Consent & Legitimacy: Rawls vs. Locke

Introduction

Welcome to our third lesson. In our previous sessions, we explored two towering figures of social contract theory, Hobbes and Rousseau. We saw how Hobbes justifies an absolute sovereign as the only escape from a brutal state of nature, and how Rousseau envisions a radical social pact where freedom is found in submitting to the "general will"—a law one gives to oneself as part of a sovereign collective.

While both thinkers use the language of a "social contract," the nature of the "agreement" they imagine is vastly different. Today, we will drill down into this foundational issue of consent, which is the bedrock of legitimacy for any non-authoritarian political theory. This lesson directly addresses the learning outcome: Distinguish hypothetical consent (Rawls) from tacit/actual consent (Locke) as foundations for political legitimacy.

We will compare two distinct answers to the question: "By what right does the state rule?"

1. John Locke's answer, based on actual and tacit consent, argues that legitimacy stems from the real-world actions and agreements, however implicit, of the governed.
2. John Rawls's answer, based on hypothetical consent, grounds legitimacy not in what people have done, but in what perfectly rational and fair-minded individuals would agree to.

Understanding this distinction is critical. It separates theories that ground political authority in history and individual will from those that ground it in abstract reason and justice. This exploration will provide the necessary foundation for our next lesson, where we will delve into the mechanics of Rawls's famous thought experiment.

1. Locke: Legitimacy through Actual and Tacit Consent

John Locke, writing in the aftermath of England's political turmoil, sought to establish a basis for government that was neither arbitrary nor absolute. His solution, detailed in his Second Treatise of Government, is that legitimate government can only be established by the consent of the governed.

For Locke, individuals in a state of nature possess natural rights and a natural authority over themselves. The social contract is not the creation of authority out of nothing (as in Hobbes), but rather the transfer of a pre-existing authority from individuals to a political body for the purpose of impartially protecting their rights. This transfer requires consent.

Locke's theory relies on two forms of consent: express and tacit.

• Express Consent: This is a direct and explicit agreement to join a political society, such as swearing an oath of allegiance. Locke believed this was how the original political societies were formed.
• Tacit Consent: This is the more contested and practically relevant form of consent. Locke argues that a person gives tacit consent simply by enjoying the benefits of a state's dominion.

To see a clear example of how Locke uses this idea, let's watch a short clip.

As the video explains, by using money, an individual tacitly consents to a system that allows for wealth accumulation and inequality beyond what the original state of nature might have permitted. Locke extends this logic more broadly: anyone who owns property, lodges for a week, or "barely travelling freely on the highway" within a territory is giving their tacit consent to the laws of that government.

The core of Locke's position is that legitimacy is rooted in the will of the people, expressed either actively (express consent) or passively through their actions (tacit consent). It is a voluntarist and historical theory: authority derives from what people have actually willed or done.

However, this view faces powerful objections. As the philosopher David Hume later argued, is it realistic to claim that a poor farmer who has never left their village has "consented" to the government, when their only alternative is starvation? This critique opens the door for a different approach to legitimacy.

2. Rawls: Legitimacy through Hypothetical Consent

John Rawls, writing in the 20th century, sought to develop a theory of justice that did not depend on the shaky foundations of tacit consent. He, along with predecessors like Immanuel Kant, pioneered the idea of hypothetical consent.

The core idea is this: political principles are legitimate not because we have consented to them, but because we would consent to them in a fair and ideal choice situation. The legitimacy of the state rests on an appeal to reason, not on an appeal to a supposed historical act of agreement.

Rawls's method for determining what we would consent to is his famous thought experiment, the "Original Position," which we will examine in detail in the next lesson. For now, let's get a brief introduction to this idea.

As the video illustrates, Rawls's thought experiment is explicitly not real. It is a hypothetical scenario populated by idealized agents who are made ignorant of their personal attributes. Their consent is therefore not an act of will, but a conclusion of reason. The principles they agree upon are considered just because the procedure for choosing them was fair.

To solidify your understanding of this core distinction, let's turn to a scholarly resource that lays out the contrast directly.

This reading clarifies that while both traditions use the term "consent," they are engaged in fundamentally different projects. Locke is trying to ground legitimacy in a form of personal authorization, while Rawls is trying to ground it in a standard of public reason.

3. Justification vs. Obligation: The Purpose of Hypothetical Consent

A very common and powerful criticism of hypothetical consent is summarized by the philosopher Ronald Dworkin: "A hypothetical contract is not simply a pale form of an actual contract; it is no contract at all." If I would have agreed to pay you to paint my house, that doesn't mean I am now obligated to pay you if you go ahead and paint it without my actual agreement.

This objection seems devastating. However, it rests on a misunderstanding of what hypothetical consent is meant to achieve. A careful look reveals a crucial distinction between the concepts of justification (legitimacy) and obligation.

The following academic paper digs into this distinction. Given your background, you will appreciate the logical precision of the argument. It defends hypothetical consent by clarifying its proper role.

Stark's argument allows us to see the two models of consent as operating at different levels:

• Actual/Tacit Consent (Locke): The act of consenting is intended to do double duty. It both confers legitimacy on the authority and creates a direct obligation for the individual to obey. It functions like signing a real contract.
• Hypothetical Consent (Rawls): The thought experiment's purpose is more focused. It serves to justify a set of principles—to show that they are fair and rational. It establishes their legitimacy. It does not, by itself, create political obligation. For Rawls, the duty to obey a legitimate state arises from a separate moral principle, which he calls the "natural duty of justice" (as Stark notes in Section V of her paper).

Your familiarity with formal systems and model-building may be useful here. You can think of Locke's model as attempting to trace a direct causal chain from an individual's action to their political obligation. Rawls's model is more like an axiomatic system; the thought experiment is a procedure to derive the axioms (the principles of justice), and the theorems (specific obligations) follow from those axioms in conjunction with other moral duties.

Conclusion

Today we have dissected two fundamentally different ways of grounding political legitimacy. The distinction between them is not merely academic; it reflects a deep divergence in how we think about the relationship between the individual, reason, and the state.

Key Takeaways:

• Lockean legitimacy rests on actual or tacit consent. It is a voluntarist theory rooted in the supposed historical actions or implicit agreements of individuals. Residing in a state or owning property is taken as a sign of consent.
• Rawlsian legitimacy rests on hypothetical consent. It is a rationalist theory rooted in what ideal, free, and equal persons would agree to under fair conditions. It is an appeal to reason, not to an actual event.
• This distinction corresponds to a difference in function. Actual consent is meant to simultaneously justify authority and create obligation. Hypothetical consent's primary role is to justify the principles that structure authority (i.e., establish their legitimacy), while the basis for individual obligation is often treated as a separate question.

Preview of the next lesson:

Now that we have firmly established that Rawls's project relies on a hypothetical contract, we are prepared to enter the machinery of his thought experiment. In the next lesson, we will analyze the function of the Original Position and the Veil of Ignorance. We will explore precisely how these conceptual tools are designed to filter out bias and lead all rational participants to agree on Rawls's two famous principles of justice.