Jurist" just as he cites Aristotle as "the

Philosopher". Even Rousseau, writing twelve centuries

after its publication and openly hostile to everything

medieval, can find no better language for much he has to

say in The Social Contract.

That importance had its bad side as well as its

good. On the bad is the Roman public law. The Digest

assumes a single source of law, a law that is command or

will, and a state that is a hierarchy with authority

always coming from above. There is no popular

sovereignty within the details of the public law, no

limit to the power of the legislator, and no need for

him ("the living law") to ask the aid of others to make

the law. The Roman public law, so unfriendly to consent,

eventually became the canon law of the medieval church

and the positive law of much of Europe. Wherever it was

received, in the Church or outside, absolutism followed

and the practice of consent, though of long standing,

sank from sight (to reappear, if at all, only by

revolution). The principle of consent cannot persist in

practice where there is no distinction between law and

command, sovereign and prince, government and absolute

authority. Where someone's will is law, there can be no

social contract.

If the public law is on the bad side of the Digest's

importance, on its good side is the law of nature and

the private law. The Digest recognized moral relations

between people whether within or outside an actual

state, people remaining the reasonable subjects of the

law of nature whatever their social condition. If the

talk of "law" in nature was misleading, at least it set

limits to what would be done by civil law, long made it

impossible for the sophists' justice as agreement (a

mere convention) to be again the received view, and so

left room for the principle of consent (with its

emphasis on moral obligation derived from a definite

voluntary act). To these good effects, we must add the

private law's detail. The moral relations of the state

of nature were not left an empty ideal. The law of

nations (and even the civil private law) was taken as a

guide to the law of nature. Later writers would find in

nature not only the prohibition of murder but also the

sanctity of contracts, the use of attorneys, the law of

corporations, and much else, all of which is the subject

of Part Two.

Notes

PART TWO: Contract Begins

So far, then, we have no explicit mention ofcontract as the basis of government, but we have away of thinking with which a contractual theorywould readily cohere—on the one hand, theimplication of the lex regia that secular authorityarose from a specific act on the part of thepeople, and on the other hand the Augustinian andStoic notion that the secular power was createdartificially after the Fall, and stood in contrastto the natural (or Divine) state of affairs. —J.W. Gough, The Social Contract, pp. 23-24.

Until now, our work has been entirely negative,

explaining why various putative examples of social

contract theory or practice are not what they seem. We

now move on to something more positive. We enter a world

in which government of the sort the ancient world knew

has largely disappeared. Local society does not differ

much from that of the ancient world, except in being

much smaller, poorer, and more isolated. The great

difference between this world and the ancient is that

these local societies are not bound to one another as

they would have been before, primarily by some

combination of fear, force, and law. They are instead

bound into large units by a web of contracts in which

service is exchanged for land. Even a new tax requires

the consent of each taxpayer. Here the principle of

consent gets its start as a source of power for the

government, but centuries will pass before it becomes a

source of political obligation.

Chapter 5

Feudal Oath and Consent in Person

The practice of consent begins during Europe's

middle ages, when republics and kingdoms, independent

cities and vast states, took form among the ruins that

half a millennium of barbarism left behind. The place to

look for the beginnings of consent may seem to be in the

republics of that time. It is not. Though there is much

in the republics resembling modern practice, they are

not in the direct line but forerunners that reached dead

ends; the history of social contract (in our sense) is

not the history of democracy. Consider Europe in, say,

1200:

The farmer-sailors of Iceland, living in a thin but

fertile strip between the cold Atlantic and the lava

desert of the interior, had already ruled themselves

more than two centuries through an assembly of heads of

households, the Allthing. The Allthing was a national

legislature, but the nation did not much exceed 25,000;

a democracy, but only a democracy of chieftains. A

household was more like a clan than like a nuclear

family. The Allthing had a future of eight centuries,

but no future outside Iceland.86

The German trading towns along the North Sea and

the Baltic, and their counterparts in northern Italy,

though nominally within the Holy Roman Empire, in fact

86. Knut Gjerset, History of Iceland (Macmillan Company: New York,1924), 29-35, 149-153.

1. Brian Skyrms, Evolution of the Social Contract (Cambridge UniversityPress: Cambridge, 1996), is a contribution to sociobiology ratherthan political theory. His "social contract" refers to what (inChapter 1) I distinguish as "the moral contract". For somethingmuch closer to what I have in mind, see Thomas Donaldson andThomas W. Dunfee, Ties That Bind: A Social Contracts Approach to Business Ethics(Harvard Business School Press: Boston, Massachusetts, 1999). The"social contracts" to which they refer in the first part of theirbook are actual contracts, morally binding. They are social inthat they are acts governing association (more or less)independent of law. They differ from traditional social contractsin not having law or government as their subject. They belong tothe market place (business ethics) rather than to the body politic(political obligation).

2. J. W. Gough, The Social Contract: A Critical Study of its Development, 2nded. (Oxford University Press: London, 1957.

3. So, for example, though I find myself in sympathy with RonReplogle, Recovering the Social Contract (Rowman & Littlefield: Totowa,New Jersey, 1989), I do not regard him as writing on my subject.His social contract belongs to the theory of justice, not ofpolitical obligation. His "contract" is not an actual contract.

4. Those who know my work in punishment theory may also bewondering about the relation of that work to this. They will findmuch that is familiar here, especially the emphasis on cooperativepractices. So, to avoid misunderstanding, I had better admit nowthat there is almost no relationship between this work and my workin punishment. Punishment theory does not presuppose political

governed themselves much as had the city-states of

ancient Greece. They had little to teach a nation-state.

Far to the east, the city of Novgorod built an empire

among the lakes and forests of what became northern

Russia. The ruler of Novgorod was the veche, an assembly

of the freeholders of the city. The veche decided all

obligation or actual consent to government. The right ofgovernment to punish arises (primarily) from the (relative)justice of its laws and procedures; hence, my occasional resort tohypothetical contract in those works. What connection there isbetween actual social contract theory and my legalisticretributivism arises from the need (under my theory of punishment)to show that violating the law in question is morally (as well aslegally) wrong for the criminal in question. Without politicalobligation, some legitimate governments may not be able to makesuch a showing for laws otherwise morally indifferent. For more onmy views on punishment, see To Make the Punishment Fit the Crime(Westview Press: Boulder, CO, 1992) and Justice in the Shadow of Death(Rowman & Littlefield: Lanham, Maryland, 1996).

5. Hanna Fenichel Pitkin, The Concept of Representation (Universityof California Press: Berkeley, 1967). Brandt had at least threereasons for this suggestion. One was that I had just been part ofan exchange of opinion pieces in the Michigan Daily concerningrepresentation in student government. The exchange, though quitepractical, had also had lots of distinctions and carefulevaluation of arguments. (One professor of philosophy, Carl Cohen,soon to chair my dissertation committee, had even joined in.) Iwas already thinking about representation. Another reason, Brandtsaid, was that the possibility of a science of ethics was toolarge a topic. There was too much I would have to read before Icould begin writing. I would get lost. His third reason was themost convincing. Ethical theory was overworked; politicalphilosophy was just reviving. Essentially, "go west, young man." Idid.

6. While I was not then aware of the "counciliarists", my laterdiscovery of them did not change my view about the boundary ofsocial contract theory (though my views did change a good deal, as

questions of law and policy by unanimous agreement.

Though in 1200 it still seemed that Novgorod would one

day become the ruler of what is now Russia, it was

doomed. A century later, the Tartars would reduce the

city to legend.87

the next few chapters will make clear). The counciliarists workwithin ideas derived from the (Roman) law of corporations, not thelaw of contract (strictly so called). While they do talk of"consent", they do not, as far as I can tell, ever use "consent"as a convenient short-hand for an obligation-producing promise (orwhat is morally equivalent to a promise). For a good introductionto the counciliarists, see Arthur P. Monahan, Consent, Coercion, andLimit (McGill-Queen's University Press: Kingston, 1987).

7. Robert Paul Wolff, In Defense of Anarchism (Harper: New York,1970). Some writers, such as Rawls, distinguish between "duties"(requirements not undertaken by any voluntary act of ours) and"obligations" (requirements undertaken by some voluntary act ofours). I shall not make that distinction in what follows becauseit neither fits ordinary usage nor returns clarity for thecircumlocutions it would often require.

8. For a non-Thomist who did this, see Bernard Gert, The MoralRules (Harper: New York, 1966).

9. For one theorist who has since come to see social contractas this sort of middle way, see A. John Simmons, "AssociativePolitical Obligations", Ethics 106 (January 1996): 247-273.

10. Compare Arthur L. Corbin, Corbin on Contracts: One Volume Edition(West Publishing: St. Paul, Minn., 1952), sec. 19: "The...tendencyis now strong to substitute the term 'quasi contract' in place ofthe term 'contract implied in law'.... A quasi contractualobligation is one that is created by the law for reasons ofjustice, without any expression of assent and sometimes evenagainst a clear expression of dissent." "Justice", as Corbin usesit, is a wider notion than "fairness" as I use it. So, for

Did the citizens of these republics consider

themselves obliged by their participation in government?

Did they believe themselves to owe political obligation?

Did they think their city stood upon contract? Who

knows? Their records say nothing of it. Their citizens

made leagues among themselves but seem, like the Greeks,

example, Corbin gives this example of appeal to quasi contract: "Bfinds or steals A's money and refuses restitution; he is under aquasi contractual duty to make such restitution." The reason forthinking of this case as belonging to contract law rather thanproperty seems to be legal convenience, primarily the remediesavailable. Still, even in this example, we can identify avoluntary act (taking the money into our possession) that,together with certain laws or customs, imply the obligation tomake restitution. There is, in all quasi contract, that much of ananalogy with taking on an obligation by promising. For Corbin, acontract implied in fact—for example, an order "Ship 60 copies ofRousseau's Social Contract priced at $10 each"—differs from anexpress contract only in omitting "I promise" or some synonymclearly understood by all parties (or at least those who know thebusiness) to entail the obligations in question.

11. "On October 22, 1641, the settlers moving up the PiscataquaRiver from the coast (then in Massachusetts, now in Maine) wouldset down the first consciously intended secular covenant, orcompact, and call it the Combination of the Settlers Upon thePiscataqua River for Government. In their case [unlike that of theMayflower Compact and other earlier social contracts] there was nominister with them, therefore, they could not yet establish achurch, so they wrote a foundation document that could not bemistaken for a religious covenant." Donald S. Lutz, "The Evolutionof Covenant Form and Content as the Basis for Early AmericanPolitical Culture", in Covenant in the 19th Century: The Decline of an AmericanPolitical Tradition, edited by Daniel J. Elazar (Rowman & Littlefield:Lanham, Maryland, 1994), 40.

14. Hanna Pitkin had a hand in this too. See her "Obligation andConsent", American Political Science Review 59 (December 1965): 990-999.

to have treated their civic obligations as too obvious

to need explanation. Their writers, when they had them,

borrowed their political ideas from the ancients and

gave their attention to the church, not to the earthly

city that merely offered them temporary comfort on the

15. See, for example, Peter McCormick, Social Contract (GarlandPublishing: New York, 1987). Though published in 1987, it is areprint of a dissertation submitted in 1974, and so a goodindication of what was then happening. McCormick interprets thesocial contract tradition as one of "imputed consent" (which hethen misinterprets as hypothetical consent).

17. There were also "Rawlsians" who founded professionalobligation on a hypothetical contract. See, for example, Robert M.Veatch, "Professional Medical Ethics: The Grounding of itsPrinciples", Journal of Medicine and Philosophy 4 (March 1979): 1-19.These were "Rawlsians" in quotes because Rawls actually ruled outthis use of hypothetical contract. For Rawls, the onlyhypothetical contract concerned the fundamental principles ofjustice. Rules of professional ethics are too specific to be amongthose principles.

18. For the full argument, see: my Thinking like an Engineer (OxfordUniversity Press: New York, 1998), esp. chapter 4; or my Profession,Code, and Ethics (Ashgate: Aldershot, England, 2002).

20. So far I have published only a few articles developing bitsand pieces of these political ideas: "Avoiding the Voter's ParadoxDemocratically", Theory and Decision 5 (October 1974): 295-311 (aresponse to Wolff); "Necessity and Nozick's Theory ofEntitlement", Political Theory 5 (May 1977): 219-232; "Smith, Gert,and Obligation to Obey the Law", Southern Journal of Philosophy 20(Summer 1982): 139-152; "Nozick's Argument FOR the Legitimacy ofthe Welfare State", Ethics 97 (April 1987): 576-594; "Patents,Natural Rights, and Natural Property", in Owning Scientific and TechnicalInformation, edited by John Snapper and Vivian Weil (RutgersUniversity Press: New Brunswick, NJ, 1989), 241-249; and "TheMoral Legislature: Morality without an Archimedean Point", Ethics

way to heaven's gate.88

No, the practice of consent does not begin in the

little republics of medieval Europe but in the great

monarchies. That at first seems odd. What could be

farther from modern practice that the feudal anarchy of

England, France, or Poland? The kingdom of Norway,102 (January 1992): 303-318.

22. Hume, 372.

25. This, I think, is the most important contribution Locke canmake to contract theory today (though it was of no importance tohis own enterprise). One has only to compare a good example ofcontemporary "consent theory" such as Harry Beran, The Consent Theoryof Political Obligation (Croom Helm: London, 1987), to appreciate Lockethe more. While Beran, the rare modern theorist to endorse actualconsent, has trouble finding a procedure for giving expressconsent (in part because he does not distinguish between state andpolitical society), Locke (as we shall see) suggests a procedurein place when he wrote—and in place still—claiming the right tovote by registering to vote, asking the appropriate official for aballot, or otherwise seeking to join the body of electors (the"body politic"). (While visiting the Australian NationalUniversity, Canberra, in 2001, I came across Beran's 1974dissertation, one of the Philosophy Department's first, an earlyversion of his 1987 book, another work originating as adissertation in the early 1970s.)

26. For lawyers, the short definition of contract is "a promiseenforceable at law". Though useful for many purposes, thatdefinition can also be misleading. Corbin, sec. 3, reports: "Astudy of its common usage will show that the term 'contract' hasbeen made to denote three different kinds of things in variouscombination: (1) the series of operative acts of the partiesexpressing their assent, or some part of these acts; (2) aphysical document executed by the parties as an operative fact initself and as lasting evidence of their having performed othernecessary acts expressing their intentions; (3) the legalrelations resulting from the operative acts of the parties, always

Aragon, or Sicily seems more a society than a state,

more the (pre-moral) state of nature than a civil

society. Feudalism is what is left of the Roman Empire

after the barbarians were done burning its cities,

pillaging its farms, and slaughtering its subjects, a

collection of shards sharing a church.

including the relation of right in one party and duty in theother."

27. I am therefore not far from full agreement with JohnKleinig, "The Ethics of Consent", Canadian Journal of Philosophy,Supplementary Volume 8 (1982): 91-118: "consent" is "an acttending to facilitate the initiative of another" by sharingresponsibility (rather than merely creating obligation). LikeKleinig here, I understand consent as an act (rather than apsychological state), facilitating the initiative of another(except in unilateral contract), and imposing responsibility(insofar as it creates a new obligation). I also agree thatKleinig's sense is the proper one for understanding today's"consent forms". I am even willing to admit his sense to be thestandard one (if there is only one standard one). I claim only a)that my use of "consent" has both historical sanction and presentconvenience on its side, and b) that it shares with Kleinig'sthree important features (it too is an act, it too facilitates,and it too takes on responsibility). I am therefore in agreementwith Kleinig's revised analysis of consent (which explicitlyrecognizes three distinct "species" of consent, including "consentas a kind of promise". See John Kleinig, "Consent", in TheEncyclopedia of Ethics, edited by Lawrence Becker (Garland Publishing:New York, 1992), vol. I, 206-221.

29. While this four-part distinction is a departure even from J.W. Gough, The Social Contract, 2nd ed. (Oxford University Press: London,1957), it is not as much a departure as it may seem. True,throughout most of his book, Gough only distinguishes thegovernmental contract from the "social contract", leavingambiguous what constitutes the "society" that the "socialcontract" creates. But his final chapter does recognize the"political contract" for the first time, attributing the idea to

A feudal kingdom is a marvelous hodgepodge, the

consequence of raising the soldiers' division of spoils

to a principle of government. Laws are found, not made;

taxes are extorted or begged but certainly not levied;

moral obligations, owed by oath and only to individuals.

Politics is a matter of birth and battle; public

Ernest Barker. (Gough, 250) Gough also agrees with Barker that"state" (what I call "the civil state") and "society" (what I call"civil society") are distinct. (Gough, 253) This leaves only thelegislative contract unaccounted for. That is evidence that atleast these three distinctions come from the literature itselfrather than from my imagination.

30. Some of these terms seem once to have been used with muchmore precision than they are today. When used in that way, acontract would be a legally (or morally) binding agreement,especially one of short duration; a pact or compact, such anagreement creating a long-term undertaking; a combination, acompact among a large number of people; and a covenant, a contractwitnessed by outside authority (whether God by oath or governmentby notarial seal). So, for example, when Locke says there is no"compact" between government and political society but only atrust, he may not be denying that there is some sort of contractbetween government and political society but only that it isanything more than a (short-term) contract creating (what we nowcall) "employment at will". I shall hereafter follow ordinaryusage, since greater precision would not help my argument andmight confuse both my readers and me.

31. Hume is, in this first sense, a theorist of social contract.On his view, part of morality, including justice, is the result ofconventions not deriving their moral force from any otherconventions. They transform a civil society having certaindisadvantages (no possibility of making promises, possessing much,suing for damages, and the like) into a civil society (or civilstate) in which such things are possible. See especially, DavidHume, A Treatise of Human Nature (Doubleday: Garden City, New York,1961), bk. III, pt. II, sec. 2.

affairs, a private property the king buys and sells; and

government, a few clerks riding behind a prince who

fights better than he reads. What could be further from

modern practice than that? Nevertheless, the practice

begins there, as a legal and political necessity,

unnoticed by theorists for centuries after and, once32. The governmental contract may or may not be the same as thecontract between an office and the people or state. Generally,when the contract between king and people is thought of as agovernmental contract in my sense, the king somehow embodies thegovernment. (The power of the idea that the king might embody thegovernment can be seen in our word "interregnum", once used toindicate the period between the death of one king and the crowningof the next, but now used to indicate the period of disorderfollowing the overthrow of one government when the new governmenthas not yet got control.) When, in contrast, the individual kingis thought of as sufficiently distinct from the kingship itself,the governmental contract is between two corporate entities, thekingship ("crown") and people; and the individual king either hassome other sort of contract (what we might call the "employmentcontract") or no contract at all. I consign this fifth distinctionto a note because a) no one seems to call the period preceding theemployment contract "a state of nature" and b) thosedistinguishing clearly between king and office find some way toavoid a (politically significant) contract between king andpeople. This contract between people and kingship is not a socialcontract (though, had the literature developed differently, itmight have been).

33. Note that the social contract entered into by theinhabitants along the Piscataqua seems to take allegiance toCharles I ("our Sovereigne Lord") for granted; it is a contractfor laws. The inhabitants along the Piscataqua seem to have had notrouble distinguishing political allegiance from politicalobligation.

34. Jean Jacques Rousseau, The Social Contract (Hafner Publishing:New York, 1947), 18-19.

noticed, often badly misperceived.

The year 1200 will do to start the history, though

feudal society had taken form some centuries earlier.

England is a good place to start. Typical of the time,

England would become the paradigm of government by

consent. Only there would the modern practice grow up35. Why "hostile"? One important feature of contracts, one thatmakes them useful in political theory, is that they endure, notforever perhaps but at least for months or years. Whateverobligation arose from participation in the Athenian assembly, andeven Socrates says nothing about an obligation arising from thatsource, would have endured only until the assembly met again,usually the next day. Rousseau's talk of "will" seems much moreappropriate in this context than the seventeenth-century's"contract".

36. For a good example of (something like) Rawls' "contractual"approach applied to morality generally, see David Gauthier, Moralsby Agreement (Clarendon Press: Oxford, 1986). For some idea of therange of ideas that Gauthier has generated, see Ellen Frankel Paulet al., editors, The New Social Contract: Essays on Gauthier (BasilBlackwell: Oxford, 1988).

37. "All these obligations [from promise, tacit understanding,joining a game, and so on] are, I believe, covered by theprinciple of fairness. There are two important cases though thatare somewhat problematical, political obligation [sic] as itapplies to the average citizen, rather than, say, to those whohold office, and the obligation to keep promises. In the firstcase [the ordinary citizen] it is not clear what is the requisitebinding action or who has performed it. There is, I believe, nopolitical obligation, strictly speaking, for citizens generally.In the second case [promises or officeholders?] an explanation isneeded as to how fiduciary obligations arise from taking advantageof a just practice." John Rawls, A Theory of Justice (HarvardUniversity Press: Cambridge, Massachusetts, 1971), 113-114. Thereis nothing problematic about the obligations of officeholders,since (in the United States at least) they must take an oath ofoffice committing them to those obligations; they expressly assume

without ever having been cut off. To England then.

In the England of 1200, the question of consent to

law could not arise. The king operated courts of justice

as a money-making concession, collected a few customary

taxes, paid most of his bills out of his personal

fortune, and made war when he could raise an army of his

the fiduciary obligations as a condition of taking office. Itherefore take this jumble of sentences to state the problem I aminterested in, explaining the political obligation of the averagecitizen who has not taken an oath to obey the law. What, ifanything, must such a citizen do to have this special moralobligation?

38. Rawls, 344. See also 336-337: "The bearing of these remarks[about the social instability apprehension about the faithfulnessof others would create] is that basing our political ties upon aprinciple of obligation would complicate the assurance problem.Citizens would not be bound to even a just constitution unlessthey have accepted and intend to continue to accept its benefits.Moreover this acceptance must be in some appropriate sensevoluntary. But in what sense? It is difficult to find a plausibleaccount in the case of the political system into which we are bornand begin our lives." The assurance problem Rawls refers issubstantial only if actual social contract is understood as theonly basis of moral obligation to obey the law (as more or lessequivalent to what Rawls calls "political duty"). If, however,political obligation is a moral consideration in addition to anyobligation arising from justice (and other materialconsiderations), we need worry no more about our fellow citizensobeying the law than about tourists doing so. Rawls has, Ibelieve, here misstated the problem that the social contract issupposed to solve.

45. See, for example, Vincente Medina, Social Contract Theories: PoliticalObligation or Anarchy? (Rowman & Littlefield: Savage, Maryland, 1990),2:

"Before taking up those social contract theories Iconsider important, I think it worthwhile to explore briefly

own. He did not rule. No one did. The idea of

legislation, like the idea of absolute authority,

belonged to the clerics, not to the law of the land that

his courts administered and his armed men considered

their inheritance. The king did not make the law; the

the genesis of the concept of the social contract. Theorigin of the concept can be traced back to the Greeks.Glaucon, in Book II of Plato's Republic, defended such aconcept. He argued that it is in the interests of all 'tomake a compact with one another neither to commit nor tosuffer injustice, and that this is the beginning oflegislation and of covenants between men'. Socrates, inPlato's Crito, also presents arguments in favor of thelegitimate political obligations of the citizen to the city-state. According to Socrates, the citizen ought to obey thelaws because, among other reasons, they have promisedobedience to such authority. In other words, they haveconsented to obey the laws of the state."

Would the history of consent be much different had the worksMedina mentions here been lost with other treasures of theancients? Since Parts Two and Three explain why it would not,Medina's (conventional) claim of "genesis" must be mistaken (as Iwill soon explain).

47. Plato, Crito, 354.

48. Plato, Crito, 354-355.

49. Plato, Crito, 355.

50. Plato, Crito, 356.

51. Plato, Crito, 355.

52. Plato, Crito, 355.

53. Plato, Crito, 356.

law made the king. The king, like his subjects, simply

obeyed the law of the land, the law that came with the

land.89

Once or twice in his reign, a king might do

something moderns consider legislating, but neither he

54. Plato, Crito, 355-356. I am, of course, giving the argumentfrom filial piety the interpretation most favorable to itssupporting a formal obligation. The laws in fact treat theargument as an argument from analogy. For example, "even more thana father" suggests degrees of likeness, the hallmark of analogy.Perhaps a better way to understand the argument from filial piety,then, is as a mere variation on the argument from gratitude:Because what parents provide their children is such a great good,and what the laws provide even greater, there is nothing(honorable) that the laws could demand that would not be withinthe bounds of the debt owed. Hence, the obligation is, in effect,formal, even though founded on a principle that does not generatetrue formal obligations.

55. Plato, Crito, 356.

56. Aristotle, Rhetoric (Modern Library: New York, 1954), 87.

57. "Burnet tells us that when commissioners were sent fromScotland to protest against the execution of Charles I, 'Cromwellentered into a long discourse of the nature of royal power,according to the principles of Mariana and Buchanan [both contracttheorists]: he thought a breach of trust in a king ought to bepunished more than any other crime whatsoever...the king is kingby contract." J.W. Gough, Social Contract, 99. 58. Since the principle of political consent would give lawsformal moral authority, the absence of such a principle among theAthenians is not as surprising as it may seem. The Greeksgenerally lacked any concept of authority whatever. Relationswithin the polis were a matter of persuasion (except when a tyrantintervened); relations among states was a matter of force. See

nor his subjects would understand it that way. If he

reorganized his court, that was his business. If he

revoked a privilege granted by his predecessor, he would

claim the grant to have been against the law, revoking

it by judicial rather than legislative act. If he

Hannah Arendt, Between Past and Future (Viking Press: New York, 1968),91-120.

59. Compare Corbin on Contracts, sec. 561-572.

60. Plato, Crito, 357.

61. The Republic of Plato, trans. by Benjamin Jowett (Colonial Press:New York, 1901), 36-37. And, indeed, something like Glaucon's viewdoes appear elsewhere. See, for example, the "Principal Doctrines"of Epicurus: "31. Natural justice is a symbol or expression ofexpediency, to prevent one man from harming or being harmed byanother... 35. It is impossible for the man who secretly violatesany article of the social compact to feel confident that he willremain undiscovered, even if he has already escaped ten thousandtimes; for right on to the end of his life he is never sure hewill not be detected." Quoted from Greek and Roman Philosophy afterAristotle, ed. by Jason L. Saunders (Free Press: New York, 1966),56.

62. Plato, Republic, 37.

63. Plato, Republic, 37.

64. The Politics of Aristotle, edited and translated by Ernest Barker(Oxford University Press: New York, 1962), 77.

65. Though there is a school of thought that understands law aswill, the better view seems to be that laws are a species of rule(and a legal system a complex of laws, principles, and policies).Will, that instant between thought and act, is precisely what lawis least like. Law endures; will does not.

published a statute, he merely stated what was agreed to

be the law or what his courts would do with those

breaking the law. In all such matters the king would ask

the advice of his chief men-at-arms, the magnates or

great men of the realm; and he would seldom proceed

without at least their grudging approval. He would not66. Aristotle, Politics, 185.

67. Aristotle, Politics, 185.

68. Aristotle, Politics, 119.

69. Aristotle, Politics, 187.

70. Aristotle, Politics, 187.

71. Marcus Tullius Cicero, On the Commonwealth, trans. by GeorgeHolland Sabine and Stanley Barney Smith (Library of Liberal Arts:Indianapolis, 1929), 129.

72. Cicero, 137.

74. Cicero, 148, 224.

75. Cicero, 216.

76. Augustine, The City of God, trans. by Marcus Dods, D.D. (ModernLibrary: New York, 1950), 699.

77. Augustine, 706.

78. Augustine, 706.

79. Augustine, 706.

80. Augustine, 706.

ask their approval because it was legally necessary; it

was not. He would ask it because he respected their

opinion much as a general respects the opinion of his

war council, or because the magnates were themselves

powers he had to take into account. His asking for

81. Augustine, 695.

82. Augustine, 696.

83. For a brief introduction to Roman law, see Alan Watson, TheSpirit of Roman Law (University of Georgia Press: Athens, 1995); orDavid Johnson, Roman Law in Context (Cambridge University Press:Cambridge, 1999).

84. Digest 1, 4, 1.

85. Walter Ullman, A History of Political Thought: the Middle Ages (PenguinBooks: Harmondsworth, Middlesex, England, 1965), 47.

87. Nicholas V. Riasansky, A History of Russia, 2nd ed. (OxfordUniversity Press: London, 1969), 90-91.

13. David Hume, "Of the Original Contract", in Hume's Moral andPolitical Philosophy, edited by Henry David Aiken (Hafner PublishingCompany: New York, 1959), 362 and 372.

16. Robert Nozick, Anarchy, State, and Utopia (Basic Books: New York,1974).

19. See my Thinking like an Engineer. Though it treats the theory ofprofessions in the context of engineering, I first worked out thebasic theory for lawyering a decade earlier in "The MoralAuthority of a Professional Code", Authority Revisited: NOMOS XXIX (NewYork University Press: New York, 1987), 302-337. For a briefhistory of professional ethics, see the first chapter of my Ethicsand the University (Routledge: London, 1999).

advice was more prudence than obligation, more courtesy

than requirement. Their giving advice was more service

than right; their approval, agreement but not consent.

Though no one made law by deliberate act, the law

was not fixed. The law was made and changed by custom,

21. W. J. Reed, Professional Men: The Rise of the Professional Classes inNineteenth Century England (Basic Books: New York, 1966), 51-55.

23. Nozick, esp. 12-18 and 108-119. Hume did not begin his ownHistory of England until almost a decade after "Of the OriginalContract".

24. This, then, is one important difference between this bookand A. John Simmons' On the Edge of Anarchy: Locke, Consent, and the Limits ofSociety (Princeton University Press: Princeton, New Jersey, 1993).Simmons wishes to improve on Locke's theory ("however carefully wefill out and articulate the best version of Lockean politicalphilosophy, that philosophy will commit us to a quite differentview of our actual, contemporary political lives, and to a quitedifferent view as well of actual political life in Locke's ownday, than anything Locke hoped for or expected", p. 9); I simplywish to state Locke's position—especially what is supposed to behis argument from "hypothetical contract"—so that he couldendorse it as his (and Hobbes' so that Hobbes could do the samefor his). Though I have few substantive disagreements withSimmons, I read Locke as (in effect) doing applied ethics, notpolitical philosophy, as trying to resolve a pressing practicalproblem, not as offering a systematic understanding of legitimategovernment or obligation to law. On my reading, much of whatSimmons says is, though always intelligent, generally right, andoften interesting to political theorists, beside the point.

39. Genesis 9:9-15, 17:2-4, Numbers 18:19.

40. Exodus 19-20, compare 31 and 34.

41. See, for example, J. W. Gough, The Social Contract, 2nd ed. (OxfordUniversity Press: London, 1957), 87-88.

by the slow adjustment of habit to need, by a succession

of precedents building into a practice. The king could

set a precedent more easily than others could, but

others might do the same by working a little harder.

Lawmaking could be left to custom; there was no need for

42. According to the common law, a covenant is a contract madeunder seal, the most authoritative of legally enforceablepromises. The Bible's use of "covenant" here for what, even on themost liberal interpretation, is an exchange of oral promises,seems designed to suggest the solemnity of the undertaking—andperhaps not much more. The term "covenant" certainly does not seemto have its ordinary legal significance.

43. For an example of how differently contract might beunderstood, see John Locke, Second Treatise of Government, para. 195:"Those [the obligations of eternal law] are so great and so strongin the case of promises that Omnipotency itself can be tied bythem. Grants, promises, and oaths are bonds that hold theAlmighty." This view, strange to us, was common in the seventeenthcentury among certain Protestants. It testifies to the authorityof contact during that century (and perhaps the centuriespreceding) rather than to any fact about contracts as such. Formore on the authority of contracts in Protestant thinking aboutthe time of Locke, see Christopher Hill, Puritanism and Revolution(Panther History: London, 1968), 240-243.

44. I Samuel 9:9-2. Compare Monahan, Consent, Coercion, and Limit, 172:"His [Aquinas' view] was likely that of the traditional OldTestament texts that describe how the Israelites received theirking from God, where the primary essential was election by Godrather than selection by the people. The people's consent here wasneither explicitly nor very clearly described; but it was clearlynothing more than a form of acclamation as a specific procedure."

88. See, for example, Dante Alighieri, On World Government (DeMonarchia), trans. by Herbert W. Schneider (Macmillian: New York,

quick change in law. Because custom, growing quietly and

persistently, made law a common principle rather than a

prince's alien rule, the law seemed to belong to its

subjects and so to need no other sanction. Custom was

the common law of the land, its shared and usual law,

the law a good man obeyed by nature. Those who broke

that law could be punished not because they had

consented to do right, but because others had a right to

protect themselves from wrong. The king's judges merely

recognized this right in a particular case and lent the

king's hand to its vindication. The lord of a manor

might do the same. The judges, not knowing the land,

might need the guidance of written law or sworn jury,

but those of the land knew the law in just the way

Cicero had said men knew the law of nature. (The common

law of custom had not yet become the judge's "artificial

1985).

89. Compare Henry de Bracton, On the Laws and Customs of England, vol.2, trans. Samuel E. Thorne (Belknap Press of Harvard University:Cambridge, Massachusetts, 1968), 21, 22, and 33 (originally"published" in 1268). Recent scholarship now understands Bractonto have completed a first draft before 1236, with severalanonymous clerks and copists adding substantial updates until atleast 1250. See Bracton, vol. 3 (1978), xv-lii. Whether someonenamed "Bracton" deserves credit for any or all the passages citedhere does not matter. What matters is that a work of the periodcould make such assertions (and that the assertions do not seem tohave struck contemporaries as silly, bazaar, or even extreme).

reason"; it was more like what Aristotle called habit,

"second nature".)

Custom was not all there was to law, but beyond

custom there was no common law, only the unusual and

private law, the privileges of individuals. If the king

wanted someone to have a right that was not customary

(and yet not against custom), he had to grant it,

usually by formal deed or charter. He could grant only

what was his till then. He could grant away his

customary revenue, royal lands, the jurisdiction of his

courts, or anything else his by custom. Such a grant,

though in a sense a public act, belonged to the private

law, to the same law of gift and contract by which

private men did similar acts.

If the king wanted to have a right not recognized

in custom as his, he had to find someone to grant it to

him (someone who already had the right). A subject

granted his king a right by an ordinary legal act. If

the right was to be over what the subject did, the act

of granting it would be an oath, solemn promise, or

other sufficient sign of deliberate undertaking (such as

seisin). When, for example, in 1184 Henry II wanted those

on his lands to do more than the customary nonpoaching,

he commanded in the Assize of the Forest that "all males

over twelve years of age who live within an area where

game is protected shall take an oath for protection of

the same."90 The oath, though in a sense creating an

obligation to obey a law (an obligation to report

poaching), belonged to private law just as much as did

the king's grant. The king could demand the oath because

he owned the land; those who did not want to take the

oath could go elsewhere. The king could not directly

order his subjects to do what he wanted (in this case,

protect the game) because his subjects had not (and

probably would not) grant the king the right to order

them to do whatever he wanted. They were not serfs.

The private law, though it had standing in court

much as it does today, was not understood as law at all.

It was "moral law" (what John Austin would call

"positive morality"). All obligations were obligations

in law if, and only if, they were obligations of

morality already. Customary law did not allow for any

distinction between law and morality. The question of

consent to law could not arise until it was possible to

distinguish between positive law and what was plainly

morally obliging in itself. Until then, even a grant of

privilege amounted to a promise in the (pre-legal) state

90. J.J. Bagley and P. B. Rowley, A Documentary History of England, vol.1 (1066-1540) (Penguin Books: Baltimore, Maryland, 1966), 72-73.

of nature.

The question of consent to taxes, unlike that of

consent to law, did arise—almost. The king could not

always live within his customary revenue. When his

expenses exceeded those revenues, he had to look for

more. He found that asking for revenue was especially

rewarding. In law, the king had no more power to impose

a new tax than does a modern charity or political party.

His only right was that of a private man to go for help

to his friends. Feudal custom decided who his friends

were.

The king was chief lord as well as chief judge and

soldier. As lord, he had divided the land among his

magnates, making each a vassal by giving him a fief in

return for a promise of personal service and certain

"feudal incidents". (The root of "feudal" is "fee", a

term for property, not a term for strife, "feud".) Those

promises, the feudal oaths, bound the kingdom together

in the person of the king. Each vassal—now tenant-in-

chief by the king's grant—similarly divided his land

among his vassals, making them his tenants and so sub-

tenants of the king. And so on down to the lowest

freeman on the land.

The relationship between lord and tenant, made by

the mutual exchange of express promises, was

contractual. Though its terms were largely set by

custom, the feudal contract was as much a contract as

any modern contract for services. The rights and

obligations of each party were limited to what had been

expressly promised (and what, by custom, was

understood). What right a lord had against his tenant he

had because the tenant had given it to him by express

promise in return for his fief and the accompanying

rights. One right the lord always had was the right to

ask his tenant for a gift, "a gracious aid", when the

lord was in need. He had no such right against his

tenant's tenant. There was no contract between lord and

subtenant. If the king needed a gracious aid, he had to

go to his tenants-in-chief.

If a lord always had the right to ask his tenants

for a gracious aid, his tenants always had the right to

refuse. That too was part of the feudal contract. To ask

an aid was to ask a favor, nothing more; to grant an

aid, to do a favor, nothing less. But a good vassal

would not lightly refuse his lord's request. He had an

interest in his lord's prosperity. His lord's strength

protected him; his lord's defeat could be his ruin. A

vassal also had an interest in his lord's good will. His

lord might do him great favors if favorably disposed;

great harm if not.

But the vassal had no legal or moral obligation to

give an aid just because his lord asked, demanded, or

even commanded it. He had an obligation only if he

promised and only because he promised. What other

vassals did, did not oblige him, though he could not

leave their acts out of account. Their acts, though they

could not oblige him, could expose him to risk. A lord

might make life hard for a dissenting vassal. So, for

example, when the clerical tenants of Richard I refused

him money for a crusade in 1198, that lion-hearted

soldier closed his courts of justice to the whole

clergy, leaving them prey to rapacious neighbors.91

Though one vassal prudently took into account what

others did about a request for aid, decision by vote was

unthinkable in such a matter. The majority could not

oblige the dissenters. And, if those dissenting could

not be obliged by the majority, those not present

certainly could not be. A vassal promised in person for

himself alone. He had no power to oblige those not

present. Representation too was unthinkable. If a vassal

granted more than he himself wished to pay, he had to go

back to his own vassals, ask them for aid, and hope they

91. M. V. Clarke, Medieval Representation and Consent (Longmans,Green, and Co.: London, 1936), 263.

treated him as well as he had treated his lord. And so

on down to the lowest vassal. A person had a formal

moral obligation to give an aid if, and only if, he

promised it in person.

That obligation was not political, nor was the

promise an act of (political) consent even when the

promise was made to the king. In 1200, granting an aid

even to the lord king himself was a private act. It was

still the grant of a privilege, not a piece of

legislation. But it did not remain that for long.

The documents of this time invite misreading today.

So foreign are their ideas that we automatically

substitute our own for the medieval wherever the

language allows. Consider, for example, Chapter 12 of

Magna Carta: "No scutage or aid shall be imposed in our

kingdom unless by the common counsel thereof, except to

ransom our person, to make our eldest son a knight, and

once to marry our eldest daughter, and for these only a

reasonable aid shall be levied." There is no chance of

misreading the unfamiliar. Mention of "scutage" or

"ransom" sends one to a legal dictionary or medieval

history. Scutage, it turns out, is just an aid given in

place of the personal service owed under the feudal

contract; ransom and the other exceptional levies, just

the common "feudal incidents" set by custom.

The chance for misreading is not here but in the

more familiar phrase "common counsel [of our kingdom]".

What does that mean? Does "counsel" mean "council", a

body deciding together rather than a multitude of

individuals deciding side by side? Chapter 14 adds

dangerous detail:

For obtaining the common counsel of the kingdomconcerning assessment of aids (other than the hereaforesaid) or of scutage, we will cause to besummoned severally by our letters, the archbishops,bishops, abbots, earls and great barons; we shallalso cause to be summoned generally, by oursheriffs and bailiffs, all those who hold landsdirectly from us; to meet on a fixed day, but withat least forty days notice, and at a fixed place...The summons being thus made, the business shallproceed on the day appointed, according to theadvice of those who shall be present, even thoughnot all the persons summoned have come.

What is this? Chapter 14 seems to describe parliament,

though there was no parliament then. The archbishops,

bishops, abbots, earls, and great barons sound like the

House of Lords; those others holding directly, like the

Commons. There is no mention of lawmaking, but taxes

("aids") seem not to require the consent of all. The

business is to be done according to the "advice" of

those present, even if all are not present. By the logic

of this exegesis, the "common" of Chapter 12 must, it

seems, refer to the community represented: "counsel"

grows into "council"; "advice", into "consent". Without

mention of unanimity, it seems only natural that

decision be by majority vote. That is how it now seems,

modern ideas being as familiar to us as feudal ideas are

strange.

But when John set his seal to Magna Carta one June

day in 1215, it could not have seemed that way either to

him or to the magnates he meant to pacify by his

promise. Magna Carta was primarily a reaffirmation of

feudal custom, its words not yet transformed by the next

four centuries. There was no distinction between Lords

and Commons. The distinction was merely between the

king's tenants great and small. No one wanted to vote in

parliament. The king's vassals, great and small, only

wanted to meet together when the king asked for aid.

They wanted to take counsel in common to avoid having

the king go to them one by one, an army at his back.

They wanted to be able to assess accurately the risks of

saying no or offering less than the aid asked. They

foresaw no (corporate) body deciding together and

obliging all. "Counsel" did not mean "council". The

phrase about the business proceeding even though all

those summoned had not come, is there so that those who

came on time would know that they would not have to wait

for the tardy.92

The business is to be done according to the advice

of those present, but there is no reason to suppose that

what is done in any way obliges those not present. A

vassal could still refuse to grant his king an aid

whatever other vassals decided in his absence. The

bishop of Winchester refused his share of an aid in 1217

on the grounds that he had not personally granted it.

The barons of the Exchequer accepted his excuse. Others

did the same as the bishop as late as 1270.93

The English were not then a learned people, but

ignorance does not explain their political practice. The

magnates who forced John to set his seal to Magna Carta,

did not omit mention of voting aids because they knew

nothing of voting. They knew of voting. They knew it to

be a convenient method of deciding sometimes used by

clerics. They ignored it as a means of granting aid

because they supposed it to be without power to oblige.

They were willing to use it where it seemed useful.

Majority vote does appear in Magna Carta, not in the

taxing chapters but in the extraordinary Chapter 61, the92. The evidence for this claim follows in the next few pages.

93. Clarke, 257.

chapter by which John granted a right to revolt and

authorized a permanent procedure for doing it. "[If]",

John agreed, "we... offend in any respect against any

man, or shall transgress any of these articles..., and

the offense be brought before four of the said twenty-

five barons [initially chosen by the baronage and

thereafter replaced by co-optation], those four barons

shall come before us... declaring the offense, and shall

demand speedy amends of the same." If the king fails to

afford redress within the next forty days, "the

aforesaid four barons shall refer the matter to the rest

of the twenty-five barons, who, together with the

commonalty of the whole country, shall distrain and

distress us to the utmost of their power, to wit, by

capture of our castles, lands, and possessions... until

compensation be made according to their decision." Since

people would ordinarily be under no obligation to help

the barons against their king, the magnates had John

grant as well: "Anyone in the kingdom may take an oath

that, for the accomplishment of all the aforesaid

matters, he will obey the orders of the said twenty-five

barons... [and moreover] all such of our subjects who

shall not of their own free will and accord agree to

swear to the said twenty-five barons, to distrain and

distress us..., we will compel to do so by our command."

The twenty-five barons are not to be twenty-five

individuals but a deliberative body, a single council,

where "the verdict of the majority shall be considered

as firm and binding as if the whole number should have

been of one mind."

Chapter 61 of Magna Carta, though it proved

unworkable, tells much about the practice of 1215. Not

ignorance but principle made the magnates prefer

individual promise to common vote as the procedure for

granting aids. That principle might be stated: An

individual has a formal moral obligation to an enactment if, and only if, he

so promised. Since nothing in 1215 was both enacted and

law, this principle is not a principle of political

obligation. Custom was law but not enacted; privilege,

enacted but not law; and a gracious and private gift,

not a privilege or law. Even Magna Carta, though an

attempt at a constitution of liberty, was only the

greatest charter of privilege. The charter did not enact

into law the customary rights it lists. Those rights,

being customary, were already the law of the land,

morally binding on all sharing the common law and in no

need of being granted (hence the regular references to

what is "ancient", "reasonable", or "customary"). John's

charter was proof of that. Having broken that law, he

was made to list the customary rights he had violated,

to recognize them expressly, and to commit himself to

their enforcement. He was made to do that, not to grant

those rights needing no grant, but only because Chapter

61 concerned those rights, not others. The privilege of

Magna Carta is the use of certain procedures for redress

when certain rights have been violated.

Magna Carta seems more than a grant of privilege

because there seems to be something incoherent in the

idea of a privilege granted to everyone (or even of a

privilege granted to everyone who counts). A grant to

all seems a public, not a private, act; law rather than

privilege. While the magnates of 1215 did not see it

that way, they were close to seeing it that way. The

difference between a great charter and a political

constitution is small. It is only the difference between

the private business of the king done with the relevant

individuals present together and the public business of

a king and people, a difference of perception. But that

difference, though small, is also the difference between

twenty-five barons and a parliament, between feudal

anarchy and medieval constitutionalism, between

(private) promise and (political) consent in person. The

moment it is seen that there are public laws (beside

custom), it is possible to substitute in the feudal

principle of promises, "law, regulation, or other

authoritative enactment of government" for "enactment".

A change of perception transforms the feudal (private)

principle of individual promise into a principle of

political obligation, indeed, into a promising principle

of consent. That principle will, however, not be our

principle of consent by legislators. There will remain a

sharp distinction between the law of custom (a common

law that is not enacted) and the laws of government (the

royal statutes and aids that are enacted), a distinction

that keeps the common law from coming under the

principle. And, of course, consent under this principle

will have to be in person. But, both new statute and new

taxes would come under the principle, making practice

considerably more familiar. This change in perception

seems to have been accomplished before 1400. By then,

England had not only a principle of consent in person

but also a principle of consent by representative.

Notes

Chapter 6

Early Consent: The Thirteenth Century

England was not altogether feudal in 1200. The

Saxon organization of hundred and county persisted

beside manor and demesne.94 The county sheriff, not the

feudal lord, collected the gracious aid along with the

customary royal taxes, the lords finding that procedure

more convenient. The new trading towns had within their

walls a civic life little different from that of their

freer counterparts in northern Germany and Italy. Some

of the older towns, like London, had royal charters

granting extensive rights of self-government, and the

newer towns were soon buying charters of their own from

a king desperate for money. The church, though its

hierarchy held feudal tenure as well as ecclesiastical

office, knew itself to be a mystic unity, a corporate

body divinely instituted, not a multitude of individuals

bound by contract—a loyalty transcending kingdom,

independent of fief, and sometimes inconsistent with

allegiance to lord. Even the king, though feudal chief,

was still a prince. To his magnates, he might seem only

first among equals, no less under the law than they and

perhaps more in need of its bridle. But to everyone

else, perhaps especially to the clerics who filled most

administrative posts in his government, the king had no

equal within his realm. For them, there was only king

and people. At a coronation, the magnates might make him

swear an oath the same as any new lord's, but the church

anointed his head with holy oil, put a scepter in his

hand, and held out to him a princely crown. The church

liked its privileges as much as the magnates liked

theirs; but the church spoke the language of Justinian,

transmitting the ancient ideal of public business even

when it did not intend to. The difference between feudal

anarchy and medieval constitutionalism was less in idea

than institution, less in will than opportunity.

The summoning of magnates for counsel and aid

institutionalized feudalism. The magnates answered as

individuals, speaking only for themselves, their vassals

giving them power without being a distinguishable

concern. A magnate's loyalty was to his land, not to a

people; to privilege, not to law; to king as lord, not

to kingship as public office.95 As long as the magnates

answered for the kingdom, the kingdom remained feudal.

And what else could it be? Only the magnates could

answer for the men and money the king needed to make his

wars and keep his peace. Public authority had contracted

drastically since ancient times, and private promises

had become the chief source of power in any secular unit

larger than a city. Commerce also had contracted

drastically since ancient times, leaving land the chief

source of wealth. The magnates were the land, in effect,

because they could make it yield what the king needed. A

king might find it hard to reign over his magnates, but

for centuries kings had found it impossible to reign

without them. Feudalism was an institution of necessity,

not desire, and endured until the king found another—

until, that is, the king found others to come with the

magnates in answer to his summons, others who could give

what he needed and would not ask too much in return.

By 1200 commerce was increasing again, making town

and church rich as they had not been for many centuries.

The king was simultaneously finding it ever harder to

live within his customary revenues. And his magnates

too, for similar reasons, were finding it harder to give

the king the aid he asked. Events suggested an

institution to escape feudalism just as they were making

escape both practical and expedient. The principle of

promise combined with 1) the common-law jury, 2) the

canon-law appearance by attorney, and 3) perhaps the

example of the fourth Lateran council, to suggest a

practice that soon became consent in parliament—not

only in England but throughout most of Catholic Europe.

Jury

The jury has always been what it is today, a finder

of fact (a "verdict" literally being a "true-saying", a

statement of fact). The jury is important to our story

not because of what it did but because of what it made

people do, not because it found fact but because the

king found it useful. The jury came to England with the

Normans, a convenient way to collect information for a

census. The jury then was a substantial number of

reputable men—four, twelve, or twenty-four—of a

hundred or county, whom a royal official called to the

county court, put under oath to tell the truth, and

asked such questions as, "Who owns that forest?" or "How

much was the last Danegeld?" The questions concerned

only such matters as were supposed to be within the

common knowledge of the locale (and for which there was

no written proof). The truth was taken to be what

jurymen could agree to, that is, what a sample of the

locale showed to be the common belief.

By the end of the twelfth century, the jury had

become an important ingredient in the king's justice.

The king's judges rode great circuits, there being

insufficient judicial business to keep them long in any

one county. They were strangers almost everywhere they

held court. Juries told them what they otherwise could

not know. When a judge arrived in a county, the local

sheriff would impanel a jury (much like today's "grand

jury"). The judge would ask it the names of those

suspected of wrongdoing. He would then have those so

named brought before him to be tried. If a suspect

declined trial by ordeal or combat, the judge would put

all disputed facts to another jury (much like today's

"petit jury"). He would do the same where there was a

dispute between landowners or any other dispute brought

to him (except where the church courts had exclusive

jurisdiction). The judge would also use a jury to find

out the local law where that was relevant to the case.

Since custom is among what those in a locale have in

their common knowledge, it made as much sense to use a

jury to find such law as it did to use it to find any

other fact.

The royal court (curia regis), the center of feudal

ceremony and the kingdom's administrative capital, was

also the kingdom's highest judiciary, having appellate

jurisdiction in all cases and original jurisdiction in

any case considered too important to be left to one

royal judge in a county court. The jury had as much use

in the royal court as in any other. In some cases, the

assembled magnates might serve as the jury—for example,

where a magnate stood accused of treason or the king had

a dispute with the church. But in most cases where a

jury was needed (that is, where local knowledge was

crucial), the royal court would send to the sheriff of

the appropriate county enjoining him to choose suitable

men and have them appear at the royal court on a certain

day ready for work. A jury might have as much to do in

an appeal as in an original hearing. In an appeal, the

jury had to testify to ("bear up the record of") the

original hearing, there being no written record of the

proceeding itself. The memory of those present at the

first hearing was all that distinguished original

hearing from appeal.

Serving on a jury was a duty, not a right; and

having to appear in the royal court at Westminster or

some other distant place was certainly a heavy duty.

Travel was expensive, slow, grueling, and less than

safe. On his own, a common knight or burgess would

hardly have undertaken such a journey, except perhaps to

complain of some great wrong he had suffered and for

which he could find no redress in his own county.

The regular use of juries in the king's courts

built up among commoners a practice of public service

upon royal summons; and at the royal court, a

corresponding practice of summoning commoners when there

was work for them to do. Neither practice had anything

to do with consent. Jurymen were still only good men

sworn to tell the truth, no more than a representative

sample of the common knowledge of their locale. They had

no power to speak for anyone but themselves, and no one

expected them to do more than speak the truth. The jury

was important to consent because the practice of

summoning a jury could be put to a different use. But it

could not be put to that other use until one man could

speak for others.

Power of Attorney

Feudal institutions were hostile to anyone acting

except in person. A vassal might, it is true, give money

in place of personal service—if his lord agreed. But

neither he nor his lord imagined that the money served

for the vassal. The vassal merely served his lord in one

way rather than another. A lord would not normally

accept another man's service in place of his vassal's

because one man's counsel or valor could not take the

place of another's. How could it? If a lord had wanted

the replacement's service, he would have accepted him as

vassal in the first place. Feudal relations were

personal.

Feudal ideas ruled the king's courts of justice.

One had to "wage his law" in person or not at all

(unless a widow, child, or someone else for whom that

was simply impractical). That one should have to appear

in person certainly made sense for the older procedure

of trial by ordeal or combat. But one still had to

appear in person even for trial by jury. One man could

appear for another only to make excuse (essoin) for the

other's nonappearance. He appeared then as the other's

messenger, not as his replacement or attorney.96

If feudal institutions had been the only

institutions, England might have had to wait a long time

for consent by representative. Fortunately, feudal

institutions were not the only ones. The church had

others. Canon law, following Roman law in this as in

much else, allowed one person to act by another, his

attorney (procurator, proctor, proxy, agent, or the

like). Indeed, canon law even allowed a corporation to

act by attorney (the word "proctor" most often referring

to an attorney acting for a cathedral chapter or other

body of lower clergy). The attorney could act for

another, could be that other in law for this or that

purpose, because, and just because, that other had

granted him full and sufficient power so to act. The

attorney was not necessarily someone learned in law,

merely someone with the power of attorney (a power to

"represent", that is, make the other as good as present

for the purpose in question).

In the twelfth and thirteenth centuries, canon law

had considerable influence outside the church. Canon law

was a public law almost equal in importance to the

common law. Not only did clerics predominate in the

king's courts, but the church courts did much business

to which laymen were party. The church at one time

claimed jurisdiction over any case involving a

clergyman, church property, marriage, will, inheritance,

or breach of an oath. A magnate or a town might be

called before a church court as easily as an abbot or

chapter. Nor was the use of proctors limited to judicial

business. A proctor might serve for his master wherever

his master could give him power to act. He could even

appear in a "legislature".

When an archbishop called an assembly of lower

clergy (a convocation), what he got was an assembly of

proctors. By the end of the twelfth century, the

business of such assemblies included approving grants of

aid to the king. The third Lateran council (1178) had

taken from bishops the unilateral power to oblige lower

clergy to pay money to the king. Previously, the bishop

could speak for his clergy without consulting them and

oblige them without their approval. (The church was

never a feudal institution.) Because bishops had proved

too susceptible to the king's entreaties or too free

with church money, the lower clergy were given the power

to grant aids, in the hope that they would be less free

in granting them. (The lower clergy, not the bishops,

had to raise the money granted in the church's name.) A

bishop retained full power to make grants from his

feudal holdings, but thereafter he had to have the

approval of his chapter to make a gracious aid of church

money. The assembly of clergy proved a convenient way to

inform the lower clergy of the king's needs and to

receive a speedy, unified response.

At the beginning of the thirteenth century, Pope

Innocent III added much to the business of such

assemblies. He carried out a major reform of church

administration, the ideal of which he early made clear

in a "decretal" (that is, a decree) regulating the

discipline of the lower clergy. "What touches all," he

had written, quoting a maxim from the Roman private law,

"should be approved by all." Because the decretal was

important to the lower clergy, the maxim was soon widely

quoted, not always in the spirit in which Innocent

intended. In 1295, it appeared in the summons by which

clergy were called to Edward I’s "model parliament".

Innocent's doctrine of approval was not a

formulation of the principle of consent (in our sense)

but simply a maxim of administration. Approval of all

concerned is supposed wise, not necessary (a "should" of

prudence rather than a "shall" of right). Innocent,

prince of the church, claimed within the church a rule

as absolute as that of the Roman emperor. Power flowed

down from him, Peter's vice-regent, to the lowest

churchman, lodging wherever the pope wished. The pope

moved power from one place to another because he thought

it in the interests of the church to do so, not because

the lower clergy had any more right to exercise power

than did a bishop. Each had exactly the right the pope

gave him. The clergy's approval was not consent but a

legal form the pope could do without if he chose. The

clergy were obliged by their approval, when they were,

only because they were obliged by whatever the pope

chose and he had chosen to oblige them by their own

approval.97

The distinction between approval and consent is a

fine one, especially for those used to the feudal

connection of promise and obligation. Feudal ideas could

no more be kept out of the church than church ideas

could be kept out of the king's castle. If the king had

to recruit his administrators from among those the

church educated, the church had to recruit its clerics

97. It was this conception of church organization against whichthe Counciliarists, beginning with Marsilius of Padua, would soonbe writing, their intellectual revolt eventually ending in defeatalmost four centuries later.

96. Rannulf Glanvill, The treatise on the laws and custom of the realm ofEngland commonly called Glanvill, edited by G.D.G. Hall (Thomas Nelsonand Son Ltd.: London, 1965), II, 3 (paid champions arespecifically prohibited). Matters are, however, a bit morecomplicated than I have made them seem. For many cases, it wouldbe those who swore to the truth of one side or the other's claimwho would have to fight. For a good general reference on almostany question of English legal history concerning the period we arenow discussing, see William Holdsworth, A History of English Law, vol.I, 6th ed. (Metheun and Co. Ltd.: London, 1938).

from among the sons and daughters of feudal lords and

vassals. Even within the church, Innocent's doctrine of

approval sometimes sounded like the principle of

consent. "My lord," an assembly of clergy complained to

a papal legate in 1225, "we have heard you have special

letters from the Curia to exact prebends from conventual

churches and we wonder that you proposed nothing of it

in this council, while we, whom the matter especially

touches, are present."98 Though the pope did not need

the council's consent to exact prebends (revenue to

support a stipend), the council had apparently come to

expect him to act as if he did.

If necessity is the mother of invention, confusion

is often the father. By the end of the thirteenth

century, some ecclesiastical writers would be using the

principle of consent in just this way, comparing the

pope to a secular ruler.99 But in 1225, such use was

still in the future, and such a complaint simply showed

confusion about papal reform, canon law intending no

analogy between king and pope. The analogy was, however,

so easy to draw that many must have drawn it. Innocent

himself had declared the pope the chief lord of

Christendom, had treated the German emperor as his

subordinate, and had accepted as vassals many of the

kings of Europe, John of England among them.

Fourth Lateran Council

In 1215, Innocent called the fourth Lateran

council, exhibiting the possibilities of a nonfeudal

legislature for all to see who cared to. Many laymen in

Christendom must have seen. There had been three Lateran

councils since 1122. Though doing some legislating, each

had been a small affair concerned primarily with policy

or administration. The council of 1215 was quite

different. At the height of his power, Innocent summoned

a council "to extirpate vices and implant virtue, to

correct excesses and reform manners, to eliminate

heresies and strengthen faith, to allay discord and

establish peace, to end oppression and increase

liberty." He summoned 400 bishops, 800 abbots and

priors, and all the monarchs of Catholic Europe. These

alone would have made the council unlike any since the

time of the Fathers and should have sufficed to

represent the community of the church. But Innocent

apparently thought otherwise. He also commanded each

bishop to see that every chapter in his diocese sent to

the council some suitable men to act for it. He gave as

his reason for the innovation his intention to put

before the council business touching chapters.100 That

grand council, composed of great personages and simple

proctors, then legislated grandly, pronouncing the

church one and universal; enjoining annual confession,

penance, and communion; regulating in detail episcopal

elections and qualifications of clergy; providing for

the maintenance of cathedral schools and for theological

institutions; forbidding trial by ordeal and combat; and

so on.

The fourth Lateran council exhibited the

possibilities of a legislature without quite revealing

how a feudal king was to make one of his own. Innocent

had summoned all those he thought touched by what the

council would do. Those he summoned came because the

pope had summoned them. By custom, a king could summon

for counsel and aid only those who owed him service.

Those who came did so because they had promised to come.

If a king summoned others, those owing him no service,

why should they come? What could make them come?

Innocent's council contained both some who acted for

themselves and some who acted for others. The king had

often summoned men to act for themselves, but how could

he make a knight or burgess act for another? Innocent's

council made laws as well as laying taxes, taxed those

not present as well as those present, and even changed

civil law all over Catholic Europe. The pope, having

plenitude of power from God, might well give a council

power to make law or levy taxes however it pleased, the

fear of God being the efficacious sanction for whatever

it did. But a king had no such power in fact, though his

clerics told him he too held office by the grace of God.

His magnates obeyed custom first; oath second; and their

king, only in consequence. A king might call whomever he

pleased to a council. But though all came, the work of

the council would prove mere words without something

like the feudal promise to make it obliging.

Perhaps even without a fourth Lateran council, the

useful elements of jury summons and appearance by

attorney, heated in the furnace of the king's need,

might have combined with feudal promising to form a

principle of (political) consent. But even after that

Lateran council, the principle of consent took form only

slowly. The council merely stated a problem: Where was a

king to find an institution (like the Lateran council) to lay taxes (and change

laws) obliging every subject with the obliging power of the feudal promise

while not requiring of subjects what they would not do? The century

following the fourth Lateran council was a time of

political experimentation all over Catholic Europe. Most

of the experiments failed. But from the debris of

experimentation there eventually emerged the

representative national legislatures characteristic of

Europe in the fourteenth, fifteenth, and sixteenth

centuries, the institutions of medieval

constitutionalism—and the principle of consent.

Notes

Chapter 7

Consent in Person and by Proxy

The English parliament, among the earliest medieval

legislatures, emerged only slowly and uncertainly, as

much by chance as by choice, more legal punctilio than

political ideal, an unstable compromise of interests

rather than a decisive public act.101 Parliament, an

assembly not of magnates only but of magnates and

representatives of others, emerged slowly in part

because its emergence required major changes in custom;

in part because both king and subjects had to see its

usefulness; but in part too because parliament had to

take a form making its actions morally obliging to those

present only by others (as well as to those present in

person).

In the thirteenth century, most questions about the

form of parliament were in fact questions about the form

of summons. The summons was the constitution of

parliament, parliament existing only at the king's call

and only for as long as he pleased. Parliament had no

continuous life, not much continuity of membership among

representatives, and only that continuity of procedure

imparted to it by the continuity of the royal court. The

members of parliament were determined by who were

summoned; its powers, by the purpose for which they were

summoned; its rights, by the terms of summons.

Parliament began to take form in the 1240s, but its form

was still not settled until well after 1300.

The clerks of Edward I struggled for most of his

long reign (1272-1307) to formulate a summons satisfying

at once both king and people. The king wanted to call

proxies with full discretion, able to do at once

whatever might need doing. His subjects wanted to send

mere messengers to fetch the king's proposals, present

them to county or town, and carry the decisions back to

him. By the end of the thirteenth century, Edward's

clerks had found a formula so satisfactory that it was

to remain almost unchanged until the middle of the

nineteenth century. The following writ of summons,

probably first used in 1305, gives the formula by which

Edward's clerks finally transformed summoning of jurors

into summoning of attorneys—and so, transformed the

giving of feudal promises into the giving of political

consent:

To the sheriff, greetings: We firmly enjoin you tosee to it that from your county two knights areelected without delay; and from each town or cityin your county, two of the more discreet burgessesor citizens, capable of work. And they are to bemade to appear before us at Westminster on theSunday following the Feast of St. Matthew nextensuing. And these knights, citizens, and burgessesare to have full and sufficient power forthemselves and their respective communities to doand consent to those things which in our parliamentshall be ordained, lest for lack of this powerthese matters should remain unaccomplished.102

Proctors were summoned with a different formula

addressed to their bishop rather than to the local

sheriff. Magnates (and prelates) were summoned

individually by an older formula. But the most important

writ, the writ of the future, is this one for summoning

knights and burgesses.103

The writ reveals parliament to be not a modern

legislature but an assembly of men in public service

bearing the proxies of many back home. The writ shows no

attention to the procedure for electing representatives.

Each county had long elected (that is, chosen in some

way or other) its own coroner; and each town, its own

council. Communities had been sending elected

representatives to the royal court off and on since at

least 1227. The writ simply assumes some customary

procedure for holding an election, unconcerned that

procedures might vary from one community to the next.

The writ is equally unconcerned with the ratio of

representatives to represented. Though one county or

town may have many more inhabitants than another, each

is to have just two representatives. The writ is

concerned only that the representatives be men of some

quality, a knight or "discreet burgess". The sending of

representatives is treated as if it were the sending of

jurors to bear up the record of a trial. Representing is

neither an office someone might run for nor a

responsibility that men might freely meet. Serving in

parliament is "work". Though it requires men of quality,

even such men must be "made to appear". Parliament is

the king's business; and, by his summons, now public

business, but it is not yet a business anyone will

participate in unless "made to".

The business of parliament is consenting, not

legislating. Representatives are to appear with power

"to do and consent". The writ treats a community not as

a corporation the acts of which oblige all members, but

as a multitude of individuals each obliged by his own

act. Each representative is to come not simply with

power to consent for his community. He is to come with

power to consent both for himself and for (the rest of)

his community. The representative comes both for himself

and for those back home, is to consent in person for

himself and as proxy for those back home, and so

realizes in one person both consent in person and

consent by proxy. Though he is to be elected "from" his

community, he is not treated as the member of a body but

as one individual among others. The writ is faithful to

the individualism of the feudal promise. The writ can

show no concern for the procedure of election because

the power of attorney is dependent not on the choice of

representative but on his being granted the power to act

for those he is to represent.

Election and grant of power are logically separate

questions. The writ is concerned only with the question

of power. The power is to be "full and sufficient." The

representative is not to be able to plead "no authority"

(as some had), not to have to return home to consult,

and not to be bound before he arrives. He is to come

ready to oblige himself and his community without delay.

He is not forbidden to come instructed, but he must have

full power. The writ does not distinguish between tax

and law, or between law and policy. The representative

may be asked to consent to whatever might be "ordained".

Since parliament is only a special form of the royal

court, the king may there ordain whatever is within his

own power as well as what is within his power only with

the consent of parliament. The king, not parliament,

decides what shall be proposed for consent. The writ

treats parliament as without power to initiate

legislation of any sort. Parliament can only consent to

what "shall be ordained".

The consent is not therefore a mere formality. The

writ does not warn (as one might expect after Magna

Carta) that business will proceed whether or not all

communities send representatives, whether or not all

representatives come with full and sufficient power, or

whether or not all consent. Instead, the writ warns that

failure to send a representative with full and

sufficient power may cause something to remain

"unaccomplished". Though the writ gives the impression

that every representative must consent if something is

not to remain unaccomplished, the writ is in fact silent

on the procedure of parliament. The writ pays no more

attention to the procedure of parliament itself than to

the procedure of its election. Is parliament to consent

by each representative consenting expressly just as in

the feudal gathering of magnates? If so, the writ has no

reason to mention procedure, since in a sense there is

none. If consent is not to be by each representative

consenting expressly for himself and for his community,

by what procedure is parliament to consent? Custom had

as yet no settled alternative to the consent of all and,

as the next chapter will show, custom would have no

alternative for a century or more to come.

Notes

PART THREE: The Third Principle of Consent

"As long as the medieval, essentially juristic,conception of government as the offspring ratherthan the parent of law remained true to life, andas long as the contract remained in its medievalform, it could not be called unhistorical, or self-contradictory." — J.W. Gough, The Social Contract, p.26

Part Two examined the prehistory of consent, the

circumstances from which consent emerged after 1200, and

the forms in which it first emerged. This part begins

with an early description of consent in parliament and

ends with questions raised by the practice of consent

during the last three centuries, adding a third

principle of consent, that of consent by legislators, to

the two already identified, consent in person and

consent by proxy. This part also puts into historical

relation consent and such procedures as election of

legislators, majority decision, and apportionment.

Chapter 8

Modus: Consent in Parliament about 1320

The Modus Tendendi Parliamentum is a handbook for a

parliament of the early fourteenth century.104 The

writer, unknown but probably a parliamentary clerk, had

ideas of his own. His handbook is as much a collection

of proposed reforms as of actual practice. Though Modus

may have gained considerable authority during the

fourteenth century as an early Robert's Rules, historians

seem agreed that its fusion of proposed and actual makes

it unreliable history. Modus is nevertheless a treasure

house. The treasure is as much in the falsehoods as in

the facts.

Judged by what little else is known of parliaments

under Edward II (1307-1326), Modus is the work of

someone with advanced ideas. Modus has a higher opinion

of the commons than the facts could justify for another

half century, a feeling for parliament as a permanent

institution most political writers would not show until

the end of the fifteenth century, and a sense for

procedural detail (from the salary of a member to the

assignment of clerks to committees) unequaled until the

seventeenth century. The treasure of Modus, apart from

the wealth of detail, is precisely its advanced ideas.

The parliament of Modus is the perfect fourteenth-

century parliament, a parliament with its principles

exposed and worked in a certain direction. Modus, though

it has no place for the feudal ideas of Magna Carta,

still moves freely among ideas equally unfamiliar. Modus

reveals a parliament of mixed membership like the fourth

Lateran council, a procedure sharply distinguishing

taxes from other matters, and a principle of consent

having nothing to do with majority vote. Modus both

provides some evidence for how the writ of summons

(quoted in Chapter 7) was originally understood and

establishes a fixed point from which to chart consent's

later career.

Modus, while recognizing no houses of parliament,

does distinguish five estates or grades (exclusive of

the king): 1) bishops and other chief clergy holding

feudal tenure; 2) proctors of the clergy; 3) lords and

barons; 4) knights of the counties; and 5) citizens and

burgesses. These estates are sometimes grouped as:

magnates, whether bishops, other chief clergy, earls or

barons, "each of whom attends parliament in his own

right as an individual"; and commons, whether "proctors

of the clergy, knights of counties, or citizens and

burgesses, who together represent the whole commons of

England."105 A magnate may act as he thinks best, but a

common member is "to act as his community would have

acted if each and every individual... had been there in

person".106 Common members are to bring with them to

parliament "warrants in duplicate... to the effect that

they have been sent as duly elected representatives and

attorneys of their [respective communities]."107 Modus,

though here consistent with the writ of summons, neither

states the formula of summons nor says more about the

procedure of election than did the summons. The primary

concern of Modus is parliament itself, not what happens

before or after.

Once parliament is assembled, the chancellor, or

some other royal official, announces to the whole body

"the reasons for calling parliament together".108 The

business of parliament is "first, war matters... and

other business touching the persons of the king, queen,

or their children [for example, aids]; secondly, matters

of public concern to the kingdom, for example, the

statutory amendment of defective laws...; and thirdly,

private business... taken according to the order in

which petitions have been filed."109 For the first five

days of parliament anyone, whether a member or not, may

"lodge a petition or complaint before parliament".110 The

procedure of parliament differs significantly with the

kind of business. I shall discuss the differences, not

in the order of business, but beginning with aids, going

next to petitions, and ending with the public business.

Aids

The granting of aids is the only business important

enough to have a chapter to itself. The procedure is

close to that required by Magna Carta, though Magna Carta

is not mentioned: "It is not customary," according to

Modus, "for the king to seek aid from his kingdom for

any other reason than for an impending war, or to knight

his sons or to give his daughters in marriage."111 The

aid is "to be sought in full parliament... and should be

granted by the common consent of all members of

parliament."112

Having plainly required unanimity for an aid

("common consent of all"), Modus recognizes a possible

exception. The exception, though at first it seems a

startling innovation for the fourteenth century, turns

out to be a modest technicality noteworthy here only for

showing the absolute dominion of unanimity in taxation.

For once, the exception does prove the rule.

"[It] should be clearly understood," warns Modus

(seeming to take back what it has just given out), "that

two knights representing a county in parliament have a

greater voice in parliament in granting and refusing

than a lord earl of England, and likewise the

proctors... of a diocese have a greater voice... if they

all agree, than the bishop himself."113 How can anyone

have a greater voice than any other where a vote has to

be unanimous? Why do two knights, but not one, outweigh

an earl? Is it simply that two votes are greater than

one? Why then must the proctors of a diocese all agree

if they are to outweigh the bishop? Why not just one

more than half? Is Modus here alluding to something like

the modern primacy of the house of commons almost at

parliament's beginning?

The evidence Modus offers for its claim answers all

these questions. "The king can hold a parliament", Modus

observes, "with the commons of his kingdom, without

bishops, earls, and barons, provided that these have

been summoned [and choose not to come]."114 Modus might

have cited Chapter 40 of Magna Carta to show that

business may proceed though not every magnate answers

the summons to parliament. Instead, Modus relies upon

historical myth (a myth of great importance in the

seventeenth century). The king could hold a parliament

without his magnates, argues Modus, "because once there

were no bishops, earls and barons, and yet the kings of

those days held their parliaments."115 The myth, whatever

its origin, indicates that parliament is already

immemorial custom, its recent origin forgotten. Having

shown the magnates to be dispensable to parliament,

Modus goes on to show the commons to be indispensable.

Modus correctly points out that "if the commons, both

clergy and lay, were to be summoned to parliament,...

but refused to come for some definite reason, as for

example, if they held that the king was not ruling as he

should,... there would be no parliament."116 There would,

Modus might have added, be only the feudal gathering of

magnates with all its feudal power.

So, the claim of greater voice for commons in

parliament comes to this: Two knight have more voice in

parliament than does an earl because, though one counts

no more than the other, the commons are (logically)

necessary to parliament while the magnates are not.

There must be two knights, not just one, because a

county cannot be represented by one knight. The two must

be there and agree if they or those back home are to

have any voice at all. The same for the proctors of the

diocese. The claim of greater voice has nothing to do

with voting or a primacy of the House of Commons.

Consent to aids is consent by every one.

Petitions

The procedure for disposing of petitions, though

not altogether clear, is clearly different from that of

granting aid. Petitioning, though "private business" one

might expect to be sent to administrators or judges, is

treated in Modus as a special class of "legislation"

(much as a modern legislature might have its "private"

or "member's" bill). Some petitions may be sent to

committee. Members of parliament, being "specially

deputed to hear and examine petitions on their own, away

from the main body", are to return with the petitions

when they "have reached unanimity and full agreement on

their judgments... and deliver their judgments to the

full parliament."117 These petitions, together with any

not sent to committee, then follow the procedure for

other "legislation" (the other taking precedence).

Modus does not make much of petitioning, though

petitioning came to be of great importance. The delivery

of petitions in time of parliament helped make

attendance there worth the grant of aid the king seldom

failed to ask. The aids even came to be looked upon as

the king's fee for doing justice in parliament,

parliament itself being thought of as one of the king's

courts of justice. The passing of petitions (bills) was

the beginning of modern legislation. Even during the

fourteenth and fifteenth centuries, much of what entered

the statute books began not as a proposal from the king,

but as a petition from the commons. That Modus requires

unanimity in the committee considering petitions is,

then, a matter of consequence for the later history of

legislation. Of particular consequence is that Modus

speaks of agreement, not consent, when discussing the

vote for deciding what to do with a petition.

Unfortunately, Modus says so little about petition that

it is hard to say what the consequence is of what it

does say.

Other Business

Modus has a characteristically medieval

understanding of law. Law, according to Modus, may be

"customary law or law established by the executive or by

the practice of the courts."118 The only kind of law

Modus does not mention is the law we are most likely to

think of when we speak of "law", that is, law enacted by

a legislature. That is no mere oversight. Until at least

the sixteenth century, law (so called) would be more

command than rule, an act of magistracy. Even theorists

would have trouble explaining how there could be new law

as well as new enactments "correcting errors" in old

law.

Parliament itself could be understood not as a

rule-maker but as a judge, the "high court of

parliament", even when in fact it had made new rules.

Law for Modus, as for Henry de Bracton—a judge under

Henry III (1216-1272) and the great authority in English

law until the seventeenth century—, is "in the broadest

sense, everything that is read [and in] its special

sense a just sanction, ordering virtue and prohibiting

its opposite."119 Legislation in the modern sense of new

rule rather than new sanction is unknown (outside the

church). Not surprisingly then, Modus limits

"legislation" to "amendment of defects in the law" and

describes no distinct procedure for legislating.

"Legislating" is, in fact, almost anything but granting

aid.120

What Modus says about questions other than aid

suggests that parliament's role in "legislating" is

giving counsel, not consent. "[When] a contention,

doubt, or difficulty arises in matters of internal and

domestic policy, or in external relations and matters of

war, the problem should be reduced to writing and

referred to parliament... for debate and discussion

among the estates."121 If it "becomes necessary, each

estate should be instructed by the king... to withdraw

itself."122 The members of each estate then "consider and

decide among themselves the best and most proper way for

the matter to proceed, accordingly as they would be

willing to answer before God, both for the king, for

themselves, and for those whom they represent."123 Each

estate is to bring back its reply in writing. The matter

is then to be decided "in accordance with the best and

most sensible counsel, and in any case in such a way as

a majority of parliament can agree together."124

Parliament is no more a modern legislature than is

any one of the king's other counselors. But, even when

giving counsel, parliament is not to be thought to

decide by counting votes. Modus does not say whether

"majority" is majority of estates or of individuals, nor

does it say whether the majority is a numerical majority

or some other sort. Numerical majority cannot be

assumed. Writers contemporary with Modus certainly did

not assume it. Marsilius of Padua, for example,

completing his Defender of Peace, about this time, is

typical in this (if not in much else). Though he puts

the legislative power in "the people or the whole body

of citizens or the weightier part thereof", he

explicitly measures weight taking "into consideration

the quantity and quality of the persons in that

community over which the law is made" (just as Aristotle

had).125

Modus can say numerical majority when it wishes to.

Modus uses "greater number" once, during its

recommendation of a committee of twenty-five to settle

questions where there is no majority in parliament (a

committee, it should be noted, of the same size and of

equally special purpose, as the committee of barons

Magna Carta put under the same voting rule).126

The distinction between majorities, though known to

Aristotle and important now, must have appeared

unimportant to Modus when considering procedure in

parliament. It is easy to understand why. The king,

sitting among the three to five hundred members of his

parliament, was bound by no vote except in matters of

aid. In other matters, he put his questions, listened to

the debate much as a modern politician might read an

opinion poll, and then did as he thought best.

Parliament offered counsel, not command. The king would

no more ignore an opinion prevailing in parliament than

he would count heads to see what opinion prevailed. He

would listen for power, not for mere numbers, but seldom

would it happen that numbers stood on one side and power

on the other. The distinction between majorities would

not appear important to Modus because Modus

distinguishes aid and counsel, aid being a matter for

consent (contract) while counsel is merely a matter for

agreement (consensus). The grant of aid (obliging the

granters) requires express consent in person or by

proxy. No mere majority could oblige those not

consenting in person or by proxy. The giving of counsel

obliges no one, though one ought to give counsel as he

would be "willing to answer before God for the king, for

[himself], and for those [he represents]." Like aid,

counsel is now public business; but, except for aid, no

public business is yet the making of politically-

obliging rules. Though parliament institutionalizes

formal moral obligation to law, there is yet no

connection either between majority vote and consent or

between consent in parliament and law in general. Like

the 1305 writ of summons, Modus reveals a principle of

consent lacking anything now commonly supposed to

accompany consent, except formal moral obligation to pay

certain taxes.

There is, then, an important difference between the

way that I am reading English parliamentary practice and

the way that historians read the roughly contemporaneous

history of ideas. So, for example, Arthur Monahan

summarizes his argument:

This notion [of the ruler as regent exercisingpower for the community] can be seen in fullyexplicit form in Aquinas, when he uses the term"represent" and the notion of the ruler as "he whohas the power of the whole" (vis universitatis) in the

same text. In this sense the community is not somuch a collective whole of individual members eachwith individual rights as a part of the whole, asit is in an abstraction or, better, an image of thewhole. Ultimately, this is why the question of howthe people express their consent to having thepersonification of the commonweal exerciseauthority held so little interest for many medievalpolitical writers and legists.127

As I read English parliamentary practice, ordinary

people (or, at least, magnates, knights, burgesses, and

the like), though not political writers and (canon)

legists, already viewed themselves as individuals with

individual rights. The problem was to see themselves as

part of a collective (commonweal) larger than county or

town. Apparently, this problem was invisible to medieval

political writers and legists.

Notes

Chapter 9

Majority Vote and Other Refinements, 1320-1600

By 1600, decision in parliament (and out) had long

been by majority vote. Consent in parliament is no

longer limited to taxes but extends equally to all

lawmaking, and the decision of parliament is taken for

the consent of everyone present in person or by

representative, no matter how he voted. Consent in 1600

is already much like consent today. What happened during

the three centuries between the parliament of Modus and

the parliament of 1600? How did consent by individual

proxy become consent by majority? Sad to say, historians

have not been able to answer those questions with any

exactness. Early parliamentary history went largely

unrecorded. Little is known beyond the members of

parliament in those years and their acts. The change

from consent by individual proxy to consent by majority

went undebated and almost unnoticed. To the degree we

know anything, it seems that the crucial steps were

taken more for convenience than on any principle, more

by specification of what was thought to have been

practice than by any perceived departure from previous

practice. The change may have been complete before 1500.

But so little was then said of procedure that it is

impossible to tell. Still, though the parliamentary

records do not provide a narrative, they are sufficient

for a theory-disciplined reconstruction of the crucial

steps.

A reconstruction necessarily presents as one

orderly development what in fact may have been many

distinct developments, disorderly in themselves, united

only late, and perhaps given final form by the

accidental analogies of custom as much as by any inner

logic. It is a hypothesis inviting historians to search

archives for refutation. The obscurity of early

parliaments no doubt helps to explain how seventeenth

century writers, including both Hobbes and Locke, could

see consent by majority as a law of nature. A

reconstruction of the change from consent by individual

proxy to consent by majority, though not uninteresting

in itself, is of interest here because it invites us to

think of consent by majority as a complex and striking

achievement, a procedure not to be understood without

close study, a device of obligation not easily defended.

For purposes of discussion, I shall distinguish three

steps in the change from consent by proxy to consent by

legislative majority: 1) parliament's change from

gathering of individuals before the king to an organized

body, 2) regulation of parliamentary elections, and 3)

the maturing of parliamentary procedure.

From Gathering to Body

For a gathering like the early parliaments to

become a body, there had to be continuity of

participants from session to session. The magnates

always had such continuity, a magnate ordinarily coming

into parliament by inheritance and leaving by death. But

there was no such automatic continuity for the commons.

While parliament met rarely and attendance was more

burden than honor, more the king's business than the

public's, few commoners would attend more than one

parliament in a lifetime. The commons would have no more

continuity than a succession of common-law juries.

After 1300, parliament met more frequently—local

uprisings, feudal politics, and foreign wars making it

fiscally necessary for the king to summon parliament

almost biennially. Simultaneously, parliament became

more important both to magnates and (lay) commons. After

Edward I, England had a succession of weak kings. For

two centuries, with little respite, England's domestic

history is all court intrigue, crazy kings, popular

dissatisfaction, serious rebellions, and dynastic wars.

During these two centuries, the magnates found the

commons so useful that a great lord might take the

trouble to see that the same experienced men (of his

persuasion) appeared session after session for any

county within his gift. The commons itself also found

parliament useful for their purposes, especially as they

learned to negotiate with the king, trading grants of

aid for approval of their petitions. The commons came to

value experience in its representatives.

What Modus describes is still a gathering before

the king rather than a deliberative body, a multitude in

which individuals give consent or counsel, not a

corporate person that consents and counsels in its own

name. Nevertheless, even by the time of Modus, there

must have been sufficient continuity in commons for

parliament to become a body. What parliament then lacked

was not continuity in members so much as a sense of

membership. That great gathering in the sight of the

king, divided between laymen and clergy, magnates and

commons, burgesses and knights, worked against the

growth of any such sense. The king saw only individuals

debating before him; and those before him could not feel

themselves one body while they differed so much among

themselves both in opinion and class. Such a gathering

could not become a body.

Each particular estate, on the other hand, could

become a body. Small, unified in both interest and

culture, each estate naturally had a certain cohesion

even while its meeting apart was merely a preparatory

conference hastily convened outside of parliament. The

difference between such cohesion and membership is, of

course, still great. It is the difference between mere

mutual good feeling within a crowd and that sense of

ordered participation one has in regular, sustained, and

common deliberation under standing rules. There was not

likely to be such ordered participation as long as there

were five estates in one parliament. Five estates were

too many to coordinate without gathering them together.

Under the circumstances, they could not gather together

without becoming a mere gathering in the sight of the

king. Either parliament had to break up into estates or

the estates had to unite into a single body. In France,

"parliament" (the estates-general) broke up into the

three estates (clergy, nobles, and burgesses). Each

estate then acted for its own class, dealt directly with

the king, and let the king speak for the public

interest. Elsewhere in Catholic Europe, "parliament"

developed in other ways. In England, during the fifty

years after Modus, the estates reorganized into one

parliament of two houses.

The proctors of the clergy stopped attending

parliament soon after 1320. The lower clergy had little

interest in the public business of parliament. Their

government sat in Rome, not Westminster. Rather than

tire themselves in parliament, they returned to their

older practice of considering the king's aid along with

the other acts of charity (yes, charity!) they commonly

performed during their convocations. Whatever procedure

the commons worked out in the next two centuries, would

be worked out without the help or example of the already

deliberative practice of the clergy.

The bishops and other prelates remained in

parliament. Without their lower clergy, they sat merely

as lords spiritual beside lords temporal, sitting by the

same feudal right as the lords temporal and having much

the same interests. Though they remained a separate

estate in theory, in practice they soon became spiritual

lords among other lords.

During early parliaments, the knights preferred the

company of magnates to the company of burgesses. The

knights were bound to the magnates by the feudal past,

by a common interest in the land, and by a common tax

rate. But, by 1330, knights and burgesses were caucusing

together. Feudal tenure was already turning into simple

ownership. The new wool trade, a common dependence on

commerce rather than on feudal tenants, slowly brought

knight and burgess together just as it separated knight

and magnate. The new arrangement of classes would not be

complete for more than a century. But, by the 1340s,

knights and burgesses already met together by custom and

were known in the Parliamentary Rolls as "the men of the

commons". By 1380, they regularly reported the results

of their deliberation through a single speaker. The

commons had by then become a single body.128

By 1380, it was also customary for the king, if

present, and his officials to withdraw from the great

hall once the king or chancellor had announced the

reasons for the summons of parliament. Since by custom

the commons also withdrew to their own meeting place at

the same time, the lords had the great hall for their

own deliberations. They too, if only by default, could

become a single body.

By 1380 then, the once unofficial caucuses of five

estates had become two official meetings, two "houses".

Parliament had changed from a great gathering of estates

into one segmented body, each segment able to develop

procedures of its own and the two able to work together

well enough to speak for a single public interest. The

details of their procedures remained to be worked out

over the next few centuries. But already the great

gathering in the sight of the king was becoming a mere

formality.

Elections

Only the commons had to stand for election, the

lords sitting by individual right. At first, no one

worried much about the procedure of election, the only

worry being that enough good men be selected some way or

other (and come with full and sufficient power). Knights

were to be chosen in county court, a monthly assembly of

the freemen of the county, the same assembly at which

the sheriff impaneled juries and the king's judges tried

cases. All freemen were supposed to attend (not as

feudal service but as customary obligation). The sheriff

was not likely to enforce the attendance of all as long

as enough came to perform county business. (For the

purposes of knowledge of what was done there, the

presence of the others could be presumed; a county court

could not keep a secret.) Even if the county court had

only a small fraction of the freeman of the county

present, there was no scandal. While serving in

parliament was more burden than honor, election to

parliament was likely to be by acclamation upon

nomination by the sheriff or some other personage when

it was not by simple appointment announced at the county

court. The problem must generally have been not how to

decide a contested election but how to find two men both

able and willing to be elected. Though the king

repeatedly called for knights, he often had to make do

with squires, lawyers, or other less discreet gentlemen.

Practices often survive their usefulness. As late as

1406, the commons had to ask in petition that knights

not be elected "through the favoritism of the

sheriffs".129

"Election" in towns was not much more election than

in the counties. In fourteenth-century Lynn, for

example, the mayor on election day summoned a general

assembly of the most substantial burgesses, read them

the king's writ, and named four burgesses. These four

named four more who together named four more. These

twelve then withdrew from the assembly, chose two

candidates they thought fit, returned, handed the clerk

a note giving the names of the two, and listened while

the clerk proclaimed the two elected. There was, by

custom, no need for the assembly to come to a vote on

whether to elect the two.130

For a long time, both in county and town, there

must have been a good-natured indifference to who went

to parliament. Why worry about who went? Why not elect

by acclamation anyone nominated or stand by quietly

while some trusted official announced his choices? Any

discreet knight or burgess would carry up his neighbors'

petitions, say in parliament what he and his neighbors

were willing to pay in aid, and report back what had

been done there. The king certainly did not care what

counted as election so long as those coming to

parliament promised him the aid he asked and those back

home were legally obliged to pay what was promised. The

law required certain forms; but neither king nor people

had much reason to look beyond the forms. The people had

no reason to look beyond, because the form of election

did not much affect what the elected did. The king had

no reason to look beyond as long the people found the

forms satisfactory. The king would have gladly put aside

parliament entirely, if he could have afforded to do so.

So foreign is this indifference to representation in

parliament that it is today hard to believe that, as

late as 1404, the king could exempt Colchester from the

burden of sending burgesses to parliament on condition

that the town accept all statutes, ordinances, and

charges made or granted in parliament.131

Dissension makes for precise rules of procedure;

consensus, for half-expressed principles. While

parliament only granted aid, counseled the king, and

transmitted petitions, parliamentary elections could

work by consensus and no one would make much of

procedure. Even after service in parliament became

enough of an honor for individuals to compete hotly

against one another, the electors still had little

reason to make much of the election. Though the king

might seek counsel from parliament concerning his

business, the king's business seldom seemed the business

of those electing members to parliament. The king's wars

were his affair, though some of the money for them was

not. Electors were no more likely to divide over such a

war than over whom the king chose to marry. Such affairs

were not part of the ordinary elector's life. Electors

were united by a common interest in keeping grants of

aid small and having their petitions granted. Only

rarely might the electors of a town or county divide

over the merit of a particular candidate or petition.

Electors were also united by a common interest in

having elections made quickly and coolly. Every elector

had to leave his own affairs to attend town assembly or

county court. He made little profit doing the king's

business, but he could risk a great deal. By supporting

this or that candidate for parliament too hotly, the

elector might alienate useful friends or make powerful

enemies. Where few could gain and many might lose, many

might not attend the election at all; and many of those

attending might stand by silently, quite satisfied with

any decision not slow in coming. Others, though they

shouted for this or that candidate, might make no

objection when another was declared the winner and might

even join in the general acclamation. What had they to

gain from objecting?

That good-natured indifference must have failed

sometimes, even in the fourteenth century. To have a

common interest is one thing; to agree upon it, another.

But much stood in the way of failing to agree. The

issues were likely to be simple and familiar. The

community was small enough for much to be settled

informally. Even the practice of sending two

representatives to each parliament allowed many

divisions to be patched up at the election and sent up

to parliament with the favorites of the divided

electorate.

Nevertheless, sometimes the electors must have

hotly divided, perhaps over a petition, over loyalties

to opposed and powerful families seeking to keep all

honors in their own followers, or over some other

enduring or transitory cause. If, by election day, one

candidate was clearly stronger than the other, the

election might still be decided quietly, the weaker side

not wishing to pick a fight it would lose. If, however,

the strength of the two sides seemed equal, someone

might suggest a special method for deciding the

election. What method would matter little, provided it

was consistent with custom, was agreeable to the

candidates, and would not upset many electors. In some

places candidates might draw straws; in others perhaps,

fight with swords; in others, suffer some ordeal. But,

because of its use in Magna Carta and canon law, decision

by numerical majority must have been well known and so,

often suggested. A method once used successfully would

likely be used again and in time become customary with

the particular county or town. Decision by numerical

majority, because it is easy to use and bears some

relation to power, would seldom prove unsuccessful when

used.

When election by numerical majority became

customary in this way, the principle of election would

not be simple majority vote but by agreement of all the electors

of the community or at least the greater number. The electors would

struggle to get the agreement of all on some slate and

only failing in that would fall back upon counting

votes. Election by majority vote would be a second-best

election. The principle of election would become the

principle of simple majority only where disagreement in

the electorate became more common than unanimity or at

least common enough to be accustomed.

By the end of the fourteenth century, as the

commons became increasingly important to the magnates in

their dynastic intrigues, individual magnates took an

increasingly important part in the elections of their

locale, introducing into the electorate systematic and

persistent divisions. Because of the uncertainty of

custom in some locales and the duplicity of officials in

others, disputed election became more common. Because

the electors of each community continued to share an

interest in quick, quiet elections, parliament laid down

a general rule to foreclose or settle such disputes. The

franchise act of 1429 made decision by majority vote the

rule for parliamentary elections where the electors

could not all agree.132

The franchise act, though treated as a minor

reform, suggests a major change in the understanding of

representation. Corporate procedure (decision by

majority vote) has displaced feudal individualism as the

principle of election. The writ of summons and the Modus

had treated the represented community as a multitude of

individuals, the representative as an attorney or proxy

for each and every individual in the community. The

franchise act, while leaving the representative an

attorney for each and every individual, treats the

represented community (the electors) as a body, an

electorate. Removing from the individual electors the

choice of representative, the act placed that choice in

the electorate acting by majority decision. While

election was by agreement of all, each elector might be

supposed to give the representative a power of attorney

by the same express agreement or silence by which he

chose the representative. Once election was by majority,

that could no longer be supposed. How could a vote for A

be consent to B?

The representative had to be granted a power of

attorney for each and every elector if he was to be able

(in point of law) to act as if each and every member of

his community were present in person. The writ of

summons required him to have such power. What could be

supposed if the proxy was not given by election? There

seem to be only two options, either a) that each

individual granted the representative a power of

attorney by some act distinct from election or b) that

the electorate itself granted that power by election.

The only evident candidate for power-granting act

distinct from election is instructing-the-

representative-after-election. But instructing seems

ineligible for that act. Where election has to be by

majority vote, because all cannot agree, there will not

always (not even often) be enough agreement for

instruction to be by all.

So much for the first supposition. That leaves the

second, that the electorate grants the power of attorney

for each elector by the act of election itself. If the

electorate can grant a power of attorney for individual

electors, the electorate can oblige individual electors

by its acts and individual electors can consent without

agreeing to anything. The supposition has an

abstractness, a clarity of principle, not to be found in

any medieval statement recognizing consent as a

principle of government.

Gough thinks the first writer to distinguish

clearly between the contract of government and the

contract creating a society with which the government

could contract was the Italian lawyer Marius Salamonius.

Salamonius did this in De Principatu, probably complete by

1513, though published only in 1544.133 Even 1513 is

almost half a century after the English had begun acting

as if there were a social contract (a contract

empowering the electorate to act as a political

society). 1513 is, nonetheless, more than a century

before English political theory took notice of it. That,

I think, is not as surprising as it may seem. As we

shall see in Part Four, political theory paid little

attention to the kingdoms until after the Protestant

Reformation. The conceptual problem election by majority

vote poses for our reconstruction is nonetheless

substantial: The social contract we have described is

contrary to feudal individualism; it inserts the

decision of a body (rather than an individual proxy)

between the decision of individuals and what they agree

to do. How could medieval Englishmen act on such a

proposition without recognizing in their actions a new,

a startlingly new, principle? How could such a principle

be adopted without recorded outcry?

The answer is, I think, that the new principle fit

in with an old one, the same principle that made

attendance at county court small and made the choice of

representative so long a matter of indifference. The new

principle remained hidden for a long time, its

significance appearing only in retrospect after

centuries of development brought it to light and

distinguished it from the old one.134 If the franchise

act changed practice little, it changed feeling about

practice less. If it forgot feudal individualism, it

remembered communal sentiment. Feudalism was a national

institution, but county and town were local societies. A

large town was in most respects as self-governing as a

city-state; county, only somewhat less so. The towns

took care of their own affairs under royal charter. In a

county, the royal judge, advised by a local jury, served

local interests; the royal sheriff, watched by the local

coroner and jury, resided in the locale; and the law

remained primarily the common law of the locale. If

feudalism held the nation together, habit and sentiment

held together the inhabitants of a particular locale. If

feudalism could turn any relation between men into the

private business of individuals, the county court or

town assembly could return it to the community. Freemen

appeared in county court not as tenants of this or that

lord but as freeholders upon a common business. The same

experience that left no room for consent in ancient

principles, worked against it in county and town. For

the common freeholder, the nation was (at best) an

abstraction while the county was his native land. The

king was a foreigner and parliament, a gathering of

strangers; but his county men were friends, patrons, and

relatives, and their court, a gathering of affections.

Consent seems to be a principle only in a

population not to be held together simply by habit and

sentiment. Consent is unnecessary in a (civil) society

that seems natural. Though consent was a principle in

medieval England, it was probably not as much a

principle within county or town as nationally.135

Whatever the national divisions, within a local

electorate, no elector stood to lose at the hands of his

county men what he stood to lose at the hands of the

king. His county men shared with him a common interest

in low taxes and preservation of their common law. A

division over dynasties or baronic intrigue was a

division of opinion, not of interest. Each elector was

like every other in what counted; and, for each, that

likeness was as evident as the peculiarities of the

local speech.

Parliamentary Procedure

Though the franchise act of 1429 must have added

considerably to the authority of majority vote, majority

vote does not seem to have become parliamentary

procedure when it became the procedure for parliamentary

elections.136 Parliament had to grow into it on its own.

Parliament may have used majority vote for some purposes

quite early. Modus mentions certain decisions by "the

greater number". But parliament could not then have used

majority vote for its ordinary procedure. The

heterogeneity of early parliaments and the distinction

between aid and counsel made such use impossible. A

majority, taking into account quality as well as

quantity, may have ruled in early parliaments, the few

and the ignoble submitting to the inevitable. But

majority vote would have made no sense where those

voting did not consider themselves roughly equal at

least in those matters upon which they were voting. Why

should a lord earl of England allow himself to be

counted as less than two knights when he could defeat

them in battle and outweigh them in counsel? The

reorganization of parliament into houses of equals was

necessary if parliament was ever to vote. And even after

that, much stood in the way of voting.

In the upper house, feudal differentiation set up

such a graduated brotherhood that decision by vote among

the lords would have seemed as odd as decision by vote

in a family of four generations where the youngest is

not of age and the oldest is already senile. Voting must

have come late to the house of lords, having to wait

till the lords could look upon themselves as all peers

of the realm and so, equal. Voting coming late to them,

it may have come by analogy with the commons or royal

council, where it was by then already in use.

In the lower house, knights and burgesses were long

two distinct and unequal classes, paying tallage at

different rates and serving the king in different ways.

As late as 1372, the king could still detain the

burgesses at parliament to negotiate a separate aid

after sending the knights home.137 Before there could be

voting in a house of commons, knights and burgesses had

to join in commerce, intermarry, and otherwise merge

into a single class. Only with the disappearance of

differences in quality would it be possible for either

knights or burgesses to take seriously the idea of

deciding by mere quantity, of counting votes as if one

vote were equal to another.

Even then, much would stand in the way of voting

aid. Voting on counsel would come easily enough once all

members of the commons were considered (more or less)

equal in wisdom. The opinion of the greater number might

then be presumed (as in canon law) to be the wiser.

Voting on petitions would come with voting on counsel. A

petition was no more than an unsolicited counsel. But

aid, understood as a grant by individuals present or

represented, could not come so easily. To vote a grant

meant understanding the whole commons of England to be a

single body like the electorate of county or town.

Because no one had any experience of such a national

community outside of parliament, voting aids had to wait

until the house of commons itself became such a

community.

Frequent parliaments, regular reelection of many

members, and long sessions together with the slow

merging of the classes of knight and burgess, would

built up in the house of commons those interconnected

friendships, family ties, habits of proceeding, and

common expectations favoring a communal sentiment in

parliament like that in a town assembly or county court.

Political circumstance also favored such a sentiment.

The house of commons had to act as one body even when

its members were not all agreed on how to act. The

commons was the weaker of the two houses (until at least

the sixteenth century). Its members were individually

more vulnerable to royal fury than a lord was; its

opinions, more easily ignored even when not divided.

Whatever the particular question before the commons on a

given day, the house had little power, its members

little security, unless the commons spoke with a single

voice.

By 1370, the commons had begun to conceal its

differences within the single voice of their "speaker".

If the commons did not vote, how did the speaker know

what to say to king and lords? One must suppose that, at

first, the speaker had nothing to say until every member

of commons, though perhaps not happy with a certain

proposal, was at least satisfied that he could not get

more and so showed himself content to keep quiet before

the king. At first, much of the business of the house

must have been done by consensus or by general

acclamation of the proposal that debate had shown to be

most popular. Even an aid might have been approved in

that way, the representatives of a few counties and

towns not wishing to stand apart from the rest. If the

rest were willing to grant a certain aid, the few might

as well concur. They differed little from the rest

except in opinion and had little chance of doing better

in direct negotiation with the king. Once acclamation

became customary for all questions including aid, it

would be hard to revert to unanimity for aids. If at

first it was seldom wise expressly to withhold consent,

in time it would no longer make sense to claim everyone

had to consent, the old principle of unanimity having

died out.

Decision by consensus is not decision by majority

vote. Not only is there no vote counting, there is also

no vote taken. Indeed, there is no exact number of votes

required to win by acclamation. Perhaps on one day and

for one question, acclamation might come when it seemed

that three-fifths of the house agreed; on another day

and for another question, perhaps the house would wait

to give acclamation until fully two-thirds seemed

agreed. Perhaps the weather or nearness to mealtime

would have as much to do with the number required for

acclamation as would the politics of the question or the

length of the debate. We must imagine the house of

commons proceeding without the modern distinction

between kinds of motions and kinds of votes. Perhaps at

first the popularity of a proposal was judged simply by

the numbers who rose to speak for and against and the

loudness of the cheers or groans that followed each

speech. Perhaps later, the house found it convenient to

raise hands for and against, or to divide according to

opinion (since in a large gathering the cheer of two-

thirds is often not distinctly louder than the cheer of

one-third). In time, however, the house must have

formalized the procedure by which it tested the balance

of opinion. Once the procedure was formalized someone

might call for a test of opinion when it seemed to him

debate had gone on long enough to settle opinion

substantially on one side or the other. If the test

proved him right, the opposition could fall silent and,

upon request of the presiding officer, the proposal

would be approved (or defeated) by acclamation. If, on

the other hand, the test of opinion proved him wrong,

debate might continue.

Acclamation having become customary in this way, it

would in time be taken for granted and, once taken for

granted, might more and more be omitted. The omission

might then itself become customary and acclamation

itself be forgotten just as unanimity had been before.

Parliament, having no written rules (on decision

procedures), would by custom decide questions by vote,

the subsequent silence of the body testifying to the

effectiveness of the vote. Straw voting would, by

stages, have become real voting.138

But even this real voting is not yet decision by

majority vote. Or perhaps it would be better to say that,

though this is majority voting, "majority" does not yet

have the exact meaning of decision by one-more-than-

half-those-voting. We must suppose a house of commons to

have had a close vote sometimes, to have shown itself

uneasy about ending debate while nearly divided, and to

have gone back to debate until there was a sufficient

preponderance on one side or the other. The authority of

simple majority vote must have grown slowly. If the jury

preserved decision by all, the canon law, the royal

council, the king's bench, and even parliamentary

election were one by one conquered for majority vote. If

someone were called upon to rule whether just one more

than half the members of the house was sufficient for

the house to adopt a proposal, he would, as time went on

and the analogies piled up, be ever more likely to rule

that it was.

Though as early as 1476, a judge ruled that a

statute might have force though only "le greindre party

des chevaliers des counties" assented, there is no way

to know whether the members of the house had yet made

exactly that interpretation of their principles.139 The

records report no votes until the next century; and it

is possible that there was until then no vote both so

important and so close as to call for such a ruling in

parliament. However that may be, by 1566, Sir Thomas

Smith, at one time or another, secretary of state for

Queen Elizabeth and a member of parliament, reported in

De Republica Anglorum, that in both houses "as the more

number doth agree, so it is agreed on, or dashed".140

Smith reports no other voting rule and, though he

discusses procedure at length, he mentions no procedural

vote whatever. Though he considers majority vote

important enough to mention, he apparently considers it

reasonable enough and old enough to need no defense and

to have no history; it had become "second nature".

Parliament had achieved consent by majority vote.141

Though—so reconstructed—the achievement of

consent by majority vote may seem inevitable, it was

not. No other kingdom in Europe achieved anything quite

like it for another two centuries. The Poles, to make an

example of an extreme, began their own constitutional

development at about the same time as did the English

and with the same feudal principle of promise; but they

achieved something so different that an English diplomat

thought it "crazy" when he had the opportunity to see it

at work while visiting Poland in 1598.142

Poland's national diet elected the king and, with

his consent, made the nation's laws. The diet consisted

of an upper and a lower house. The upper house, the

council, corresponded to the English house of lords,

being an assembly of all the nation's nobles, church

prelates, and the like. The lower house originally was

an assembly of all gentry, or rather of all those who

chose to come. The assembly, too large and disorderly to

protect the gentry's interests, had by 1493 become a

chamber of deputies. The towns of Poland, being few and

poor, never took much part in the assembly and had no

part at all in the chamber of deputies. Each deputy was

elected by a district diet, an assembly of all gentry of

a district much like England's county court. But,

contrary to (contemporary) English practice, each

district diet not only elected a deputy but also, after

extensive debate and with the unanimous consent of all

those present, gave him detailed instructions concerning

each piece of legislation to be put before the diet.

Such instruction was made easier and more likely by the

requirement that the king publish the agenda of the diet

with the call and by the practice of many kings of

sending trusted envoys to each district diet to explain

the legislation to be proposed and get the district's

support.143

By the early sixteenth century, the confirmed

practice in Poland was that nothing could be decided

without the joint consent of the members of the council

and the district deputies.144 "Consent" did not mean

"consent of the majority" (as by then it did in

England). Though practice did not always live up to

principle, the principle was that "if the deputies could

not attain... unanimity among themselves... then, after

the lapse of six weeks [the term of a diet]... the

deliberations [including all legislation previously

passed at that term] were declared null and void."145

This was the famous liberum veto. There could be no

legislation without unanimous consent of the deputies

and no unanimous consent of the deputies without

unanimity within and among the several district diets

about all the legislation of that term. In Poland, the

feudal principle of promise had developed in a different

direction. Deputies were messengers, not attorneys;

consent, by proxy in fact but virtually in person; and

the decision rule, not majority vote but unanimity, just

as in the feudal gathering of magnates, except that in

early times even the magnates could disagree on one

subject without threatening what they had already agreed

to.

Notes

Chapter 10

From Proctor to Picture

By 1600, the practice of consent in England

resembles closely the practice of consent today.

Decision in parliament is by majority vote and, except

in certain "rotten boroughs" (old towns long

depopulated), election to parliament is almost by

majority vote. The resemblance between the principle of

consent then and now is almost as close. An act of

parliament is supposed to oblige politically those

represented in parliament because they consented: "The

most high and absolute power of the realm of England

consisteth in parliament...," wrote Sir Thomas Smith,

"for every Englishman is intended to be there present,

either in person or by procuration and attorneys, of

what preeminence, state, dignity, or quality soever he

be, from the prince (be he king or queen) to the lowest

person of England. And the consent of the parliament is

taken to be every man's consent."146

For Smith, the principle of consent was proxy (when

not consent in person). The language of proxy

("procuration and attorneys") would serve other writers

well after 1600. For example, in his classic Commentaries

on the Laws of England, William Blackstone, writing two

centuries after Smith, could report that the "commons

consist of such men of property in the kingdom as have

not seats in the House of Lords, everyone of which has a

voice in parliament either personally or by his

representative".147 Even John Stuart Mill, arguing for

proportional representation a century after Blackstone,

might still attribute to an elected representative a

"general power of attorney".148

Nevertheless, for all the resemblance between

consent in 1600 and consent today, for all the service

the language of proxy has done between then and now, the

principle of consent today is not proxy and has not been

for several centuries. The language of proxy fits

today's practice badly. The act of a legislator is today

not the act of her constituents. The representative of

District Five, though she represents the citizens of

that district, acts in her own name, not in theirs as

would a proxy. She holds office, not a power of

attorney. No one supposes the constituents of District

Five to be present in or by her. The legislature, though

it represents the citizens of a state, does not consent

in their name, but merely makes their laws. The language

of proxy, though still used sometimes in discussions of

consent and representation, has now seldom more than a

metaphorical use, raising paradoxes the moment it is

taken literally.

An institution without counterpart in the

experience of a people will be understood by analogy

and, being so understood, may in time be made to

resemble the analogue in many more particulars than at

first it did. Parliament, never having any counterpart

in English experience, has always been understood by

analogy. Before 1600, parliament was understood

primarily by analogy with a court of justice. The

analogy was a happy one. Parliament had begun in the

same royal court as had the courts of justice, had

preserved much of the form of a court, and even did by

petition much a court might do as well.149 The analogy

made comprehensible much a thoughtful person might

otherwise have thought odd or even wrong. For example:

an act of parliament needed no public announcement to

take effect. The act might be enforced against anyone

even though in fact only the members of parliament and

the officers of the king knew of its enactment.

Ignorance was no excuse. How make sense of such a

practice?150

In a case heard in 1365, a certain judge Thorp was

perhaps the first to give a reason: "Though proclamation

has not been made in the country, everyone is held to

know a statute from the time it was made in parliament,

for as soon as parliament has decided anything, the law

holds that everyone has knowledge of it, for parliament

represents the body of the realm."151 Thorp, taking a

member of parliament to represent his community much as

an attorney represents a client, reasons that what the

member learns in parliament may thereafter be presumed

known to his community just as what an attorney learns

in court is thereafter presumed known to his client.

Blackstone says much the same as Thorpe four centuries

later: "[An] act of parliament needs no formal

promulgation to give it the force of law... because

every man in England is, in judgment of law, party to

making an act of parliament, being thereat by his

representative."152 Thorpe need not have drawn on the

analogy between parliament and a court of justice; he

might instead have reasoned that since a statute can do

no more than declare custom, the parties in the case

must be presumed to know the substance of what the

statute requires (though they knew nothing of its

declaration and need not be supposed to know anything of

its penalties). Thorpe's use of the court analogy shows

him to be ahead of his contemporaries. Understanding (it

seems) that a statute can change the law as well as

declare it, he tries to preserve the undoubted force of

unproclaimed statute by some other means.

Blackstone's use of the same analogy is, however,

already old-fashioned. Blackstone knew that a statute

can make new law and that the new law might well be

unknown to anyone outside parliament. When he says that

everyone is "in judgment of law" presumed present, the

phrase "in judgment of law" marks what, for Blackstone

and his contemporaries, is already a legal fiction. As

he makes clear elsewhere, the custom of his day absolved

a member of parliament from all communication even with

the "men of property" who elected him: "Every member,

though chosen by a particular district, when elected and

returned, serves for the whole realm...He is not bound

to consult with, or take advice of, his constituents.153

That Blackstone could repeat without condemnation

that an act of parliament needs no promulgation is

shameful. Who today would attribute to a legislator's

constituent knowledge of what the legislator helped to

enact? Though ignorance of the law is still (generally)

not an excuse for lawbreaking, knowledge is presumed

only where the law has been officially published or

otherwise made common knowledge. A secret law hardly

seems a law at all. Today the reasoning of Thorpe and

Blackstone seems not contrived only but barbaric; the

analogy between parliament and court, without appeal.

Some time after 1600 that analogy gave way to

another, that between parliament and a democratic

assembly of the nation. Where before, there was talk of

proctor, proxy, attorney, procuration, and so on, now

one hears of picture, replica, mirror, miniature, and so

on. Rule by parliament is said to be representative

democracy; democracy, but only within the nation's

representation; parliament, the nation writ small. If

the powers granted in the warrant of election were

important before, now apportionment of the legislature

is. If people no longer expect to find in parliament in

person or by attorney all those to be obliged, they

nevertheless expect to find there a fair likeness of the

nation. In the common understanding, similarity replaces

warrant as the crucial connection between represented

and representative. Edmund Burke, writing about the same

time as Blackstone, easily distinguished the two

analogies (though without recognizing their historical

sequence). In his Thoughts on the Causes of the Present Discontent,

he makes plain which is already dominant:

[It] is not the derivation of the power of the

House from the people which makes it in a distinctsense their representative. The king is therepresentative of the people, so are the lords; soare the judges. They are trustees for the people...all originate from the people. A popular origincannot therefore be the characteristicaldistinction of a popular representative. Thisbelongs equally to all parts of the government andin all forms. The virtue, spirit, and essence of aHouse of Commons consists in its being the expressimage of the feelings of the nation.154

By his indifference to the details of proctoring, Burke

tells us that representation-as-picture ("express

image") is already more familiar than representation-as-

proctoring. He does not distinguish between kinds of

derivation ("representatives" are not necessarily

"trustees") or even between derivations of different

powers. What compassion could Burke have for the clerks

of Edward I who took such pains to find just the right

formula for the summons to parliament, just the right

derivation of just the right powers? What understanding

could he have of his ancestors who thought the law made

the king and no one made the law? What does he know of

that time when very little could be derived from the

people but revenue?

The new analogy is today almost as happy as the old

one was four or five centuries ago. If parliament once

declared law as would a court, today parliament (or any

other democratic legislature) makes law much as did the

ancient popular assembly at Athens or Rome. If

parliament once was no more than one court-like body

within a government consisting mostly of courts, today

parliament has the same huge power over every other

agency of government that the Athenian assembly had in

the government of Athens. If the acts of parliament were

once supposed to oblige the nation because members of

parliament had power of attorney from their respective

constituents, today they are supposed to oblige because

(we are told) parliament mirrors the feelings, opinion,

will, or interests of the people.

The new analogy is, however, not as happy as the

old. The new analogy, unlike the old, suggests no

explanation of political obligation spreading from

parliament to the general citizenry. The old analogy

suggested the power of attorney as the explanation of

obligation, a suggestion both direct and appealing. The

new analogy suggests nothing at all. Granted that

parliament does what the whole people would do if it

deliberated instead of parliament—why should any

citizen be obliged politically if in fact parliament

made the law without him? What has any similarity

between one body and another to do with consent (of the

sort necessary for political obligation)? What has even

a similarity of result to do with it? The analogy,

though itself interesting, is not of interest here.

True, the change of analogy grossly complicates the

language of representation, the new analogy not yet

having fully displaced the old (in part, no doubt,

because of its own inadequacy). But the change of

analogy does not itself have much to do with the change

in principle of consent with which it is contemporary.

The change of principle, though having much the same

cause as the change of analogy, is (more or less)

independent of it. The change of principle is a change

from particular consent to particular taxes or laws (as

in Modus) to a general consent to a system of law; a

change from an assembly of representatives each of whom

represents some small part of those whom the whole

assembly represents (Colchester, for example), to an

assembly of representatives each of whom represents

everyone the whole assembly represents (and where,

therefore, the absence of the representatives from

Colchester will not affect the legal force of any new

law or tax in Colchester). The change is, in short, from

consent by proxy to consent by legislators. How could

such a change occur?

Notes

Chapter 11

The Reformation, Hooker, and Consent by

Legislators

The history recounted so far shows the English

principle of consent by proxy to have been theoretically

inadequate at least since the franchise act of 1429.

Blackstone, that careful reporter of archaic usage,

suggests the inadequacy in the descriptions of

parliament quoted in the last chapter. Discussing the

membership of parliament, he places in parliament only

"all men of property", correctly describing the English

electorate of his day. The same franchise act that made

election to parliament decidable by majority vote, made

ownership of a substantial amount of real property a

qualification for voting in parliamentary elections.

From 1429 till 1832, the only people eligible to vote

were people having a forty-shilling freehold (or the

equivalent in a town).155 Nonetheless, when discussing

those presumed to know the law, Blackstone places in

parliament not only all men of property but "every man

in England" (just as Sir Thomas Smith had done).156

Blackstone is, of course, again quite right. Though only

the propertied could vote in the England of his day, all

inhabitants (not men only, but also women and children)

were presumed to know every law enacted in parliament

and to be subject thereto. Though Blackstone accurately

describes the law of his own day, he would not have been

quite right if he had said the same of England in the

fourteenth or fifteenth century.

Nor would he have been quite wrong. The practice of

those centuries seems to have deftly avoided any

decision on whether one might be proxy for someone

expressly excluded from voting in the election. The

franchise act had disenfranchised those with little or

no property because "elections ...have of late been

carried out by too great and excessive a number of

people of whom the larger part have been people of

little substance or of no worth, each pretending to have

the same voice in such elections as the most worthy

knights or squires dwelling in the same counties,

whereby homicides, riots, assaults, and feuds are very

likely to arise."157 Apparently, the franchise act could

not make all votes equal without making voters (more or

less) equal too.

The resulting disenfranchisement, though it opened

the door to exploitation of the disenfranchised, was in

fact not followed by any exploitative legislation. The

unpropertied were seldom touched by new legislation; and

even less touched by its enforcement. The unpropertied

of the fourteenth and fifteenth centuries seem to have

become politically invisible, to have slipped beneath

the notice of the law, and so to have been absent from

the "everyone" present in parliament and out. The

unpropertied were of so "little substance" that (except

for taxes levied by custom) even the tax gatherer

ignored them. Between the disastrous experiment with a

poll tax in 1380 and the exceptional and ineffectual

capitation of Henry VIII in 1512, not one attempt was

made to tax Englishmen without property.158 The

unpropertied were "of no worth" even to the king.

Those holding some property but not a forty-

shilling freehold, whether the holding was too small or

by the wrong form of tenure, were counted among the

unpropertied and, like them, had (to quote Sir Thomas

Smith) "no voice nor authority in our commonwealth, and

no account is made of them but only to be ruled."159 The

number of the "almost propertied" could not have been

large. But, whether many or few, these, like woman and

children, were not among those who constituted "every

man".

The inhabitants of certain territories had much the

same status for a time, more by accident or

forgetfulness than on principle. The feudal holdings of

the king in France, though subject to the king in

parliament, were (till lost) treated as outside the

English principle of consent. Certain feudal holdings of

the king in England (Durham, Chester, and Lancaster),

though without representation in parliament until 1536

and occasionally subject to parliamentary act, were in

general treated as troublesome anomalies. The remaining

territories were at first treated as conquered land

outside England and then, in 1536, were either, like

Wales, brought into parliament or, like Ireland, given a

parliament of their own.160 The fourteenth and fifteenth

centuries thus deftly avoided asking directly whether an

Englishman worth something could be represented in

parliament though unenfranchised. If these centuries

avoided the question by leaving some of the

unenfranchised propertied out of England and leaving

those in England to be ruled only by special consent or

the common law, the succeeding centuries would

inadvertently force the question by transforming its

terms.

The change in principle of consent may conveniently

be dated from 1534, with the Act of Supremacy, the

beginning of the English reformation, yet it was not

complete a century later. Charles I (1625-1649) could

not have fought parliament for control of the (still

new) legislative power, his only claim to it divine

right, if the change in principle had by then been

complete. He would, like James II in 1688, have been

able to do no more than flee to France with a few

friends, impotent if not forgotten.

The change in consent required a new way of seeing

civil society, law, and legislation. Though some

individuals may have seen things in the new way before

1534, even by 1647 the change is evident only in a

minority sect or faction. The greater part of the

political nation seems not to have seen things in the

new way much before 1688; and the greater part of the

whole nation, not before 1800. The change in consent

required seeing civil society as held together by law

rather than by nature, of law as primarily legislation

rather than custom, and of legislation as making new

rules rather than merely formulating old ones. The

change in consent required, in other words, a new

understanding of law. What explains that change?

Legislation increased only very gradually between

1200 and 1500. The legislation of Henry VIII (1509-1547)

alone exceeded in volume all legislation enacted between

1200 and the start of his reign. The legislation of the

three Tudors succeeding him—Edward VI (1547-1553), Mary

(1553-1558), and Elizabeth (1558-1603)—together equaled

his. By 1534, lawyers had already long admitted that

statute was superior to common law, that statute might

make or unmake law as the king-in-parliament wished,

subject only to the already ideal limitation of the law

of nature or God.161 Yet, even in 1534, this was still

only legal theory. Statute was still "special law", the

exception; custom, the "common law", the paradigm. By

1688, however, statute was the paradigm; custom, no more

than statute-like rules judges followed with the silent

approval of the legislature. Since custom (the judges'

"common law") was in fact still the greater part of

English law well after 1688, the change of paradigm must

owe more to some particular experience of statute than

to the mere cumulative effect of the increasing number

of statutes. That experience is not hard to find.

Before 1534, statute more often declared old law

than made new, more often granted new liberties than

imposed new obligations, more often imposed new

penalties than made new offenses, and more often touched

only those close to the king than the general

population. Before 1534, the only legislation much

affecting what many Englishmen did was the levying of a

tax. The English reformation changed that, changing

repeatedly by statute the way an ordinary Englishman

might worship. Henry VIII merely changed the supreme

head of the English church from pope to king, dismantled

the ancient monasteries of England, and ended the

customary independence of convocation and canon court

from civil authority. Henry united church and state in

the office of the king. His son Edward changed church

service and discipline substantially. Mary, succeeding

Edward, repealed the legislation of Henry and Edward,

persecuted Protestants, and burned three hundred for the

heresy of openly professing what her father and half-

brother had required them to profess. Elizabeth,

succeeding Mary, reenacted the legislation of Henry and

Edward, enacted an official creed for the reformed

church, and otherwise completed the establishment of the

Anglican church. Half a century after the reformation

began, statute made it treason for anyone to convert a

Protestant Englishman (or Englishwoman) to the old

religion (Catholicism) and for any English subject so to

convert. Anyone merely attending a Catholic mass was

liable to fine or imprisonment. Indeed, merely failing

to attend the regular services of the Anglican church

was against the law. Though at first not well enforced,

by the reign of James I (1603-1625) these laws were

enforced with sufficient rigor that many Catholics and

nonconforming Protestants fled the country.

The importance of religion to ordinary people in

that last age of religious zeal is hard to estimate but

must have been great. What then must have been the

effect of such repeated and inconsistent meddling deep

in every-day religion! Surely, there must have be some

change in the ordinary Englishman's thinking about law.

Law had taken on religion, a custom at once ancient and

personal, at once transcendent and pervasive. The effect

is easy to imagine (though what can be imagined in a

moment took more than a century to work through in

practice): If custom is no argument against statute,

what can be said against statute? If God commanded a

particular religion, then of course one dare not submit

to any other, statute or no. One's immortal soul is more

important than life itself. But how does one determine

what God commands? Does one decide for himself or let

those in authority decide for him? Does God command

obedience to magistrates and priests even against one's

better judgment? If king-in-parliament and pope on his

throne dispute which religion God commands, how can an

ordinary person presume to decide? If the fate of one's

soul hangs on the decision, how can an ordinary person

not presume to decide? But how decide if not by command

of magistrate or priest? By law? But what if law is

whatever the king says it is, nothing but positive law

or statute? Custom? What if custom, however old, is only

a kind of statue, the king's support giving it whatever

authority it deserves? One must go deeper than statute

or custom, back to God's law or reason, back to what

one's own reason can read in Bible or the world. Thus,

once the paradigm of law becomes enacted law, even

custom changes from second nature to external

constraint. The customary rights of king and parliament,

representation and decision by majority vote, even the

common law itself, can no longer draw authority from

usage. Even the common law becomes a form of taxation, a

burden on individual conscience rather than estate, but

a burden nonetheless.

The principle of consent by proxy recognized in the

legislative only a passive and discontinuous power. The

legislative power needed representatives to come into

being; it could act only upon those whose consent was

present or represented. If Colchester did not send

burgesses to parliament, then in principle at least the

residents of Colchester were not only not morally

obliged by act of parliament, they were not legally

obliged. Not being party to the statute, they could not

be obliged by it. That principle was well applied in a

case heard by the king's council (Star Chamber) in 1474.

The chancellor there reasoned that an alien could not be

subject to a certain statute if it introduced new law

but would be subject if it merely declared old law, the

law of nature, or the like.162 An alien could not be

subject to new law because, as an alien, he had not been

party to its making. He could be subject to old law,

that is, the common law, because subjection to it was a

condition of being in England, much as the law of nature

is a condition of being human.

Once all positive law came to have the status of

new law, it became necessary to recognize in the

legislative a continuous and active power. This new

legislative power, a power unknown to the middle ages,

could lay law upon everyone, whether represented by

proxy or not. It was a power that, if owed formal moral

obligation at all, was owed it upon some principle other

than consent by proxy. Upon what other principle?

Some people sought that formal moral obligation in

the biblical commands of God. The early sixteenth

century did its political theory almost entirely by

quotation from scripture. But the Bible proved at once

so easy to interpret as one wished and so easily

interpreted by others as one did not wish, that by the

end of the century political writers were turning from

those commands of God read in the Bible to those read in

nature. Indeed, the very distinction between the law of

God and the law of nature was disappearing.

Clerical theorists, taking one side or the other in

the disputes between the German emperor and Roman pope,

or between the French pope and the Roman, had long

recognized a governmental contract between sovereign and

people. This contract seems to have been little more

than the theorists' interpretation of the exchange of

feudal oaths at the king's coronation. Working within

civil-law categories, these theorists naturally assumed

the people to be a body rather than a multitude and

treated the governmental contract on analogy with the lex

regis. Though at first that contract seemed to provide

what consent by proxy could not, in time it became

apparent that it could not do that unless there was as

well another legal event, an act (such as social

contract) by which individuals subject to the law had

been incorporated into the civil state (or, at least,

political society).163 The theorists began their work in

the black robes of medieval church controversy but, by

the end of the sixteenth century, had exchanged them for

the powder-burned armor of civil war. They began by

writing tracts and ended by killing kings and

overthrowing governments. Though the discussion of the

right to resist at first concerned only the governmental

contract, in time it came to include the legislative or

political contract as well. The new principle of consent

by legislators early appears in such discussions.

The first statement of the new principle I have

found in English occurs in 1593. The author, Richard

Hooker, is not a political or legal theorist but an

Anglican divine.164 The context, his Laws of Ecclesiastical

Polity, though no mere blast of controversy, was intended

to refute certain claims of English Calvinists

(Presbyterians) trying to "purify" the church of

England. These early Puritans had argued that the law of

God forbad them to conform to certain practices of the

English church. Their proof was scriptural. Hooker's

response is that, though in fact the law of God is

indifferent to the practices in controversy, every

Englishman, Puritan or not, is obliged to accept those

practices because they are the lawful practices of the

English church to which every Englishman belongs. The

proof that the law of God is indifferent to the

practices in controversy—founded both on scripture and

tradition, both on history and reason—takes up most of

the thousand pages of Hooker's Laws published during his

lifetime; the proof of obligation, only twenty-five.

Nevertheless, today those twenty-five pages are by far

the most interesting in the book. To prove a moral

obligation to accept a practice that is indifferent in

itself (and not expressly commanded by God), Hooker had

to consider the question of political obligation. He

offers a general theory of obligation to law not quite

like anything offered before (or since). The crucial

premise of that theory is consent by legislators.

Hooker recognizes "two foundations of public

society"; the one, a natural inclination, whereby all

men desire sociable life and fellowship; the other, an

order expressly or secretly agreed upon touching the

manner of their living together... which we call the law

of a commonweal."165 The first (Aristotle an

"inclination") makes "public society" possible in some

form or other; the second ("an express or secret

agreement") makes a particular form right. That second

agreement is not the mere prudent concourse or moral

harmony of ancient writers (what I called "the moral

contract") but something like a promise, a common

consent having the same power to add to our moral

obligations under the law of nature as would a direct

command of God: "[Impossible] it is that any should have

complete lawful power but by consent of men, or

immediate appointment of God; because not having the

natural superiority of fathers, their power must needs

either be usurped, and then unlawful; or, if lawful,

then granted or consented unto by them over whom they

exercise the same, or else given extraordinarily from

God, unto whom all the world is subject."166 Since Hooker

believes God to have commanded nothing concerning the

power in question, he has in fact appealed to the

principle of consent. He applies that principle not

simply to particular laws but to government as such. Any

form of government may, he thinks, be lawful (according

to the law of nature): "[Some] kind of regiment the law

of nature doth require; yet the kinds thereof being

many, Nature tieth not to any one, but leaveth the

choice as a thing arbitrary."167 But if made without

consent (or direct command of God), "[the government of]

any prince or potentate of what kind soever... is no

better than mere tyranny."168 The "lawful power of making

laws to command whole politic societies of men belongeth

so properly unto the same entire society... [and must

be] derived at the first from their consent."169

Having stated his principle, Hooker must show it to

be relevant to the controversy over "matters

indifferent"; it must be a principle that England's

government satisfies (rather than a mere creature of

theory). Admitting that even in England few men had

expressly consented to the government in person, Hooker

points out that consent "not only they give who

personally declare their assent by voice, sign, or act,

but also when others do it in their names by right

originally at the least derived from them."170 For those

who may wonder if consent can in fact be given "in their

names" (that is, by proxy) as well as in person, he

reminds them of current practices with which they are

familiar and to which they presumably have no objection.

"As in parliaments, councils, and the like assemblies,

although we be not personally ourselves present,

notwithstanding our assent is [there] by reason of

others, agents in our behalf."171 He then generalizes,

without yet explaining how consent is "at the least

originally derived". "In many things assent is given,

they that give it not imagining they do so, because the

manner of their assenting is not apparent."172 He gives

two examples where consent is not apparent, disclosing

what worries him about the principles of consent in

person and by proxy that he expects his reader to take

for granted:

[When] an absolute monarch commandeth his subjectsthat which seemeth good in his own discretion, hathnot his edict the force of a law whether theyapprove or dislike it? Again, that which hath beenreceived long sithence and is by custom nowestablished, we keep as a law which we may nottransgress; yet what consent was ever thereunto

sought or required at our hands?173

Hooker has, of course, confused the question of

lawfulness with the question of political obligation in

a way common among natural-law theorists. He has

supposed that a rule cannot have the force of law if it

is not morally obliging (is not, that is, legal

according to the law of nature). Supposing that, he has

concluded from the undoubted lawfulness of monarchical

edict or customary rule that one must have a moral

obligation to obey such an edict or rule—and, since his

concern was "things indifferent", the obligation must be

formal.

Though in fact a rule may have the force of law and

yet not be morally obliging, Hooker's chief worry stands

above the confusion. Though I have neither consented in

person nor by proxy to a certain monarchical edict or

customary rule, I may (Hooker thinks) nevertheless owe

such an edict or rule formal moral obligation just as if

it were an act of parliament to which I had consented in

person or by proxy. Hooker recognizes that no law (or,

at least, no law of indifferent content), not even

custom, is naturally (morally) obliging; that consent to

law can no longer be treated by analogy with consent to

occasional tax or statute; and that the whole system of

law is now in need of consent given neither in person

nor by proxy (if there is to be political obligation to

more than a few laws). He has stated the problem of

consent in its modern form.

His solution to the problem is, however, not quite

modern. Though he offers a principle of consent by

legislators, he offers it without the (picture) analogy

usually associated with it and with a flaw so obvious

now as to prove him to be writing in the half-light

between old and new. His solution draws on the law of

corporations (assumed to be part of the law of nature).

"[We] do consent," he reasons, "when that society

whereof we are part hath at any time before consented,

without revoking the same after by the like universal

agreement."174 That is plain enough, though it leaves

unexplained that first universal agreement (the

legislative contract) and the method by which we become

a party to it (our individual consent). Having thus

translated the problem without solving it, Hooker

explains in what sense the agreement is "universal",

invoking a new principle of consent. "[As] any man's

deed past is good long as himself continueth; so the act

of a public society of men done five hundred years

sithence standeth as theirs who presently are the same

[society]; because corporations are immortal; we were

then alive in our predecessors and they in their

successors do still live."175 Without further argument,

Hooker concludes, "Laws therefore human, of what kind

soever, are available by consent."176

What is this new principle of consent? I consented

to an act of parliament made five hundred years ago,

says Hooker, if people consented to it then and I am

among their successors (a later member of the same

society). They represented me, made me present "in

them", though I gave no power of attorney and, indeed,

though I did not exist. They did not act in my name, or

with my authorization, and yet they acted for me, and I

am now as obliged by what they did as if I had done it

myself in person or by proxy.

Though it may seem that Hooker has here fallen back

upon that principle of the Hebrew covenant that bound a

chosen people but not individuals as such, he has not.

The actual consent of each individual today is

(according to Hooker) required for that "universal"

agreement by which each individual member of a

jurisdiction is today obliged (until the obligation is

lifted by another such universal agreement). The actual

consent of an individual today is embedded in the

consent of his predecessors, forwarded through time much

as Christians have thought original sin to be. There is

something obviously flawed in the use Hooker makes of

the new principle, but the flaw is not in the principle

itself. The flaw is in the theory of membership with

which it is combined.

Hooker uses the actual consent of an individual to

show that that individual is obliged. If the acts of a

corporation can oblige its members, Hooker argues, the

consent of those having its legislative power at the

time can be the actual consent of every member of the

corporation at any time thereafter. This consent by

persons who have a certain corporate capacity, this

consent by legislators, explains how I can be present

"in" another, how he can act for me, without proxy.

Consent by proxy did not recognize a jurisdiction

as an "immortal corporation". Individuals gave consent

in parliament, but a parliament was no more than the

individuals composing it and (in theory) with no more

power than any other combination of the same

individuals. Except for particular engagements

concerning particular laws, individuals were in a (pre-

legal but not pre-moral) state of nature (the common law

counting as part of the law of nature). A people was

nothing but a gathering of individuals in that (pre-

legal) state. Hooker's consent by legislators recognized

a people as more than the individuals constituting it at

any time. The mere fact that I am one of the people

allows others to represent me (by representing the

people), to consent for me without consenting in my name

(by consenting for the people), and so to oblige me as

if I had consented in person (by obliging me as one of

them). The legislators could not do that for me if we

were not both members of the same political society. We

have powers within political society we cannot have

outside; we can act as a body. If the political contract

allows it, each can act for the whole, doing whatever is

in the power of the society to do.

The flaw in Hooker's argument, that obvious flaw of

which I spoke, is that Hooker has nothing to say about

how one becomes a member of that society. He has nothing

to say about the political contract. He seems to assume

that, because one lives in a jurisdiction having a

political society, one is a member of the political

society, that to have fallen into a body is to have

become a part of it. There is some truth in that

assumption. In some societies, "natural societies", to

fall in is to join. To be born into a family is to

become a member of the family; to be born human is to be

born into human society. In other societies, however, to

fall in is not necessarily to become a part of it. For

example, to walk into the meeting room of a chess club,

to participate in its deliberations, and even to enjoy

its other activities is not necessarily to join the

club. To join one must apply for membership and be

officially accepted. A chess club is an "artificial

society", "free society", or "voluntary society".

Hooker, an Anglican churchman debating others within the

same church, could, in 1593, safely overlook this

difference between natural and artificial societies. His

opponents were no more ready to argue that to be a

Christian in England is not to be a member of the church

of England than to argue that to be born in England is

not to be born an Englishman subject to the common law.

The question of membership in a "public society", in a

"polity civil or ecclesiastical", had yet to be raised

respectably.177 The nonconforming Puritans had yet to

become independent Congregationalists, claiming the

right to choose between joining the church of England

and establishing purified churches of their own.

If Hooker could still safely assume membership in

both civil and ecclesiastical society to be natural

(even though the societies were originally artificial),

those arguing for a formal moral obligation to law a

half century later could not. By then both church and

political society would widely be supposed more like a

chess club than like a family; and consent by

legislators would have to have a thoroughly modern use.

Notes

Chapter 12

Revolutionary Ideas of 1647

On 29 October 1647, eighteen men met at Putney, a

suburb of London, to discuss reform of the English

constitution. That discussion, though it could not have

occurred even a decade before, differs only in detail

from discussions held a century or two later. Indeed,

even today such a discussion might occur, the issues

much changed but the principles not. The eighteen had

all stood with parliament against the king during the

four years of civil war just ended. They were

Congregationalists, not Presbyterians, and in the next

civil war, only months away, would stand with the army

against a cynical alliance of king and parliament. They

would see the army victorious in little more than a

year, parliament purged of Presbyterians, and Charles

tried for treason and executed. They would see the army

try to found a republic in England and fail for lack of

popular support. They would have a part in the first

modern revolution and the first military dictatorship of

modern times. But on that October day the eighteen were

divided into two parties: the Independents, the moderates,

including Lieutenant-General Cromwell (the future

dictator) and his Commissary General Ireton; and the

Levellers, the radicals, including both army men like

Colonel Thomas Rainborough and propagandists from London

like John Wildman.178

Neither party could speak for the country with its

Episcopalian majority, or for parliament with its

majority of Presbyterians. But each hoped to speak for

the new-model army where the majority was

Congregationalist. The religion of these men, though

fierce, was democratic and tolerant. For them, a church

was a voluntary society of those of like religious

conviction, a congregation governed by its own members

and perhaps in agreement with no other. The religion of

their more numerous contemporaries, even when tepid, was

neither democratic nor tolerant. Episcopalian and

Presbyterian, agreeing that there should be but one

church in England, differed on little except whether

those in authority within that church should be bishops

178. For a good general background to this period, seeChristopher Hill, Puritanism and Revolution (Panther Books: London,1969); or Don Herzog, Happy Slaves: A Critique of Consent Theory (Universityof Chicago Press: Chicago, 1989).

or presbyters, how clergy should dress, and what words

they should say (including doctrines they should

profess). The success of the new-model army after the

failures of the old, the outcome of the civil war with

its victory of commoners over lords, and the practices

of their religion seem together to have led the

Congregationalists to conclusions their contemporaries

could not share. The Congregationalists were not only

the vanguard of the revolution, they were the vanguard

as well of the political thought of the next three

centuries. While Episcopalians prayed for the monarchy

if not for the monarch, and Presbyterians sought as

settlement of the civil war no more than a Presbyterian

church within something like the ancient constitution,

Independents and Levellers met at Putney to discuss "An

Agreement of the People".179 The eighteen, a select

committee of the army's general council, were to see if

they could agree to make that document, or something

like it, the army's proposal for a new constitution for

England.

The Agreement, though far briefer than even the

federal constitution of the United States, is otherwise

much like a modern constitution. The Agreement was to be

a fundamental law, enacted not by parliament but by the

people themselves, because (as the Levellers observed in

print a few days later) "[no] act of parliament is or

can be unalterable, and so cannot be sufficient

security... from what another parliament may determine"

and because "parliaments are to receive the extent of

their power, and trust[,] from those that betrust

them."180 The power of parliaments was to be "inferior to

theirs who choose them".181 The Agreement distinguishes

between powers delegated to parliament, "the

Representative of the nation", and powers reserved to

the "represented" themselves. Parliament was to be a

single house of elected "deputies" with full power of

"enacting, altering, and repealing of laws;... erecting

and abolishing of offices and courts; appointing,

removing, and calling to account magistrates, and

officers of all degrees;... making war and peace,...

treating with foreign states;... [and doing whatever

else] is not expressly, or impliedly reserved by the

represented themselves."182 The express reservations, a

bill of "native rights", forbid parliament to interfere

in the "ways of God's worship", conscript men into the

army, exempt anyone from the "ordinary course of legal

proceedings, whereunto others are subjected," or make

unequal laws or laws "evidently destructive to the

safety and well-being of the people".183 Parliament was

to be elected every two years from districts apportioned

"according to the number of the inhabitants".184

The Agreement, like similar constitutions already

in force in New England, differs from a modern

constitution in only two respects. One difference is the

Agreement's lack of the now-traditional checks and

balances, separation of powers, and special votes.

(Almost a decade would pass before James Harrington

published Oceana, inaugurating serious discussion of

such matters.) The other difference between the

Agreement and a modern constitution is that the

Agreement makes no provision for ratification or

amendment. In form, the Agreement is a contract entered

individually by the people of England for the setting up

of a government, a contract no different from the

covenant setting up a congregation. In fact, the

Levellers seem to have thought of it in that way, an

instrument of natural law to take effect when enough

agreed to make a government practical (and thereafter to

be subject to change by agreement among the parties).

Those subscribing before the government was set up would

be "charter members"; those signing up thereafter would

just be ordinary members, with the same rights but less

honor than the original subscribers. To the Levellers at

least, the Agreement seems to have been not a charter of

liberty the people severally (as individual sovereigns)

grant to themselves as a body (a political society) so

much an ordinary contract in which obligation to obey

the law (in the strict sense) is exchanged for

protection of certain rights, including the right to

vote.185

The Agreement, one unadopted proposal among many

offered in 1647, is itself no more than a sample of what

was by then in the minds of practical men. The

discussion of the Agreement, though lively and

thoughtful, is not unusually so. Neither the Agreement

nor the discussion is noteworthy alone. The Agreement is

noteworthy because of the discussion; the discussion,

because, unlike many others upon the same subject, this

one has been preserved. Had not the army secretary

William Clarke recorded the discussion of that October

day, today it would not be possible to learn from a

brief examination of that record what can otherwise be

learned only from close study of the vast pamphletage of

the time.

The discussions of the day were preceded by similar

discussions the day before and would be followed by

others. (The Independents and Levellers, for all they

had in common, found much in the Agreement about which

to disagree.) What distinguishes the discussion of the

29th from the rest is the subject, the extent of the

franchise. The disagreements of the day reveal the new

principle of consent by legislators at once mature and

untried, accepted by all and not well used by any.

Though John Locke was then only fifteen, there is in

this spontaneous dialogue of passionate men passionately

engaged in remaking England all the ideas he would work

into a political creed four decades later. But where his

expression of those ideas would be relatively crisp,

theirs is not; where his would be well worked, theirs is

raw; where his would be edited into a consistent whole,

theirs is like a notebook or rough draft. To listen

carefully to the disagreements of 29 October 1647 is to

hear all the problems that, though they vexed no one

even a decade before, would vex political writers from

that day to this.

Ireton, noticing that seats in parliament were to

be distributed according to the number of inhabitants,

asks whether that distribution meant "every man that is

an inhabitant is to be equally considered, and to have

an equal voice in the election of those representers,

the people that are for the general Representative..."186

The answer is, "[Yes,]... all inhabitants that have not

lost their birthright should have an equal voice in

elections."187 That answer begins a long debate concerned

with the franchise, the rights of men, and the

connection of justice with consent. Though the debate

makes no such distinction, I should like to discuss

separately the relation of consent 1) to the law of

nature, 2) to membership in political society, and 3) to

representation. I shall discuss the first relation in

this chapter and the remaining two in the next,

attending to the use of principle, not to the actual

course of debate; to the reasoning, not to the

conclusions. Though the debate ended with the two

parties still disagreeing about who should have the

franchise, it did not end with any disagreement in

principle. Though the parties began by expressing what

seemed different principles, they ended by agreeing in

principle and disagreeing only in what to make of the

principle. The debate provides something of a checklist

of the major conceptual problems in the new principle of

consent, as well as providing strong evidence that the

principle was securely rooted in the practice of the

time.

Consent is no abstraction at Putney. To consent to

law is simply to vote in the election of lawmakers.

Consent to law is no less consent because the election

may be by majority vote or because the electors will not

themselves have any (direct) part in lawmaking. The

machinery of consent goes unchallenged. There is no

mention of consent in person or by proxy.

The Levellers' defense of an equal voice in

elections for all "who have not lost their birthright"

is a complex appeal to the principle of consent by

legislators: "[The] poorest he that is in England hath a

life to live, as the greatest he," begins Rainborough's

famous response to Ireton, "and therefore truly, sir, I

think it's clear that every man that is to live under a

government ought at first to put himself under that

government; and I do think that the poorest man in

England is not at all bound in a strict sense to the

government he hath not a voice to put himself under."188

The appeal is made complex by three assumptions. First,

the appeal assumes that a government is something a man

puts himself under, not something he merely falls into,

that the civil state is a voluntary rather than natural

society, a society one may attend or join the way a

Congregationalist might attend or join a church he finds

to his liking. Rainborough, aware that men are in fact

born within the jurisdiction of a government

distinguishes between being bound to a government "in a

strict sense" and being bound to it in some weaker sense

(never specified). Second, the appeal assumes that, if

one is to live under a government at all, he ought first

to come under it by consent, that he has a right to that

much of a voice in government. This right belongs even

to the poorest he, coming merely by having a "life to

live" or (as Rainborough would later say) by "God

[giving] men reason". It is a "birthright". Third, the

appeal assumes that, if one does not consent to a

government, the government cannot bind him even in the

weaker sense without doing some injustice; that one is

justly bound to a government if, and only if, one

consents to it ("every man that is to live under a

government ought at first to put himself under that

government"). This last assumption seems to make the

distinction between weak and strong senses of "bound"

pointless. My guess is that everyone present would have

agreed that being bound "in the strict sense" is to be

bound by a political obligation and that being bound in

the weak sense is to be bound in justice (that is, by

consideration of the substance of the law). The law

against murder could bind in justice; a draft law or tax

could not.

The men of Putney take the first assumption for

granted. Though Calvin before, and Hume after, might

object that government is not ordinarily something an

individual has to put himself under to be bound in even

the strictest sense, neither Leveller nor Independent

objected. The independents' objection to the Leveller

defense concerns only the assumption of a natural right

to vote (the second assumption) and the assumption that

government without consent is unjust (the third

assumption). I shall consider objections concerning

natural right here, postponing consideration of

objections concerning government without consent to the

next chapter.

Ireton sees immediately that Rainborough's defense

of an equal voice for all must rely upon a right beyond

positive law. "[If] you make this the rule," he warns,

"you must fly for refuge to an absolute natural right,

you must deny all civil right."189 And what is wrong with

denying all civil right? "[No] person hath a right to an

interest or share in the disposing of the affairs of the

kingdom," Ireton believes, "...that hath not a permanent

fixed interest in this kingdom.... And if we go to take

away this [fundamental part of the civil constitution],

we shall plainly go to take away all property."190 Though

Ireton is, of course, worried about what might happen if

the poor were made a majority of the electorate, his

chief worry here is that, given the Levellers'

understanding of natural right, the poor would have a

right to the property of the rich even against positive

law. "[If] you, against the most fundamental part of the

civil constitution... will plead the law of nature, that

a poor man should (paramount to this, contrary to this)

have a power of choosing those men that shall determine

what shall be law in this state... if this be allowed,

because by the right of nature we are free, we are

equal, we must have as much voice as another, then show

me what step or difference there is why I may not by the

same right take your property..."191

The name "Leveller" was not of the Levellers'

choosing. They received it from those who took them to

be against all distinctions and for an absolute equality

of property (as well as for an absolute equality of

civil and political rights). The debate at Putney shows

their name to be not altogether undeserved. If by the

law of nature all men are equal, then calling upon the

law of nature to decide a dispute about civil right—the

franchise—calls for some explanation of why one cannot

always call upon the law of nature to settle civil right

—and so make all men as equal in the civil state as in

the (pre-legal) state of nature. If the king has no

right in nature to what the (positive) law gives him,

the right to rule, what (natural) right does a rich man

have to what the (positive) law gives him, his property?

That is a hard question. Putting it into modern form,

substituting "government" for "king" and "moral right"

for "right of nature", makes it no easier. If I believe

the government to have no moral right to do what the law

says it has, what moral right can I believe the rich to

have to what the law happens to say is theirs? Indeed,

what moral right do I have to what the law says is mine?

The Levellers' name, if not altogether undeserved,

is still not much deserved. As soon as Ireton challenges

them to show a difference between property and political

rights, Rainborough takes up the challenge. "[To] say

because a man pleads that every man hath a voice by

right of nature, that therefore it destroys by the same

argument all property—this is to forget the law of

God..., Thou shalt not steal."192 Ireton's reply to this is

decisive. "Divine law extends not to particular

things...[If] a man were to demonstrate his right to

property by divine law, it would be very remote. Our

right to property descends from other things, as well as

our right of sending burgesses."193 Rainborough has,

according to Ireton, shown only that no one ought to

take what is mine. The question is, What is mine? The

law of God also says, Honor thy father and mother. That gives

no one a right to honor unless that right comes to him

or her by a particular parenthood. The law of God (or

nature) designates parents. The law of God (or nature)

does not (Ireton supposes) designate propertyholders.

The civil constitution does that. If there were no

rights but natural rights, then what is to keep people

from rightly claiming by natural right what has

descended to me only by civil right? Rainborough has not

yet answered Ireton's question.

The Leveller Petty now suggests that what keeps

people from making such a claim against property is

exactly what gives them the right to claim a share in

the franchise. "Men agreed to come into some form of

government that they might preserve property," he

reasons, making the preservation of property fundamental

without any specification of franchise.194 Is the

franchise then arbitrary? No (Petty argues), the same

men who would found a government to preserve property

would found it with a universal franchise.195 "I would

fain know," he continues,

if we were to begin a government, whether we wouldsay, 'You have not forty shillings a year,therefore you shall not have a voice.' Whereasbefore there was a government every man had avoice, and afterwards, and for this very cause,they did choose representatives, and put themselvesinto forms of government that they may preserveproperty, and therefore it is not to destroy it, togive every man a voice.196

The right to vote is a right every man would reserve to

himself if he were to take part in founding a

government, Petty believes, and so concludes that every

man has in fact reserved the right and so has it still.

This form of argument deserves comment. Petty is

not doing an early version of hypothetical consent

theory. He is doing what any good lawyer would do if

asked to construe a contract. Where a provision is

unclear, the lawyers asks what it is reasonable to

suppose the parties to have intended. The presumption,

absent proof to the contrary (an express provision of

the contract), is that they intended whatever it was

reasonable to intend. Were we in a pre-governmental (and

pre-legal) condition, Petty argues, we would view the

distinction between various kinds of property as

relatively unimportant. The reasonable thing would be to

get everyone we could to agree to a form of government.

If giving them an equal voice in the government were the

price for getting them to support the government, we

would happily give them that voice. Everyone's property,

however large or small, would be safer under a

government than without one.

To this, Ireton replies that the Levellers have yet

to show a sufficient difference between property and

franchise. "[Here] is the rule you go by. You infer this

[right to vote] to be the right of the people, of every

inhabitant, because a man hath such a right in nature...

[and you] are to overthrow the most fundamental

constitution for this."197 Petty has not given sufficient

weight to existing law, the long-standing practices of

the parties that rebut the presumption he draws from

trying to decide what the parties must have agreed to,

all else equal. The question to be asked is not what the

parties would have agreed to, all else equal, but

whether they could have agreed to the franchise as we

now have it. Petty's argument seems to assume that the

actual contract can have only one form. His argument

stands against history, against all historical contract,

and against the idea of a contract as a free act. By the

same reasoning, if men cannot be supposed to have made a

government to make some men rich and themselves poor,

they have still the right to be equal in wealth too.

"Show me," Ireton concludes, "what you will stop at;

wherein you will fence any man in a property by this

rule."198

A right of nature is, it seems, an "absolute

right", a right overriding all other rights with which

it may conflict. It is a part of Cicero's "one true

law". Show me, Ireton repeatedly demands, why there is

no conflict between property rights in nature and

property rights in the civil state. Eventually, Captain

John Clarke suggests that there can be no conflict

between such rights because the rights of property in

the civil state are the same as those in nature.

"[Properties] are," says he, "the foundation of

constitutions, and not constitutions of property. For if

so there were no constitutions, yet the law of nature

does give a principle for every man to have a property

of what he has, or may have, which is not another man's.

This natural right to property is the ground of meum

and teum [in civil law]."199 Clarke does not state that

principle of property; he merely refers each man to the

"light of nature".200 Admitting that disputes may

sometimes arise, he cheerfully concludes that "[if] one

claimant shall oppose the other, then nothing can decide

it but the sword, which is the wrath of God."201 Clarke,

having left claims of property to the light of nature,

has in fact left it, if not to the sword of battle, at

least to the inked sword of (positive) law. He has not

shown anything. Ireton does not even bother to answer

Clarke's light with his own. The field is Ireton's for

now. (What Clarke needed, and did not have, is something

like Locke's theory of property.)

The Levellers are evidently troubled by the

relation between legal and natural right. Not only are

they silent about the rights of the "poorest she", but

they are willing to yield somewhat on the rights of even

the "poorest he". Late in the debate, the Leveller

Captain Rolfe, hoping to find some "medium" between

Rainborough and Ireton, suggests that perhaps it "may be

had in relation to servants as to foreigners, or such

others as shall be agreed upon."202 Under Cromwell's

questioning, the Levellers soon agree that servants and

"he that receives alms" are not to be enfranchised.203

Though they try briefly to make this concession fit

their declared principles, the Levellers do not make it

seem a good fit. Lieutenant-Colonel Reade is of the

opinion "that the choosing of representatives is a

privilege", and so sees "no reason why any man that is a

native ought to be excluded [from] that privilege,

unless from voluntary servitude".204 "Voluntary

servitude" may explain why servants need not be given

their birthright. By becoming a servant, one consents

(it might be said) to be governed by others; by his

master in the house and by his master's representative

outside the house. Though a servant might be surprised

at what he had given up by his employment, the implied

consent supposed by appeal to "voluntary servitude" is

at least consistent with appeal to natural right—

consistent, that is, provided it is admitted (as the

Levellers seem to admit) that the law of nature permits

the granting away of such a right. However that may be,

"voluntary servitude" does not explain why one who takes

alms need not be given his birthright. Poverty is seldom

voluntary. Few men would remain poor if offered decent

work at decent pay. Even fewer would remain poor if

offered riches unconditionally. And, voluntary or not,

begging is not servitude. A beggar works for no one and

begs whom he wishes. Many who gave him alms would deny

that they took his franchise in return. Perhaps what the

Levellers have in mind are the poor resident in the alms

house of a county or town. These would be at least as

"dependent" (as subject to pressure to vote right) as

servants.

Petty, tacitly recognizing the inadequacy of

Reade's appeal to "voluntary servitude", offers a

different explanation, adding apprentices to the list of

those not to be allowed the "privilege" of their

birthright. All those may be excluded, he proposes,

"because they depend upon the will of other men and

should be afraid to displease them."205 If the natural

rights of the very "poorest he" may be withheld because

in the civil state he depends upon the will of another,

why not the rights of a man less poor who also depends

upon another? Why not even the merchant or leaser whose

property, though great, depends upon the continued

goodwill of customers or landholders? Ireton had, after

all, already equated "that interest in the kingdom that

is fixed and permanent" with "that interest upon which

he may have his freedom in this kingdom without

dependence" and declared "the foundation of liberty [to

be]... that those who shall choose the law-makers shall

be men freed from dependence upon others."206

Though the Levellers have talked as if natural

right overrides legal right absolutely, in fact they

must hold another opinion. A civil constitution (they

must hold) may justly withhold the natural right of

some, even of the poorest he, if the consequence of

doing otherwise would be to endanger the rights of all.

"If there is a constitution that the people are not

free," Petty had said earlier, "that constitution should

be annulled."207 Though Petty had said that earlier, he

had not seen what he had committed himself to. Though

not one Leveller spoke against what Petty had said, they

must either deny it or admit that the only difference

between them and Ireton is in what they suppose the

(relatively) poor would do with their franchise. They

all aim at liberty for all, not at the recognition of

particular rights of nature. Though they may prefer an

equality of rights, they are willing to accept

inequality if that will make the people free. The

language of natural right, so far from helping them

express their principles, seems to make their principles

almost inexpressible. They would have found it easier to

say what they wanted about the protection of everyone's

liberty if they had treated the franchise not as a

natural right but as the best means of doing what is

right.

Ireton, though less troubled by the relation

between civil and natural right, is not safe from

trouble. Though he objects to the Levellers' appeal to a

natural right of franchise, he does recognize some

natural rights. His objection to the Levellers is that

they appeal to a right of nature "not of necessity to

sustain nature", "not of necessity for the preserving of

[a man's] nature".208 For Ireton (as for Hobbes), one has

a right of nature only to what is necessary to life.

"Men may justly have by birthright," he early reproved

Rainborough, "... [only] that we should not seclude them

out of England, that we should not refuse them air and

place and grounds, and the freedom of the highways and

other things, to live among us."209 This right of nature

is absolutely overriding even when it conflicts with the

right of property. When the Levellers charge Ireton with

destroying liberty by claiming both property and

franchise to be of human constitution, he answers that,

on the contrary, they destroy liberty by making both a

right of nature:

[If] property be preserved by acknowledging [as youwould] a natural right to possession, so that I amnot to meddle with such a man's estate, his meat,his drink, his apparel, or other goods, then theright of nature [as you make it out] destroysliberty. By the right of nature, I am to havesustenance rather than perish; yet [your] propertydestroys it for a man to have this by right ofnature, even suppose there to be no humanconstitution.210

Natural rights, though they may conflict with a civil

right, cannot conflict with one another. The law of

nature, being no less than God's reason, is perfect and

the rights of nature, being no more than deductions from

that law, must be perfectly consistent. If the Levellers

are right that there is a natural right to property,

then even the starving man can (it seems) have no right

to take the surplus others possess. The ownership of

property is a matter of pedigree, not of need; of

descent, not of merit. If the propertied will not give

the starving man what he needs, he must (if the

Levellers are right about property) die of starvation;

and his liberty, die with him.

Ireton, though he will not grant the poor a right

to vote, grants them a right to all they need to live.

The grant, far from being radical or at least radically

new, is consistent with the excuse of necessity to be

found in both the civil and common law. The starving man

who steals only what he needs to live is not to be

punished. "Necessity", according to the lawyers, "makes

lawful what otherwise is not lawful." Ireton, no doubt

taking necessity to be something exceptional, never

considers what might be made of it if taken as the

fundamental right of nature in a world always in, or in

danger of lapsing back into, necessity. Hobbes' De Cive,

though privately printed in 1642, was not published

until 1647 and was then published only in Latin editions

in Amsterdam. How could Ireton know what a clever

royalist exile might do with that seemingly innocuous

right?

Though Ireton believes property and franchise to be

"of human constitution", he does not believe the

constitution of either to be indifferent or merely

convenient. The destruction of property would be morally

wrong. "If either the thing itself that you press or the

consequence of that you press do destroy property," he

more than once explodes, "though I shall acquiesce in

having no property, yet I cannot give my heart or hand

to it; because it is a thing evil in itself and

scandalous to the world."211 The Levellers, no enemies of

property themselves, never ask how the "destruction of

property" (that is, its equalization by law) can be evil

in itself, and Ireton does not volunteer an answer. Nor

does he ever consider how a law can be evil in itself

without being against the law of nature. Ireton should

have considered that. No conservative himself, he holds

some changes in civil right not to be wrong. He cannot

fall back on simple appeal to what is. Though he thinks

the franchise to be no less "of human constitution" than

property, he is more than willing to change the

franchise. Rainborough, at first supposing otherwise,

mocks him by asking whether the law of nature says that

"a lord shall choose twenty burgesses, and a gentleman

but two, or a poor man none."212 To which Ireton replies

that he agrees that seats in Parliament "should be

distributed equally".213 The question is: Among whom

should the seats be so distributed? Ireton was even

willing to enlarge the electorate. His only concern is

that the enlargement not be "beyond all bounds".214

Ireton does not say why he favors such changes in the

civil constitution. And the Levellers, agreeing with him

in what he is willing to do, never ask by what right he

can favor even such changes. Ireton does not claim a

natural right to the franchise for the propertied. What

he does claim is only that "no person has a right to

this, that has not a permanent fixed interest in the

kingdom."215 He has some explaining to do. The question

remains: If property and franchise are merely creations

of the law, not rights of nature, what makes some

changes in the laws of property or franchise more evil

than others? Are there some rights neither altogether

natural nor altogether creatures of the law? Are these

what make changes in the law good or evil when the law

of nature is indifferent? (In Part Five, I will show how

Locke's second state of nature attempts to answer these

questions.)

Notes

Chapter 13

Civil State, Political Obligation, and

Representation

The principle of consent does not itself assume any

right to consent. The principle only makes consent

necessary (and sufficient) for certain obligations

(political obligations). The question of natural right

to consent is independent of the question of obligation

from consent. Even though the Levellers eventually admit

that certain people may be excluded from the franchise,

they need not admit that those excluded can "in a strict

sense" be bound by the law from the making of which they

have been excluded. Thus, the other assumption to which

objection is made (the assumption that one is justly

bound to law if, but only if, he consents) is at least as

important as the one just considered (the assumption of

a natural right to consent).

Rainborough is not slow to make that importance

clear. Ireton had claimed that even by the law of nature

"no person hath a right to an interest or share in the

disposing of the affairs of the kingdom... that hath not

a permanent fixed interest in this kingdom."216 That

claim, Rainborough observes bitterly, comes to this:

"[If] I have no interest in the kingdom, I must suffer

by all their laws be they right or wrong."217 Ireton's

position is unjust not because it denies a poor man a

voice in government as such, says Rainborough, but

because it denies a poor man a voice in his own

government. If the poor were left out of the law, they

might be left out of the government without injustice.

But since they are to be put into the law, they have a

right merely for their own protection against unjust

law, to be put into the government too. That which

"enslaves the people of England" is, according to

Rainborough, "that they should be bound by laws in which

they have no voice at all".218 Wildman now calls upon the

principle of consent explicitly, declaring the question

is simply, "Whether any person can justly be bound by

law, who doth not give his consent that such persons

shall make laws for him?"219 Ireton's answer is blunt:

"[Yes,] he may and ought to be bound to a law he doth

not give his consent to..."220

Though seemingly rejecting the principle of consent

expressly, Ireton in fact rejects only the view that

such consent must be by voting. His argument against

consent is (something like) Locke's argument from "tacit

consent" (though neither he nor the Levellers ever use

the term "tacit consent" or even "implied contract"):

"If a foreigner comes within this kingdom," Ireton

explains, "...we must not expel him. It is a piece of

hospitality, of humanity, to receive that man among us.

But if that man be received amongst us I think that man

may be very well content to submit himself to the law of

the land."221—This is, of course, not consent in our

sense (the acceptance that makes a contract), but mere

acquiescence.—What is true of foreigners is, Ireton

continues, true of the poor native too. In each case,

there is this crucial reservation, "that if this man do

think himself unsatisfied to be subject to this law, he

may go into another kingdom".222 The poor man, like the

foreigner, has no interest in the kingdom because he is

free to go and take with him all that he has. He may

justly be bound by a government to which he gave no

consent (by voting) because he freely put himself under

it and is free to put himself under another if

unsatisfied with this. (If he were not free to go, would

he then have a fixed interest in the kingdom and so, no

matter how poor, a right to a voice in its government

just as if he owned land? There is no one to ask that

question.)223

Having expressly rejected the principle of consent

in order to make this argument, Ireton calls back some

of what he said. "And yet," he admits, "I do acknowledge

that which you take to be so general a maxim, that in

every kingdom, within every land, the original... power

of making laws... does lie in the people."224 The only

disagreement is about who should count as among the

people. Ireton thinks the poor should not count. For

him, "the people ...[are] those that are possessed of a

permanent interest in the law…; [whoever] is as good in

another land [as in this, has no]... interest in

determining what shall be the law of this land."225

The difference between Ireton and Rainborough,

between Independent and Leveller, is not, as at first it

seemed, the principle of consent. Rainborough's

overstatement of the principle, like Ireton's

understatement of it, merely helps to conceal the

difference by piling apparent differences upon the real

one. Not one of the eighteen, not even Wildman, is

willing to argue that any foreigner is entitled to a

voice in the government simply because he is, if only

for the moment, within the kingdom. The foreigner must,

even according to Wildman, at least first be admitted to

224. Army, 67.

225. Army, 67.

be an inhabitant of the land.226 That a foreigner is

subject to the laws of the land he has entered adds

nothing to his title to a voice in its governance. No

one is willing to deny that. Nor is anyone willing to

deny that a poor man may go elsewhere as easily as a

foreigner (even though, it seems, the king's consent had

always been a precondition of departing the country).

Apparently, Englishmen did not expect their government

to keep them against their will. Many Congregationalists

had in fact quit the Stuarts' England for the Dutch

United Provinces or Puritan New England. The king had

been happy to be rid of them. More curious is that no

one is willing to argue that those with a freehold may

as easily quit the country as a poor man may.

Apparently, vendible land seemed a more permanent

interest than did a lease or bag of coins (perhaps

because it was hard to sell or because its value was

much more sensitive to government policy). The

difference between Leveller and Independent is not in

the relation between interest in the kingdom and a right

to a voice in its government. The difference is only in

what factors, beside ownership of a forty-shilling

freehold (or its equivalent in a town), might count as a

sufficient interest in government.

The Levellers, seeing the difference, answer

Ireton's claims for property with their own for persons:

"It is for the preservation of all the native freeborn

men that they should have an equal voice in

elections...the chief end of the government is to

preserve persons as well as estates, and if any law

shall take hold of my person it is more dear than my

estate."227 A government should be looked upon as a

society for the defense of the native born, both their

property and their persons. To look at it that way is to

see that even the poor have such an interest in the

government as to require a vote. Without a vote, the

poor cannot be safe from the rich. The one-in-six with

property can turn the government to their own advantage,

"make hewers of wood and drawers of water of the other

five, and so [enslave] the greatest part of the

nation."228 Without a vote, even the poor man may find

himself chained in England before he can get to another

country. Every native, propertied or not, therefore has

an interest in government. The interest is the

preservation of his liberty. The foreigner has that

interest only in his native land.

Even if this argument effectively answered those

declining to enfranchise the poor out of a fear that the

great number of the poor would allow them to tax the

rich into poverty, the argument would not prove that the

poor should be enfranchised. In fact, though no one

quite sees it, the argument from interest is irrelevant.

Ireton answers it by repeating his already-often-

repeated claim that the franchise, like property itself,

is "by human institution" and he "cannot give [his]

heart or hand to [changing] it."229 While he no longer

denies the interest of the poor in government, he

continues to deny them the vote. While he sees how they

might benefit from a vote, he sees no reason to give it

to them. The Levellers are exasperated. "If we had not a

right to the kingdom," exclaims Sexby, "we were mere

mercenary soldiers."230 Ireton remains firm, Cromwell

sides with him, and no one puts forward an argument

showing that an interest in government entitles one to a

voice. Why?

No one put forward such an argument because there

can be no such argument within the terms of the debate.

The Levellers' proof that the poor have an interest in

government could not prove the poor have a right to vote

because even Ireton's proof that the rich have a fixed

interest could not prove such a right for the rich.

Interest and right do not go together in that way in the

civil state (as all eighteen conceive the civil state).

The civil state, though voluntary in a way, is not

voluntary in every way a chess club or unestablished

church is. The unspoken analogy between civil state and

religious congregation makes the connection between

interest in civil government and voice in that

government seem stronger than it is. The civil state can

divide interest in government from consent to government

in a way a voluntary society cannot. I am "naturally

free" of the government of a congregation until I

consent to be governed under its covenant, its law, and

it accepts me. I cannot consent (and be admitted)

without coming under its government anymore than I can

come under its government without consenting (and being

admitted). In such a society, I am either a consenting

member or an outsider. My interest in its government

cannot be divided from my consent to be governed. To

prove an interest in such a society is to prove

membership with its rights (which is my interest in it)

just as to prove membership is to prove subjection to

its government.

The same is not true of the civil state. The status

of a foreigner proves that. Because the eighteen agree

that a foreigner is subject to government while he

freely remains within its jurisdiction, they cannot hold

the civil state to be voluntary in exactly the way a

congregation is. The foreigner, though he has not taken

the civil covenant (by, for example, taking an oath of

allegiance) and though he has not been granted all the

rights of a full member in that state, has a clear

interest in its government. While within its

jurisdiction, a foreigner is almost as much at the mercy

of the government as anyone native born. The government

may not be able to seize all his property, but it can

seize him and do what it will. The interest a poor

native has in his government is no greater than the

interest of a foreigner. There is, then, no special

interest merely by birth. The interest of the poor

native, if it differs at all from that of the foreigner,

differs only in lasting longer.

If a foreigner can (justly) be governed without

having a vote, so can anyone else within the

jurisdiction, even a man of property. The interest of

property, no matter how fixed, is no more compelling

than the interest of persons, no matter how fleeting.

Both Independents and Levellers admit that, in the civil

state, consent to government and an interest in

government are separable (though no one explains why).

To prove an interest in the government of such a society

is not to prove full membership with all rights (though

it is to give a reason for admitting someone to

membership). The jurisdiction of the civil state is not

limited to its members. The right of a civil state to

govern seems, then, prior to the consent of its

subjects; the consent of its subjects, rich and poor

alike, unnecessary.

Both Independents and Levellers face a dilemma:

Either the right of the civil state to govern is limited

to those subjects who consent or it is not so limited.

If so limited, the poor and the foreigner (not to

mention women and children) are not justly subject to

civil law until they have a voice in making it. If the

right of the civil state to govern is not limited to

subjects who have consented, there seems to be no reason

why the civil state should ever need anyone's consent to

govern justly; even Ireton's seemingly uncontroversial

maxim that the original power of making laws is in the

people is false.

We seem to have disposed of all forms of social

contract at once. Why then talk about consent at all?

The men of Putney talked about consent because it made

sense to talk about it. They had trouble talking clearly

about consent because they had trouble seeing clearly

the sense it made. The analogy between the civil state

and voluntary society, though not as good as one could

wish, is still a good one. If there is a way in which

the civil state is not voluntary, there is a way in

which it is. Though the civil state can govern someone

without his consent, it can only bind him in a "strict

sense" with his consent. The Levellers assert that from

the beginning, and to the end not even Ireton says

otherwise. What all fail to do is to explain the

difference between binding in the weak sense and binding

in that strict sense. That failure confuses the whole

discussion (and almost all such discussions since).

A voluntary society is usually voluntary in two

ways. Not only can one not enter except by his own

consent, he also cannot consent unless the society first

offers admission. The society is as naturally free of an

outsider as he is of it. To apply for membership, to

need membership, even to swear membership, is not enough

to become a member of a voluntary society. The society

itself must (ordinarily) agree to the admission. In this

respect, political society, that body having a voice in

the affairs of a civil state, may be voluntary even

though the civil state itself is not—and that body may

be bound "in the strict sense" (that is, politically)

even though subjects in general are not.

Both parties at Putney argue as if the poor are

applying for admission to a political society to which

the rich already belong. No one thinks he is in the

(pre-legal or pre-governmental) state of nature.

Everyone admits there is a government already, and

everyone admits that the rich (or, at least, the

propertied) now are alone in having a formal voice in

its affairs. The Levellers, though they argue for a

natural right of admission, never seem to doubt that

they must win over the rich to win admission for the

poor. Though the Levellers can show many good reasons

for the poor to want to enter political society, they

cannot find a reason for the present membership, the

rich, to want them admitted (or even to feel an

obligation to admit them). Though Ireton, a man of

property speaking for the rich, can offer no better

reason for the rich to have a voice in government than

the Levellers can offer on behalf of the poor, he does

not have to offer any better. The rich are already

members. They are the ones being asked to change the

membership. If all Ireton's talk of fixed interest

proved nothing about the right of the rich to a voice in

government, it did prove that the rich did well to get

into political society when they could and that they

have a great interest in staying there. If Ireton cannot

show that the poor have any less interest in government,

it hardly matters. Though the needs of applicants may

carry some weight in decisions about admission, the

needs of the society must count too. The question is, To

what account can political society turn the membership

of the poor? If the society does not need to bind the

poor in a "strict sense", why admit them? Why risk for

nothing having the poor turn the power of government

against the rich? This is the hidden logic of the

argument.

The Levellers' exasperation is comprehensible

enough. They are unpropertied men speaking for the

unpropertied. They are willing to take on the

responsibilities of membership in political society.

They have applied for admission. Self-respecting men,

they see no reason why they should not be admitted. In

the war just ended, they had served political society

well; and now, here they are, talking to members of that

society as equal participants in the political life of

their country. Nevertheless, political society in the

person of Ireton is refusing to admit them. Their

willingness to be bound in the strict sense is treated

as of no account. They are to count for nothing in the

government. The rich, content with what they have, are

content to let political society remain (more or less)

as it is, an elite within civil society. They see no

reason why the sovereign people should not remain a tiny

fraction of the people governed. Though the Levellers

resist this decision of political society, they never

quite deny its right to make it. They do not take

literally their own talk of a right to membership by

birth. Legitimacy is (more or less) independent of

consent.

The distinction between civil state and political

society may seem too sharp. Can a civil state really be

an involuntary society bound by law only in a weak sense

(that is, by material obligations of justice) while

political society is voluntary and bound by law in a

"strict sense" (by political obligation)? Can there be

no indefeasible claim for admission to political society

(no "inalienable right" to a voice in one's government)?

The debate at Putney, though among the first to

knock about such questions, is far from the last. The

succeeding debates resemble this first in certain

striking ways. In 1647, the poor could still be governed

without being bound in a "strict sense". Habit in fact

still did what in theory the common law could no longer

do. The Levellers never achieved much of a following;

and, when they tried to push the Independents further

than they were willing to go, the Independents easily

pushed them aside. The Levellers lacked a live issue,

one to win the sympathy of Independents like Ireton and

to organize the common people for whom they wanted to

speak. For all the grand emotion, their objections to

leaving the poor unenfranchised were primarily

hypothetical injustices, not actual ones. The best

Rainborough could manage in actual injustice is that "in

all presses that go forward [conscription for the army]

none must be pressed that are freehold men."231 The

Levellers do not protest "taxation without

representation"; they do not cry that they are bound to

indifferent laws against their will; and they do not say

that mere exclusion from political society is an

injustice clearing them of all bonds. Indeed, when Sexby

asks what the poor fought for if not for the vote,

Ireton has an answer ready: the liberties all enjoy as

Englishmen and freedom from the danger posed to those

liberties by the attempt Charles made to concentrate all

the power of government (including the legislative) in

his own hands.232 The franchise is only one liberty.233

Though before the "revolution the poor had had no

franchise, yet they had enjoyed those other liberties

[and]" (says Ireton) are more likely to continue in the

enjoyment of them without the franchise than with it.234

The English did not enlarge the franchise at all

until 1832 (and then only as far as Ireton wished). Not

until 1884 was it enlarged as the Levellers proposed. By

then, England had changed considerably. The

unenfranchised classes had grown much richer, had

organized effectively, and had become great powers

outside the government. They had also become much more

subject to statute. They were admitted into political

society just as they became hard to govern outside of

it. Was the question in 1832 and 1884 the same as it had

been in 1647? Or was there, beside the practical change

in relations of power, some more fundamental change

giving the unenfranchised a right they did not have in

1647? The same questions may even be asked about the

enfranchisement of eighteen year-olds in most of the

democracies at the end of the 1960s. The argument "old

enough to fight, old enough to vote" made no more

impression for the first half of the twentieth century

than Rainborough's talk of presses had in the

seventeenth. Though the young allowed themselves to be

conscripted into two world wars, they received the

franchise only after they had organized themselves for

political action and proved hard to govern. Was it force

alone that won them the franchise? Or did they prove

something by proving themselves hard to govern without

their own consent? We might ask the same question about

the enfranchisement of women early in this century, and

the re-enfranchisement of African-Americans in the

states of the Confederacy in the 1960s. The answer in

each case seems to be that, while the franchise must be

earned, what earns it is not good citizenship but bad,

but a bad citizenship high-minded enough to promise that

obedience will follow enfranchisement. Political society

grants the franchise to those whom it must govern and

can govern that way and no other. Generally, political

society extends the franchise for the same reason a

joint-stock company issues more stock, to increase its

resources.

Compared to the discussion of consent, the

discussion of representation at Putney is neither

considerable nor particularly considerate. The

discussion is nevertheless modern down to its

misconceptions. Consent is consent by legislators.

Hooker's representation by predecessors has given place

to representation by elected contemporaries. I am bound

"in a strict sense" by personally voting in a

parliamentary election, bound not only to what those I

elect may do but to all that has been done already and

to all that will be done. By voting I join the immortal

corporation, put myself "under a government", and so am

bound (in the strict sense) to the particular laws in

force. I consent by helping to choose a legislator (and

a legislature). The rationale for legislating by

representative rather than in person remains what it was

centuries before. If Bishop Russell could tell a

fifteenth-century parliament that the commons sent

representatives (instead of coming in person) because

"for their great and confused number and multitude,

nature cannot suffer [them] to assemble in a place apt

to the making of a law", the Leveller Petty can now

declare without opposition that "men chose

representatives when they were in so great numbers that

every man could not give his voice directly."235

Though the rationale for representation remains,

the form has changed. The members of parliament are no

longer described as "attorneys" or "procurators". They

are "deputies" or "representers". Consent is no longer

to be given in parliament but by voting for parliament,

no longer to be given to particular laws but to the

legal system as a whole, and no longer to be given by a

collection of representatives appearing in court but

through a "general Representative". If parliament was

before connected to the represented by many powers of

attorney, now it is to be connected to the people by

likeness. Parliament is to be an "equal representative"

of the whole.

The idea of an equal representative is new. Though

there had always been a preference for proportioning

seats in parliament to the number of electors, there had

been no outcry even against great disproportions. Reform

of apportionment had meant no more than granting seats

to towns recently grown large and taking seats away from

towns long since decayed. Consent by proxy seemed to

require no more. The number electing this or that member

of parliament was no more a subject of controversy than

was the number of clients this proctor or that attorney

represented in a particular case. There was no evident

harm in having one attorney speak for five hundred and

another for fifty thousand. When consent in parliament

had to be by all, disproportions made at most a

difference in the tone of debate.

But long after consent came to be given by majority

vote, those disproportions were still quietly accepted.

The outcry against unequal representation begins only

when the new principle of consent by legislator calls up

a new idea of representation: representation as a

proportion between represented and representative. That

new idea forces both Levellers and Independents to

misconceive the question before them, making agreement

impossible. The eighteen can dispute who should be

represented, but they can hardly imagine anything but a

simple mathematical proportion between represented

(electors) and (elected) representative.

The force of the new idea is evident from the

beginning of the debate. Ireton, hearing that seats are

to be distributed according to the number of

inhabitants, immediately (and correctly) concludes that

every (adult male) inhabitant is to have a vote. He

himself, believing property rather than persons to be

the proper base of representation, can only propose an

apportioning of seats "according to the rates that the

counties bear in the burdens of the kingdom."236 The

moderate Colonel Rich can suggest that "there may be a

more equitable division and distribution than that he

that hath nothing should have an equal voice", but there

is no one to suggest how "there may be a representative

of the poor as well as of the rich."237 Not even Rich

himself can be more specific in his suggestions. The

idea of an "equal representative" forbids it. If the

people are to be represented, they must be represented

by one general representative "as equal as you can make

it."238 The composition of the franchise can be disputed

but there can be only one proper franchise. There can no

more be two houses elected under different franchises

than there can be two peoples in the same land.

Rainborough's only answer to Rich is "we are better as

we are,… [than if] the poor shall choose many and... be

over-voted still."239 Rich's suggestion is dead

thereafter. When the army chaplain Hugh Peter repeats it

later, no one even bothers to notice.240 Two centuries

later John Stuart Mill's proposals for granting the rich

(and educated) more votes than the poor (and ignorant)

would receive much the same response.241

Though all participants in the discussion want a

legislature to protect both property and persons, both

rich and poor, none can think how to tinker with the

machinery of representation to make it do what they

wish. Representation seems necessarily a matter of

proportion between the great body of the people and the

little body of parliament. If the protection that all

want cannot be had from an equal representation, it

cannot (it seems to them) be had from representation at

all. They never even consider the possibility, for

example, of a two-house legislature, with the upper

apportioned by wealth and the lower by population.

An idea is most tyrannical when new. But even now

many see equal apportionment ("one man, one vote") not

as a mere device but as a conceptual imperative. Unequal

apportionment is malapportionment; and a malapportioned

assembly, unrepresentative—by definition. Even the good

record of such an assembly will not preserve it from the

charge of unrepresentativeness. Hanna Pitkin

demonstrates the continuing force of that tyranny in her

Concept of Representation. There she quotes many of our

contemporaries still held in the tyrant's prison and

works out with great sensitivity the misconceptions that

keep them there. The question remains today what it was

in 1647: If representation is not necessarily a matter

of proportion, what is the connection between

representation and proportion? What has apportionment to

do with the principle of consent by legislators? Even

Pitkin, that most careful writer on representation, does

not think to ask such questions and so has nothing to

say in answer. Luckily, we need not answer such

questions here. We need only note how they demonstrate

the continuity between the ideas of 1647 and today, the

enduring presence of consent by legislator (once it was

invented).

Notes

PART FOUR: Contract Theory before Hobbes

We have seen that the principle of the contract ofgovernment was implicit in the political structureof medieval Europe, but that it was not as yetinterpreted as an act that was supposed to havetaken place in the distant past, before any stateexisted.... As long as the medieval, essentiallyjuristic, conception of government as the offspringrather than the parent of law remained true tolife, it [the contract of government] could not becalled unhistorical, or abstract, or self-contradictory.—J. W. Gough, Social Contract, p. 36

Thomas Hobbes is perhaps the best political

theorist of modern times. Certainly he was in his own

day the best since Aristotle. Even Thomas Aquinas,

Hobbes' superior in philosophy generally, wrote nothing

to compare with De Cive or Leviathan. Hobbes is, however,

not the first political theorist of modern times. De Cive,

though excelling its predecessors, is still only one

among many in a long line. Leviathan, for all its

greatness, is not alone in the sea. Theorists had been

at work on Hobbes' question for over a century before he

took it up. The history of the question stretches back

into the middle ages, into debates having little to do

with political society, and theoretical work having only

a diffuse relation with Hobbes' question. The

intelligence exhibited by Hobbes' contemporaries at

Putney would be hard to imagine had Hobbes been the

first modern political theorist. What distinguishes

Hobbes from earlier theorists, what makes his work seem

the beginning of modern political theory, is neither a

new question (since the question is not new) nor a

startling answer (though his answer is startling). What

distinguishes him is a new method (the method he learned

from Descartes). The history of his question should not,

for that reason, be overlooked. That history, while not

affecting the truth of his answer, does affect our

understanding of it. The history puts it in a context

making it at once more startling and less appealing.

Before looking at Hobbes' work in Part Five, we should

look into its background, asking, "What was the question

put to him? And what were the resources given him to

answer it?"

Chapter 14

The Question

Hobbes' question concerns the relation of

government to subjects. His question was already under

discussion during the middle ages, though it was not

then the chief question. Medieval practice explains the

question's subordination just as modern practice

explains its later preeminence. The chief question of

medieval political theory was, What is the relation of pope to

emperor (and Christian kings)? The great political

controversies of the middle ages—investiture,

jurisdiction of canon courts, deposition of kings,

counciliarism—posed that question. The (Roman) civil

law had no terms in which to answer satisfactorily.

Medieval theorists, having only the language of

Justinian, searched in vain for a formula expressing in

terms of the single, absolute sovereignty of civil law

the limited and divided government they had before their

eyes.242

The Protestant reformation at first demoted the

medieval question by officially breaking the already

weakened power of the pope, later transformed it into

the question of relations between church and state, and

eventually gave a partial answer in terms of separation

of church from state, supremacy of the state, and free

practice of religion. The answer was only partial

because, while locating sovereignty somewhere within the

state, the answer did not improve upon Justinian's

formulation of sovereign power. Sovereignty remained in

theory indivisible and illimitable: No matter what

practice seemed to be, in theory the church had no legal

rights against the state (if subject to the state at

all); the government, on the other hand, had unlimited

power over the members of the church individually and

over the church as an organization within its

jurisdiction. The question of the relation of pope to

emperor thus became a question of the relation of king

(government) to subjects. Medieval theory had a

satisfactory answer for that subordinate question. To

the king, theory said, "Be a prince, not a tyrant"; to

subjects, "Princes are to be obeyed; tyrants, resisted".

The answer was satisfactory both for medieval

theorists and for practical men. The answer was

satisfactory because "tyrant" was well-defined and

resistance manageable within the civil state. People

knew their rights, and the king had no monopoly of

force, seldom even a preponderance. Modern political

theory dates from the moment "tyrant" lost its

definition and resistance came to seem outside the civil

state.

"Tyrant" is the crucial term in the medieval answer

to the king. John of Salisbury, drawing on ancient

writers, first gave the term its medieval definition.

"[A] tyrant," he wrote in the Policraticus, "…is one who

oppresses the people by rulership based on force, while

he who rules in accordance with the law is a prince."243

A king is a prince if, and only if, he rules according

to law. Beyond the law there is only force and

tyranny.244 The definition, given in 1159 (while John was

working for Thomas of Becket, then Chancellor of

England), was still standard in 1600, though by then

equivocal. Its durability depended on the relation of

king to law. The medieval relation was simple. There was

no need to distinguish between law of nature, common

law, custom, and statute; no need to contrast the "one

true law" with the "civil law". Law, because it could

not be made, was all law of nature more or less. The

king, because he could not make law, stood in the same

relation to one kind of law as to another. He was under

the law, whatever kind it was. Nor could he get out from

under a particular law by claiming to be the ultimate

earthly judge of what is and is not law. He could not

because in practice his magnates would not recognize his

claim and in theory the pope already claimed that

judgeship. The medieval king was only a chief

magistrate. Neither in practice nor in theory was there

any impediment to holding him to the law. Neither he nor

his state was sovereign.

The medieval relation between king and law was not

(as was the relation of pope and law) theoretically

interesting. To be a prince, a king needed to know the

law, to know how to follow it, and to know why he ought

to follow it. Medieval works on kingship therefore

consist of descriptions of the law, advice on its

administration, and sermons concerning the consequences

of tyranny. The Policraticus is such a work (though it is

more than that). So too is John Fortescue's On the Merits of

the Laws of England (1471). And, while as much a parody as

an example, so too is Niccolo Machiavelli's Prince

(1513). The Prince, however, is a transitional work. Its

purpose is the traditional one of teaching the king to

be a prince. What distinguishes Machiavelli's little

book from its pre-modern counterparts is that, while

being a prince is still merely knowing the law and

acting in accordance with that knowledge, the law is no

longer the law of nature but the natural laws of

politics. For Machiavelli, the king is not so much above

the law of nature or the common law of his country as

indifferent to it, except insofar as consistent with the

intelligent use of (descriptive) natural laws.

Machiavelli distinguishes between new and old

monarchies, between wise and foolish kings, and even

between cruel and kind princes. But he does not

distinguish between prince and tyrant; his moral

neutrality does not allow it. The Prince is not,

therefore, the first work of modern political theory,

only an early work of political science. The Prince has

nothing to say about the law of nature, justice, moral

right, or the like. Modern political theory begins when

the civil state takes over from the pope the claim of

ultimate judgeship in such matters. That claim, not mere

moral neutrality, is (as we shall see) what causes

"tyrant" to lose definition.

The medieval answer to subjects, unlike the

medieval answer to kings, is far from simple. The term

"resisted" forces distinctions "tyrant" does not. An

answer has to specify what may be resisted, when it may

be resisted, who may resist, and how he may resist.

Only the why of resistance, that it is resisting

tyranny, is simple. Medieval theorists gave a good deal

of care to such distinctions. The result of that care

may be thought of as an almost infinitely graded range

of answers. The minimum answer is that one may resist

the particular command of a tyrant only when one cannot

obey without thereby disobeying God. The resistance can

be only by passively obeying God's law, that is, only by an

inescapable failing to obey the tyrant's command, only a

passive or civil disobedience. There is no (independent)

right to disobey even a tyrant's command, only a duty to

obey God. Medieval theorists never fell below that

minimum. Church tradition forbad it. Though all power

was from God, where the choice was between God and the

man he gave power, the Christian had always chosen God.

Give to Caesar what is Caesar's; to God, what is God's.

Better martyrdom than damnation. The interesting

medieval theory began once the minimum answer had been

given and a theorist considered what more might be

justified. The maximum answer, approached but (as far as

I know) never reached, would be that any tyrannical act

may be resisted by anyone, whether directly concerned or

mere bystander, by any means necessary. The maximum

would permit not only "passive obedience" but active

resistance, armed intervention, and even tyrannicide.

There is a good deal that bothers medieval writers

about the maximum: whether one can justly kill a tyrant

if one is bound to him by oath of fealty or if he is a

priest; whether any king would be safe if any private

person could judge him the way he judges private

persons; whether only the most severe lawbreaking

deserves active resistance; and so on. The maximum

answer had its ancient sources, in Greek and Roman

practice, in Greek and Roman theory, and in the Old

Testament. But medieval practice, rather than ancient

example, probably explains medieval willingness to go

beyond the minimum. King John of England was, after all,

neither the first nor the last medieval king to be made

to obey the law. Nor was England's Richard II the only

one to be deposed for tyranny. Nor was Richard III the

only one killed by his own subjects. Such acts against

kings did not shake medieval Europe the way the

execution of England's Charles I or France's Louis XVI

would shake modern Europe a few centuries later. It is

one thing to kill the chief magistrate for violating the

law; another, to kill the sovereign, the source of law,

for crimes beyond the law.

The minimum answer—meek, long-suffering, dutiful

to God, indifferent to the life of this world—is a

devout cleric's answer to tyranny, the answer of a

Christian pilgrim passing through this world on his way

to the next, not at all what would suit a sword-carrying

lord with a private army. Beyond the minimum answer is

pride, indignation, known right, and the habit of

getting justice one way or another. The right to resist

was in the law of the land all over most of Europe and,

for medieval theory, the problem was to find it in

Christianity. Medieval theory proved useful later

because finding that right in Christianity meant finding

it outside positive law.245

Notes

Chapter 15

The Reformation, Religious Wars, and Modern

Theory

Modern theory may, with some inexactness, be dated

from 1517, the year Martin Luther is supposed to have

nailed his ninety-five theses to the door of the court

church at Wittenberg, beginning the Protestant

reformation. The reformation is at once a doctrine, a

spirit, and a movement. As doctrine, the reformation is

salvation by grace, not works, salvation as a gift of

God, not a gift of the church. As spirit, it is an

appeal from public authority to individual conscience,

from tradition to origins, from historical fact to

eternal principle. As movement, it is the collapse of

medieval practice. The reformation takes from the pope

all power to command, since he cannot command

conscience; pushes aside the hierarchical church, since

the church was not so organized in the beginning; and

gives to each civil state the right to decide for itself

all disputes arising between members, since it leaves no

one outside with any right to intercede.246

The reformation as such is only religious. As

doctrine, it is indifferent to political forms.

Salvation is not a matter of politics. The reformation

does not say who within a civil state should decide this

or that question of "externals", how the decision should

be made, or even what should be decided. As spirit, the

reformation says only that the decision cannot be left

to the old law of the land. That law is mere authority,

tradition, historical fact. As movement, the reformation

is simply destructive. Seeming to leave all questions to

conscience, it leaves the civil state nowhere. The

reformation does not so much erect the individual as the

supreme authority as tear down all authority above

individuals. The reformation simply put questions: If

individual conscience is not to decide all questions,

who will decide? The king? The people? Others? Which

questions? And by what right? Modern political theory

germinates under the debris of reformation.

"Debris" is the right word. Ulrich Zwingli began

246. I take this to be a standard view of the reformation, butthe chapters following will provide evidence for it. For a goodgeneral discussion of political theory during this period, seeQuentin Skinner, The Foundations of Modern Political Thought, Volume Two: TheAge of Reformation (Cambridge University Press: Cambridge, 1978).

reform in Switzerland a year after Luther began it in

Germany. England began its own reforms in 1534 (as I

explained earlier). In 1536, the Frenchman John Calvin

published his Institutes of the Christian Religion and in 1541

accepted leadership of reform in Geneva. The religious

wars began a few years later: in Germany in 1546 (ending

in 1648); in Scotland in 1557 (merging into those of

England after 1603); in France in 1562 (ending in 1598);

in the Netherlands in 1568 (ending in fact in 1609 and

by treaty in 1648). These wars, at once civil and

international, at once religious and political, were

perhaps the most brutal in European history. The sides

differed from country to country. In Germany, the war

was between Protestant princes and Catholic emperor

(allied with Catholic princes); in Scotland, at first

between Protestant subjects and a Catholic government

and then between Calvinist subjects and Episcopalian

king; in France, between the king, Catholic subjects,

and Protestant subjects; and in the Netherlands, between

a (predominately) Protestant colony and a foreign

Catholic government. The settlement differed as much

from country to country as did the sides. In Germany,

the wars ended with stalemate, a Germany divided by

religion of prince and no longer one country except in

name. In Scotland, the wars ended with a half-reformed

church and a disputatious king unclear about the extent

of his power; in France, with a Catholic church and an

absolute monarch; in the Netherlands, with independence

from Spain and a religiously tolerant republic. The

English civil wars (1642-1648) are only the last of the

religious wars, the mildest, and the most fruitful; the

settlement of 1689, the last and most enduring of

Europe's religious settlements. Just as in England, so

earlier in most of western Europe, the reformation,

whether successful or not, gave to the civil government

the choice of its people's religion and to political

theory the work of understanding how that could be.247

Notes