2. The Rights of Man and Government by Consent.
The doctrine of the social contract, fashionable among
political theorists in the late sixteenth and the seven-
teenth centuries and surviving into the eighteenth, was
first used to support the claims of religious minorities,
or of churches and sects anxious to assert their inde-
pendence of the civil power. Huguenots and Jesuits
both used it for this purpose. But the doctrine has
egalitarian and libertarian implications that came
eventually to seem more important than the first uses
to which it was put. For it postulates an individual
with rights and wants prior to the setting up of gov-
ernment whose proper business is to protect the rights
and supply the wants. The state of nature, as the con-
tract theorist imagines it, though it is not really pre-
social—for natural man lives in families, is capable of
speech, uses tools, and cultivates the soil—is a condi-
tion of rough equality. Great inequalities arise only
with the rise of government; and yet the social rules
that government is established to enforce are in every-
one's interest.
These implications of the idea of a social contract
were first clearly drawn by Hobbes. For he, though
he was no liberal, was an “individualist” in the sense
that he built up his political philosophy on claims and
needs that he ascribed to everyone and to which he
appealed to demonstrate both the utility and the legit-
imacy of government. In this sense, at least, he was
more markedly an individualist than were the Jesuit
and Huguenot contract theorists, though he argued, as
they did not, that only a ruler with unlimited authority
can provide his subjects with the security they want.
Hobbes and Locke were both individualists in their
assumptions and in the manner of their argument; they
both argued to political conclusions from assumptions
about needs and rights that everyone has. But Locke's
conclusions, unlike Hobbes's and more clearly than any
earlier thinker's, were liberal. Just as his Letter Con-
cerning Toleration simplifies and draws together several
arguments for religious freedom, and so adds to their
persuasive power, so his Second Treatise of Civil Gov-
ernment (1690) brings together, and in so doing
strengthens and clarifies, several arguments for limited
government. Government exists to protect the life,
liberty, and property of its subjects, whose obligation
to obey it lasts only as long as it protects them ade-
quately and does not abuse its powers; and subjects
may take action to ensure that they get this protection
and to put an end to abuses of power.
This principle is important but needs to be qualified.
Before we can act upon it, we must raise and answer
several questions. Men may differ as to whether or not
basic rights are adequately protected. If they do, who
is to judge between them? Again, rights may be in-
vaded either by private persons or by the government
and its agents. In the first case, a subject who appeals
to the government for protection or redress, may find
that it fails him for one or both of two reasons: because
it lacks the power to do what he asks, or because it
decides that no right of his has been invaded. This last
decision, the subject may question either because he
has in general no faith in the impartiality of the body
or person that took it, or because he believes that this
particular decision was wrong. He is ordinarily more
willing to “accept” what he thinks is a wrong decision
when the persons who take it seem to him impartial
and their procedure fair than when they seem partial
and unfair. Political power, according to Locke, is not
legitimate unless those who exercise it do so with the
consent of their subjects, who may take action to pre-
vent abuses of power. Unfortunately, he failed to ex-
plain how we can know whether or not rulers have
the consent of their subjects, or how we can decide
whether or not there has been an abuse of power. If
it is for subjects to decide, how can we know whether
or not they have done so?
Locke did not see in the right of resistance the only
safeguard against a government's being oppressive or
its failing to protect basic rights. He wanted a separa-
tion of the executive and legislative powers, and a
partly elected legislature. Yet he had little to say either
about the distribution of authority within the govern-
ment or about methods of ensuring that governments
are responsible to their subjects. But he did raise tenta-
tively (though without going far towards answering
them) three questions of capital importance to the
liberal: How should authority be distributed and its
exercise regulated for the better protection of essential
rights? How can it be contrived that authority is exer-
cised in ways acceptable to those subject to it? When
are subjects justified in resorting to illegal means to
resist or get rid of their rulers?
Montesquieu went further than Locke towards an-
swering the first of these questions. He not only ex-
plained, as Locke had not done, why it is expedient
to separate the judicial from the executive and legisla-
tive powers; he also, in the twelfth book of The Spirit
of the Laws (De l'esprit des lois, 1748; English trans.,
1750), discussed in some detail what he called “the laws
forming political liberty in relation to the subject.”
These are the laws and practices ensuring that no one
is punished except for breaking the law, that accused
persons get a fair trial, that the citizen can assert his
rights effectively both against other citizens and against
public officials.
With the second question Montesquieu dealt more
perfunctorily. He took it for granted that authority
exercised in customary ways is acceptable to those
subject to it because they believe it is exercised to
protect their rights and to meet their needs. On this
point Burke and Hume agreed with him. Neither he
nor they took much account of the fact that people's
ideas about their needs and their rights change. They
did not enquire how it could be contrived that forms
of government can be changed legally and peacefully
to ensure that rulers are more willing and better able
to meet the changing requirements of their subjects.
Yet Montesquieu, in dealing with this second ques-
tion, was more specific than Locke on three points.
Though he too thought it desirable that part of the
legislature should be elected, he excluded from the vote
persons “in so mean a situation as to be deemed to
have no will of their own.” He denied that constituents
ought to give specific instructions to their repre-
sentatives. And, lastly, he held that the kind of limited
and partly representative government which alone can
be trusted to respect rights scrupulously is not suited
to most peoples. It may well be that Locke, if he had
been asked his opinion, would have agreed with Mon-
tesquieu on all three points. Yet Montesquieu is explicit
where Locke is silent. Though Locke was no more a
democrat than he was, the doctrine that democracy
is dangerous to liberty is his rather than Locke's, as
is also the doctrine that liberty is confined to some
peoples. Montesquieu had more to say than Locke had
about the conditions, social and otherwise, of political
competence, and was therefore more obviously un-
democratic. Democracy had long been attacked on the
ground that it was likely to be unjust to the rich and
the privileged. Montesquieu objected to it on this
ground also, but it is in his writings that we find the
confused beginnings of a new objection to it—that it
destroys liberty.
To the third question: When are subjects justified
in acting illegally to resist or get rid of their rulers?,
Montesquieu had nothing to say. He was silent where
Locke was bold.
It was not till the latter part of the eighteenth cen-
tury that political writers had much to say about three
rights which since that time have been subjects of
continual controversy: the right to vote at free elec-
tions, the right to form associations to promote shared
purposes and beliefs of all kinds, and freedom of the
press. In the seventeenth century the supremely im-
portant beliefs were religious, and so argument turned
on the right to hold and publish religious beliefs and
on the right to associate for religious purposes. In the
next century other beliefs and association for other
purposes came to seem no less important.
In the eighteenth century, before the French revolu-
tion and the first shots in the long campaign for parlia-
mentary reform in England, there was more concern
for freedom of the press than for freedom of association
and the right to vote. This was the freedom that
Voltaire and other philosophers of his time cared most
about. The educated classes to whom they addressed
their books could meet easily enough for most purposes
important to them, and had not yet learned to form
associations to put pressure on governments. Freedom
of association for other than religious purposes mat-
tered more in Britain, where there was already a partly
elected national legislature, than in countries like
France, though even in Britain it was not widely and
strongly upheld until the demand arose for extending
the franchise. Where concern for freedom is confined
to aristocratic and intellectual circles, the freedom
most prized, after freedom of person and property, is
apt to be freedom of discussion and of the press. Free-
dom of association and the right to vote come to seem
important when leaders arise who have or aspire to
have a large following. Such leaders want to “polit-
icize” the people, or some broad section of them, to
draw them into political activities, into organized
bodies making demands on government. Even a “re-
cluse” like Jeremy Bentham came to care greatly for
freedom of association and extending the franchise, as
experience taught him that no government would take
the advice he gave unless popular pressure was brought
to bear on it.
Freedom of association can be greatly prized where
there is neither democracy nor a widespread demand
for it. It was prized, for example, by French liberals
during the Restoration and the July Monarchy, even
though most of them wanted only a narrow electorate,
just as it was in Britain in the first part of the nineteenth
century by Utilitarians and other reformers who
wanted only a modest extension of the franchise. Free-
dom of association is prized above all where there is
an electorate to be mobilized for political purposes,
and the right to vote where there is hope of creating
or extending such an electorate.
The Jacobin Terror and the popular tyranny of
Bonaparte between them produced a kind of liberalism
hostile to democracy. Locke and Montesquieu are to
be reckoned liberals “before the letter,” for it was only
later that champions of doctrines similar to theirs were
called liberals, but they were neither democrats nor
declared enemies of democracy. They never argued
that its coming would destroy the liberties they valued
most, nor did they, as Benjamin Constant did, fear
democracy (see his two important works: De l'esprit
de conquête... [1814], and Principes de politique
applicables à tous les gouvernements [1815]).
Edmund Burke, of course, was an unrelenting enemy
of democracy, who denounced it bitterly several years
before the Jacobin Terror. He was, in his peculiar way,
a champion of freedom. His concern for it was genuine
enough, though different from that of Constant. For
Constant, as he set about explaining what he thought
were the essential liberties, pointed to the institutions
and procedures needed to make them actual. Remem-
bering vividly both Robespierre and Bonaparte, he
abhorred radical demagogues and popular dictators as
exploiters and perverters of the principles they pro-
fessed. Rulers, he thought, will not respect liberty
unless they are responsible only to those among their
subjects who care about it and understand how it is
secured, the educated and the propertied classes. The
attempt to make them responsible to the whole people
brings influence and power to irresponsible leaders,
who destroy the liberties they pretend to secure to all,
and brings with it a new kind of absolute rule more
intrusive and oppressive than that of the dispossessed
kings.
Anti-democratic liberalism, especially on the Euro-
pean Continent, took the form of attacks on the doc-
trines of Rousseau, attacks that misinterpret what they
condemn. Rousseau proclaimed the sovereignty of the
people, having in mind not representative assemblies
elected by universal suffrage, but political communities
small enough for all adult men (but not women) to
come together to make laws and major decisions of
policy. To secure the popular assembly against pres-
sures from groups pushing their interests to the detri-
ment of others, he said that these groups ought not
to be organized for political purposes. But these two
doctrines of his—that the people are sovereign and that
there must be no organized bodies to influence their
decisions—when they were applied later to a country
the size of France, where the people could not make
law directly but only through their representatives,
came to have implications undreamt of by him. To say
with Rousseau that what the people in sovereign as-
sembly decide must not be predetermined or chal-
lenged by lesser bodies, though it may be challenged
and reversed in the assembly itself, is one thing; to
make, as some of his disciples did, the same claim on
behalf of a popularly elected representative assembly
is quite another.
Rousseau, misrepresented by both admirers and
critics, has served above all as a source of quotations
for radicals to use in their attacks on liberal opponents.
Respect for the constitutional forms and rights of the
individual dear to the liberals has seemed to them an
obstacle in the way of reforms urgently needed for the
benefit of the poor. The poor, the socially weak, if they
are to gain strength, need solidarity; they must organize
themselves and be loyal to the organizations they form.
This solidarity, or the appearance of it, is sometimes
hard to achieve or preserve where the rights of minor-
ities and of lone rebels are respected.
Democracy has been attacked on the ground that
it threatens the rights of property of the well-to-do,
and also on the ground that it threatens liberties that
all men should have. Often, the attacker has attacked
it on both these grounds without noticing that they
differ, though one is as old as Aristotle and the other
is modern. As soon as the difference is brought home
to us, we are compelled to put questions that Locke
and Montesquieu never put: How far must rights of
property (from which in practice the rich benefit more
than the poor do) be curtailed so that everyone may
have certain rights and opportunities, the ones dignified
by the name of freedom? How far does the attempt
to ensure that everyone has them change their nature?
And, lastly, how far is the attempt to make everyone
free self-defeating, taking away with one hand what
it gives with the other? These three questions, seldom
if ever put in the eighteenth century, have been more
widely raised in the nineteenth and twentieth. We can
see how they arise as soon as we consider critically
the dislike of democracy of such an impeccably liberal
thinker as Constant.
These questions have seldom been discussed rigor
ously and realistically. Hence the looseness and the
ambiguity of much of the debate between liberals, who
fear the growing power of the state and other large
organizations, and Marxists and other socialists who
attack “bourgeois liberalism” and yet claim to be
“emancipators” of the exploited and oppressed classes.
As we shall see later, liberals and Marxists have ideas
about freedom that are much more alike than they
appear to be on the surface, in spite of the bitterness
of the quarrel between them.
Already in the eighteenth century, the notion of a
social contract was rejected as unhistorical and un-
necessary. First Hume and then Bentham argued that
there is no need, if we want to show that men have
interests, and therefore also claims or rights, that gov-
ernments ought to promote or secure, to postulate a
deliberate setting up of government to achieve these
purposes. Even the ideas of natural law and natural
right, as they had long been used, were rejected by
Hume and Bentham. If there are rules, rights, and
obligations common to all men everywhere, this is only
because their wants and conditions are everywhere in
important respects the same, so that everywhere expe-
rience teaches them that there are rules which it is
everyone's interest should be generally observed,
claims that everyone makes, and duties from which
no one is exempt.
Yet the earlier critics of natural law and the social
contract were closer to the writers they criticized than
they thought they were. They too took it for granted
that there are interests and claims common to all men
everywhere, which they have even in the absence of
government, and whose protection is the proper busi-
ness of government. For them, too, political authority
arises to enforce claims and obligations that are prior
to it in the sense that they can be defined without
reference to social conditions created by it or arising
along with it.
Actually, the contract theorists did not, any more
than their early critics, conceive of the condition of
man before the emergence of civil government as an
unsocial condition—though it has often been said that
they did. They differed from these critics, not in think-
ing of the state of nature as an unsocial state (for they
recognized that men in that state lived in families),
but in making a sharper distinction between the human
condition before the setting up of government and after
it. Nor did they, as Hume did, point to the social origins
of the rules and the rights that they thought common
to mankind. Yet Hume and Bentham were like them
in treating not only political but all social institutions
as arising to serve conscious needs that could be defined
without reference to them. For Hume, though he said
that the rules common to men everywhere arise out
of a social experience that is everywhere in some re-
spects the same, took little interest in the effects of
social institutions on men's needs and ideas. If it had
been put to him that distinctively human needs, those
not shared by man with the other animals, are essenti-
ally social, having no meaning outside a social context,
he might well have agreed. But this idea, though con-
sistent with his account of the origins of justice, is
nowhere made explicitly in his social and political
theory, and affects it hardly at all.
