On Consent Beginning from a Free and Equal Condition

The assertion in Article 1 of the Universal Declaration of Human Rights that “All human beings are born free and equal in dignity and rights” still sounds radical when applied to undocumented immigrants and members of small sexual minorities. To back up this assertion, it is hard to do better than John Locke in section 4 of the “Introduction” to his 2d Treatise on Government: “On Civil Government”:

To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.

When I read this, I see an image of two human beings meeting in the middle of a trackless wilderness. They may have come from civilized territories, but that is all far away. One might be bigger and stronger than the other, and so able to take advantage of the other, but there is no good and just reason why one should rule over the other. They both deserve to be free and equal in relation to each other.

Writing when he did, it is not surprising that John Locke refers to God, but he suggests a very high burden of proof if someone claims that God has put one human being above another.

John Locke’s picture of people starting out free and equal, without any hierarchy, as we typically think of our literal neighbors next door, is very powerful. Thinking about the morality that applies between neighbors from this angle has generated some of the most persuasive Libertarian writing. I am thinking particular of Michael Huemer’s book The Problem of Political Authority: An Examination of the Right to Coerce and the Duty to Obey. My reading of that book generated several posts:

I have thought that the starting point of being free and equal doesn’t absolutely have to point to a minimalist state. In particular, if someone would freely choose to belong to a state rather than stay in a separate, free and equal condition, then the state may be just. But there are some important considerations.

First, human beings are social creatures. It is not fair to imagine someone’s “free and equal” alternative as being alone. Rather, imagine the “free and equal” alternative as being in a highly social group of a few friends and family. Unless a state is better than that, it is not just.

Second while the provision of the basic justice of safety and protection from violence may be enough to justify the requiring a contribution to the resources necessary to provide that safety and protection if the individual would choose that protection over the state of nature even at the cost of the taxation, it seems unfair to use the surplus from the provision of protection at that cost to justify a government that goes beyond that protection. That is, think of two steps: a government that provide basic physical protection and justice at some cost. This is just getting people up to their basic rights–at a cost that someone has to bear. Then a government that goes beyond that had better provide surplus from the things that go beyond the basic provision of justice.

Let me give an example. A government might provide a commercial code and roads to make it easier to carry on commerce. If someone who doesn’t have to worry about basic security because of the minimal justice activities of a state, who was allowed to stop with those basic security benefits would still choose to join a state with that state that provided a commercial code and roads to make it easier to carry on commerce, then such a state providing infrastructure and a commercial code as well as basic physical safety might be just.  

Some of these functions–such as roads–might be provided by private parties rather than by the state, but in this way of thinking about things, the state is viewed as if it were a species of private organization. As long as the people subject to it would voluntarily choose to belong to it, even when they still had basic physical security when not belonging, then the demands of the state can be seen as like those of a private club. 

Looking at things this way, a basic right has to always be to leave the club if one wants to. And one should be able to continue to associate easily with others who have decided to leave the club, and even form an alternative club. Thus, from this point of view, for existing states to be just, it is crucial that there be spots on the earth where people can buy land along with the associated political rights to start a new nation on that land

If one wants to justify redistributive taxation, there is a twist one can put on this notion that free and equal individuals would have to voluntarily want to belong to a state for that state to be just. That is to change the question to whether someone would voluntarily choose to belong to a state over remaining free and equal with all others outside a state behind a Rawlsian veil of ignorance, not knowing if one would be talented or not and therefore not knowing if one was likely to be rich or poor. I think John Locke himself was more in the spirit of asking whether one would agree after knowing one’s level of talent to belong to a society. But would-be willingness to consent if one were behind a Rawlsian veil of ignorance might count for something in the justice of a state existing. 

Thinking of consent to belong to a state as compared to a free and equal state of nature, there is one very tough minimal requirement of justice that is not always noted: a state must not be dominated in attractiveness by another state that is willing to accept more members. And if State B is more attractive than State A for reasons that State A could imitate that calls into serious question the justice of State A as it is. Further, even if State B in this story doesn’t actually exist, but truly could exist in all practicality, much of the force of the argument remains. 

That is, the logic of consent from the free and equal state of nature means this: a state is unjust if it is doing things in a suboptimal way that people would migrate away from to a more optimized state. The reason is that no one would consent to be part of the state doing things in a suboptimal way if they could instead be part of the state doing things the optimal way. In other words, bad public policy that is bad enough people would want to migrate away from it is not just bad, it is unjust. 

One can combine this idea of a suboptimal policy being unjust because no one would consent to it if starting in a free and equal condition they could choose a similar state but with a better policy with the idea of consent from behind a Rawlsian veil of ignorance. If one would shift one’s decision of which state to be a part of from one with a policy that looks less attractive behind the veil of ignorance to one that looks more attractive behind the veil of ignorance, the justice of a state with a policy that would look less attractive behind the veil of ignorance stands in question. 

John Locke’s perspective of people beginning free and equal is very refreshing in a world still filled with domineering states. The world still has a long way to go on the way to freedom.