How should we govern ourselves? Since Locke’s Second Treatise, the presumption has been in favour of self-government — that is, each individual adult person has the natural right to govern his or her own life. Thus government by others is, when legitimate, only derivatively so. For a government to be legitimate, an individual must give consent to this government.This formulation has been deeply influential on both theory and practice. There’s a real sense in which we are living in Locke’s world today, with our unthinking acceptance of the framework of individual rights, particularly the framework of individual autonomy — that there should be a sphere of action within which no one may encroach but the individual.The problem with a deeply influential framework, though, is it becomes difficult to notice its problems. They may fade into the background and become unnoticed; they may also be noticed, but misattributed (vacuous appeals to “human nature” are an obvious case). And there are serious problems with the Lockean framework. The sense in which a person can be individual is likely wrong. Locke himself seems to have thought that a person consisted of a set of properties possessed by an underlying — property-less — thing. This is consistent with his general metaphysical approach — he thinks of physical objects in the same terms — but it’s hard to motivate the theory. It’s actually hard to even get a grip on it. What is it for something to be property-less — to be, but not to be anything particular. Ignoring the metaphysics and focusing on the psychology, it seems wrong to say that a person can exist as a full and recognizable individual human without the influence of other humans. There’s a (trite, lazy) expression that “humans are social animals”; what that expression points at, however, is the true claim, noticed by Plato and Aristotle, that humans are partially constituted by social roles, practices and expectations. It is only within the context of other humans that we can be really human; otherwise, we are only apes with ideas above our station.The motivation for natural rights that Locke gives us is very hard to take seriously. Locke himself grounded it on a personal and creator god. My right to govern myself derives from this god’s right to control his own creation. God created me, gave me to myself, and thus transferred the right to govern the creation (i.e., me). All well and good, but what happens when the god hypothesis no longer makes sense? It’s hard to find even committed religious folks who can take this seriously — a god that makes each individual human, then transfers the ownership papers to that created being. It’s not just the metaphysical problems with god that are worrying here, although they are troubling. What’s really worrying is the way in which ownership is assumed to make sense for the divinity, and then our self-government is derived from that assumption. God’s ownership of his creation is not supposed to be a problem, and, given that, our self-ownership follows; but if a god can just own a creation outright, why can’t a human being own him- or herself, simpliciter?And that’s assuming that ownership is the right way to make sense of how we can be autonomous. There’s something rather fishy about the logic here. The only cases of ownership that we know of are cases where the owned thing is separate from the owner; the owner can govern the owned, we grant, but the owner and the owned are not the same. Locke wants to extend this model to the individual person, but the analogy looks weak.Not to mention that the idea of “natural rights” looks ridiculous to anyone who takes evolutionary biology at all seriously. Where did the natural rights come from? Do only humans have them, despite our extremely close genetic similarity to chimps and other apes? Bentham called natural rights “nonsense upon stilts” — the word “natural” serving as mere rhetorical flourish added to the only notion of rights he could make sense of, namely legal (one might say “civil”) rights. He wasn’t wrong.Turning to consent, the issue is notoriously difficult. Explicit consent is an obvious way in which an institution, like a government, can gain authority over an individual; but explicit consent is rare. So, either explicit consent isn’t it, or most governments are utterly illegitimate. Locke, recognizing the challenge, tried to fix the problem with a notion of “tacit” consent — consent which exists when one accepts the benefits or burdens of a state. As Hume pointed out, though, most of us assumed those benefits or burdens long because we had no alternative. It seems odd to say that government legitimacy derives from consent when “no government, thanks” isn’t among the options. Rawls, much later, tried to solve the problem by appealing to hypothetical consent — what ideally rational individuals in a fair situation would decide to accept is what we actual individuals are bound to follow — but, as Nozick responded, hypothetical consent isn’t really consent any more. As it says on the tin, it’s “hypothetical”. (If I recall correctly, Rawls granted the point; I’m not sure all his followers got the memo.)Despite all this, though, something seems right about what Locke said. We are entitled to govern ourselves. No government is legitimate if it does not have the support of the people governed. These are the basic elements of democratic governance: the people are the supreme source of governmental authority, and that authority must be accepted freely. I tend to think Kant and Rousseau were onto something when they said — not independently; Kant was explicitly inspired by Rousseau — that humans are creatures that are both subjects and sovereigns. We can create our own rules, with great freedom; and we can create rules which turn back and bind us to them, limiting our freedom. Although some (Kierkegaard, for example) find this metaphysically perplexing, even a source of psychological pain, it’s not all that complicated. It’s not a conjuring trick so much as a sociological feat. Rules will emerge in any group of animals: some will be in charge, some will not, some will work at one task, some will work at another. Humans, possibly uniquely, are able to recognize those rules and adjust them consciously: accept some, discard others. The origin of rules can be accounted for naturalistically; the development of rules can then be accounted for rationally. No mystery required.Given all that theoretical meandering, here’s my question for this week: how could the basic Canadian political institutions — so, Parliament, the Crown, and the Courts — be altered to suit the basic democratic principle of self-government? It’s obvious that something needs to be changed; Brigette DePape is one of the few to gain public attention for noticing as much. A quick recent summary of concerns:
- A party which couldn’t manifest more than 40% of the vote controls 54% of the seats in the Commons, and (officially) 52% of the seats in the Senate. The Conservative government has consent, officially, from less than 50% of the population, but controls sufficient numbers of seats in both Houses to pass (theoretically, anyway) any legislation it likes.
- Our head of state is not a Canadian citizen, nor a resident, and not subject to the laws of the land. (I think the problem here speaks for itself.)
- As for the various courts, the system itself is archaic. I’ll get into exactly why later on, but: if one were to design, from scratch, a way to resolve disputes over matters of law, would the first option really be a contest of rhetoric before a referee?
