Locke's teaching that government arises from the consent of the people is well known. But it's not well known that Locke explains the emergence of all social institutions as created by popular consent. Human beings have created not only government (ST, 95-99) but also languages (ECHU, III.2.8), families (ST, 74-83), morality (ECHU, 28.10), and money (ST, 36) by consenting to their existence. This is what I have called the evolutionary symbolic niche construction of Lockean liberalism. Of course, Locke does not use this terminology, but it's the best way to explain what he means in claiming that human beings create social institutions by consenting to them.
We should start by seeing that Locke was answering the fundamental question of modern intellectual life.
HOW MANY WORLDS ARE THERE?
If we accept the modern scientific explanation of the natural world as it arose in the seventeenth century, how can we explain the human mind and human society?
There are at least three ways to answer this question. One way is to assume that there is only one world, and therefore the mind and society must be explained as arising somehow from the natural world as studied by modern science. Another way is to assume that there are two worlds, because the natural world of science is separated from the human world of mind and society. A third way is to assume that there are three worlds--the natural world of objective facts, the mental world of subjective experience, and the cultural world of social ideas and practices.
According to the first way, the natural sciences, the social sciences, and the humanities should become parts of one universal science of nature. According to the second way, there is an unbridgeable gulf between the natural sciences and the human sciences. According to the third way, the unbridgeable gulf separates three realms of thought about three different worlds: the natural sciences are separated from the psychological sciences, and both are separated from the social sciences and humanities.
As should be evident from many of my posts, I think the first way is best. There are two different intellectual strategies for achieving this one-world vision--reductive physicalism and emergent evolution. According to reductive physicalism, the complete unification of all knowledge of the natural world would ultimately require explaining everything through physics. According to emergent evolution, which is the position that I take, the history of the universe is a history of emergent complexity, in which higher levels of complexity arise from lower levels, and while those higher levels are consistent with the lower levels, the higher cannot be fully reduced to the lower.
My thinking here largely coincides with the thinking of John Searle, particularly in his book Making the Social World: The Structure of Human Civilization (Oxford University Press, 2010). Like me, he thinks the fundamental questions of modern intellectual life are about how to explain human life in a manner that is compatible with modern natural science.
"How can we give an account of ourselves, with our peculiar human traits--as mindful, rational, speech-act performing, free-will having, social, political human beings--in a world that we know independently consists of mindless, meaningless, physical particles? How can we account for our social and mental existence in a realm of brute physical facts?" (ix)Like me, Searle assumes that we live in one world--that we live in one reality with physical, mental, and social aspects--and that our explanations of mental and social life must be compatible with the physical sciences but not simply reducible to those sciences. And so, for example, in Making the Social World, he offers an explanation of social reality as created and maintained by language, while explaining language as a natural product of the human biological evolution of the brain that enabled the human mind to create social institutions through what he calls "collective intentionality."
I mostly agree with Searle about all of this. My one major point of disagreement is that Searle fails to see how his account of how human beings create social institutions through collective recognition or acceptance of those institutions is a Lockean social contract theory of morality and politics. If one sees this, and also sees how Lockean social contract reasoning can be understood in modern evolutionary theory as symbolic evolution and niche construction, then Lockean liberalism can be understood as the symbolic niche construction of liberal institutions. This can also be described, as it is by Deirdre McCloskey, as a transformation in ethical ideas, moving from an aristocratic ethics that scorned the pursuit of economic gain to a bourgeois ethics in which life in a commercial society became virtuous.
We live in a world of institutional facts that constitute our social reality. Consider one of Searle's favorite examples--the twenty dollar bill. Because of its institutional status, I can use that twenty-dollar bill to buy goods and services. As a physical object, it's only a piece of paper with some ink marks on it. But as long as we accept its institutional status as currency of the United States, with its stipulated value, it has power as a medium of exchange. Searle would say that this institutional reality of the twenty-dollar bill has been created by a linguistic or symbolic representation that we can call a Declaration of Status Function, which has the form "X counts as Y in C." We agree that this piece of paper counts as money in the context of the monetary system of the United States. It has the status of money that can function as currency because of our agreement to regard it as such. Remarkably, we have created the social reality of money by declaring our agreement that it should count as such, as long as the paper money has the correct symbols, such as the words "This note is legal tender for all debts, public and private." (Searle does not realize that he is following Locke here, because Locke stressed that the "invention of money" was "by consent" [ST, 36].)
The mystery here, as Searle indicates, is how we can have an objective knowledge of this social reality that is created by human subjective opinions. The human capacity for language and symbolism enables us to create a reality by representing that reality as existing and agreeing among ourselves to accept that reality as existing, which allows us to create a social and institutional reality out of language, symbolism, and collective intentionality.
To explain scientifically how this subjective creation of social reality is possible in a natural world of physical facts, we would need to explain the natural evolution of the human brain that created the human capacity for language and symbolism. Searle offers a conceptual analysis of how language as a natural, biological phenomenon could have evolved among human evolutionary ancestors as an extension of prelinguistic forms of intentionality. Within evolutionary biology, there is continuing study of the evolution of human language.
Other animals have some capacity for communication and social learning that can create animal cultures of inherited behavioral traditions. But human beings are probably unique in their capacity for language and symbolism that allows them to create imaginary social realities. (As I have indicated in a previous post, Eva Jablonka argues well for the evolution of symbolic culture as being uniquely human.)
So, for example, some primates have social orders in which some individuals are treated as alpha males. But this falls short of the human capacity of moral symbolism by which we agree to recognize some individuals in specified circumstances as having the right to rule over us.
Here we see the moral power--or "deontic power" as Searle calls it--implicit in the human creation of social reality. "Deontic" is derived from the Greek word deon, denoting something we must do or ought to do--our ethical duty. In creating social facts, we create ethical facts, because we create formal laws or informal norms of social life that constitute rights and duties of individuals in specified social roles. As a husband, professor, and citizen, I have the rights and duties of those socially created roles. Moreover, as a human being, I might have the human rights and duties that arise from my socially recognized status as a member of the human species. Searle argues that this is indeed the case--that our social reality does include the reality of natural human rights, which include the natural rights to life, liberty, property, and the pursuit of happiness, as rights rooted in our biological human nature.
This sounds a lot like John Locke's argument for natural rights and social order constituted by a social contract. But, oddly, Searle rejects Locke and social contract reasoning, without realizing that his thinking largely coincides with that reasoning. Searle doesn't see that in explaining how status functions arise from "collective intentionality" or "collective acceptance or recognition of the object or person as having that status" (8), he is adopting the Lockean argument for social authority as arising from the consent of human individuals.
Searle offers two criticisms of Locke and the social contract theorists. He says that they are wrong about the state of nature, because they don't understand that once human beings have a shared language, they have a social contract and a society. "If by 'state of nature' is meant a state in which there are no human institutions, then for language-speaking animals, there is no such thing as a state of nature." His second criticism is that Locke "gives no evidence of seeing that any account of language could show how language underlies society" (62). Both of these claims are mistaken.
Locke makes it clear that in the state of nature, when human beings lived in bands of hunter-gatherers, there was no formal government, but there were human institutions--particularly, marriage, families, private property, economic exchange, and social norms of moral conduct that Locke calls "the law of nature." There was a kind of informal government in the governing of children by their parents and in the episodic authority of military leaders in time of war (Second Treatise, pars. 74-75, 94, 105, 107-109, 170).
Searle is also mistaken in assuming that Locke did not recognize how language creates society. In fact, Locke explained in the Essay Concerning Human Understanding that social institutions were created by human beings through the language of "mixed modes" for use in social intercourse (II.2.22; II.28.2-4; II.31.3; III.1.1, III.2.8; III.5). Echoing Locke's terminology, Searle speaks of "the mode of existence of social entities" (5).
Locke emphasizes the arbitrariness of mixed modes. The ideas of mixed modes are "made very arbitrarily, made without patterns, or reference to any real existence. Wherein they differ from those of substances, which carry with them the supposition of some real being, from which they are taken, and to which they are conformable. But, in its complex ideas of mixed modes, the mind takes a liberty not to follow the existence of things exactly." Mixed modes are "the workmanship of the mind" (III.5.3-4).
This is the same arbitrariness that Searle sees in institutional facts that exist only because we think they exist and say that they exist. Searle declares: "God can create light by saying 'Let there be light!' Well, we cannot create light, but we have a similar remarkable capacity. We can create boundaries, kings, and corporations by saying something equivalent to 'Let this be a boundary!' 'Let the oldest son be the king!' 'Let there be a corporation.'" (100)
But since both Searle and Locke stress the arbitrariness with which human beings freely create their social norms by collective consent through speech, we have to wonder whether this denies that there is any natural foundation or standard for judging our moral ideas. And if so, wouldn't this contradict Locke's claim that there is a natural law knowable by natural human reason and Searle's claim that human rights are rooted in human nature, which suggest a natural standard rather than arbitrary creation?
Locke says that while mixed modes are made "very arbitrarily," they are not made "without reason" or "at random" (III.5.3, 6-7). Although our moral ideas are not copied from nature, they are made by human beings for the purpose of communicating standards of conduct that facilitate human social life; and the requirements of such a life are shaped by the natural desires and inclinations of human beings. The ultimate natural standard for judging social norms is whether they satisfy the natural human pursuit of happiness (I.2.3; III.21.42-73). In that way, human nature does set standards for our moral ideas.
So, for example, if human beings say that intentionally killing an innocent human being is murder, but killing a sheep is not, this distinction is not simply discovered by just looking at human beings killing one another and killing sheep. This moral distinction is made by human beings to serve the natural desire of human beings to preserve their lives against attack and to punish those that threaten them (III.5.5-6; FT, 86-88; ST, 7-11). And if we distinguish the killing of a father or mother as worse than killing others, it's because we agree to recognize the different heinousness of the crime that demands a distinct punishment that fits the crime (III.5.7). Similarly, if we create the idea of an incest taboo, it's because human beings naturally express moral disgust in response to incest, although there will be cultural variation in how incest is defined based on variable kinship systems.
Like Locke, Searle appeals to human biological nature as the natural standard for natural human rights. And from that standard, Searle derives a minimal list of human rights that looks much like what Locke would endorse: "the right to life, including the right to personal liberty, the right to own personal private property (such as clothing), the right to free speech, the right to associate freely with other people and to choose with whom one associates, the right to believe what one wants to believe, including religious beliefs as well as atheism, the right to travel, and the right to privacy" (185).
But while Searle sees these rights as status functions created by human beings through their collective intentionality, he recognizes that many people have believed that such rights are insecure if they are not seen as part of the natural order of things or created by God. He sees this in the Declaration of Independence: "We hold these truths to be self-evident" that all men "are endowed by their Creator with certain unalienable rights." Searle suggests that this belief in divine creationism is false (107, 118-19, 183). And he indicates that this creates a problem for his theory of social institutions. In such cases, "the status function only works as a status function precisely because it is believed not to be a status function but a brute intentionality-independent fact about the universe." But then, he indicates, all that matters is that the people do collectively recognize or accept the system of status functions, even though the collective acceptance is based on a false belief in a divine moral law (119).
Although Locke rejects the idea of the "divine right of kings," he does appeal to the creationist theology of human beings as having a special moral dignity because they are the "workmanship" of God who created them in His image (FT, 30, 52-54, 85-86; ST, 6, 56). He also, however, grounds the moral dignity of human beings in their self-ownership as beings who claim a property in their own persons (ST, 27, 172-73). And some readers have wondered whether this could provide a purely natural ground for Lockean natural rights, without the need for appealing to supernatural creationism.
In any case, evolutionary biology can recognize the practical efficacy of religious belief--particularly, religious belief in a moral God who cares for human beings and enforces moral law through rewards and punishments. Research in cross-cultural economic game experiments indicates that those who belong to one of the world religions tend to show a sense of fairness in their playing of the games. And evolutionary biologists like David Sloan Wilson have argued that religious belief evolved through group selection to support cooperation within groups.
Evolutionary biology could also recognize the success of Lockean liberalism in promoting its moral and political ideas as an expression of symbolic niche construction. "Niche construction" is a modern term in evolutionary theory that refers to plants and animals constructing the environment to which they are evolutionarily adapted. For example, beavers alter their environment by building dams, and beavers have adapted this constructed environment (Odling-Smee, Laland, and Feldman 2003; Odling-Smee 2024)
As a political philosopher who supported the radical Whig program, Locke was engaged in a rhetorical project to transform the religious, moral, and political ideas of England to create what would later be called liberalism. This was an exercise in symbolic niche construction. The success of that project began to appear with the success of the Glorious Revolution of 1688, and it emerged even more clearly later in the 18th and 19th centuries with the success of Lockean Whig ideas and the emergence of the Bourgeois Era and the Industrial Revolution.
The triumph of Locke's liberalism required a rhetorical change in moral ideas so that a bourgeois way of life could be seen as virtuous. This is what Deirdre McCloskey has been writing about in her series of books on the "bourgeois virtues." In a recent article, McCloskey has argued that Searle's social ontology supports her reasoning, because we can see the Bourgeois Era as arising from a status function declaration: Commercial life counts as honorable in the Bourgeois Era ("Max U vs. Humanomics: A Critique of Neo-Institutionalism," Journal of Institutional Economics 12 [2016]: 1-27.).
Although I generally agree with McCloskey, I do have some questions about her argument. In her criticism of Douglas North's institutional explanation for the modern move into open access societies, she sets up a stark opposition between social institutions and moral ideas, and argues that it was a change in ideas rather than a change in institutions that explains the modern revolution. But her acceptance of Searle's social ontology suggests that what she really wants to say is that social institutions rightly understood are created by the social acceptance of the moral ideas that constitute and maintain those institutions.
Another question that I have for McCloskey is also a question for Searle: Do they give enough weight to violence and war in shaping the moral history of social institutions? Occasionally, Searle acknowledges that social institutions have to be backed by force, although "forms of organized coercion are themselves systems of status functions" (88, 97, 104, 141-42, 163, 171, 173).
Locke goes farther than either Searle or McCloskey in stressing the importance of trial by battle when there is some deep controversy over who has the authority to settle disputes over political power. This is what Locke calls the "appeal to Heaven," the appeal to the God of battles (ST, 19-21, 109, 155, 168, 176, 232, 240-43).
Locke himself was involved in the Whig conspiracies for assassinating and rebelling against Charles II and James II. Because of that involvement, he was forced to flee to Holland to avoid being tried and executed for treason. While he lived in Holland, he had to worry about being captured by the King's agents and extradited to England for trial. He supported the Revolution of 1688, and despite its reputation as a "bloodless" revolution, there was a lot of violence in the Revolution (as Steven Pincus has shown in his 1688: The First Modern Revolution [2009]). Ultimately, the success of the Revolution depended on the defeat of the Jacobite armies that tried to restore the Stuart monarchy. The military threat of the Jacobites was not finally put down until the battle of Culloden in Scotland in 1746.
The evolutionary history of liberalism is a rhetorical history of persuasive speech, but it is also a military history of war that has turned on the unpredictable contingencies of battle.
As Winston Churchill observed, "Great battles, whether won or lost, change the entire course of events, create new standards of values, new moods, new atmospheres, in armies and in nations, to which all must conform" (Marlborough: His Life and Times).
If Lockean social contract reasoning can be understood as symbolic evolution and niche construction, then Lockean liberalism can be understood as the symbolic niche construction of liberal institutions. We can see this manifested in the Declaration of Independence, particularly in its famous second paragraph that echoes Locke's Second Treatise ("We hold these truths to be self-evident . . .).
The Declaration of Independence is what Searle calls a Declaration of Status Function, which has the form "X counts as Y in C." The American Revolutionaries declared that "these United Colonies [X] are, and of Right ought to be Free and Independent States [Y]" in the European system of states [C]. The success of that Declaration depended on whether in their "decent respect to the opinions of mankind," they could persuade world opinion to recognize their status as "Free and Independent States."
Their success depended on both the intellectual persuasiveness of their reasoning in the Declaration and the forceful persuasiveness of their winning the Revolutionary War. Of those people both inside and outside the American colonies who were not persuaded by the intellectual argument of the Declaration, many were persuaded to accept it once the Americans had won the war. Going to war to settle the dispute was what Locke called the "Appeal to Heaven"--the appeal to the "God of Battles."
In March of 1776, the Continental Congress asked for prayers "that it may please the Lord of Hosts, the God of Armies, to animate our officers and soldiers with invincible fortitude." In the following October, King George III issued a Proclamation "putting Our Trust in Almighty God, that he will vouchsafe a Special Blessing on Our Arms, both by Sea and Land" (Shain 2014: 407-408). This is the same as what Abraham Lincoln saw in the Civil War: "Both read the same Bible and pray to the same God, and each invokes His aid against the other" (Second Inaugural Addess). The "God of Armies" will decide.
The first major victory for the Americans was in the Battle of Saratoga in 1777. When French King Louis XVI saw this, he agreed to a formal Franco-American alliance. This proved to be a turning point in the war (Weddle 2021). If the British had won that battle, that might have been enough to refute the Declaration of Independence. As I have argued in previous posts, there is a sense in which might does make right.
The Continental Congress was a practical demonstration of the truth of the Lockean principles of the Declaration of Independence. Acting in a state of nature, the Congress exercised the Lockean executive power of the law of nature in punishing Great Britain for violating that natural law, in establishing the Continental Army to settle the dispute by force of arms, and in instituting a new government to secure their natural rights.
THE RIGHT TO DUE PROCESS OF LAW AS SYMBOLIC NICHE CONSTRUCTION
In writing new constitutions for governments at both the state and national levels, the Americans had to debate what kind of constitutional language would best secure their natural rights. Beginning with the Virginia Bill of Rights of 1776, it was common for the state constitutions to have a list of rights that must be protected. The U.S. Constitution of 1787 did not have a bill of rights, but many of the state ratifying conventions recommended amendments that would provide a bill of rights. In the First Congress of 1789, James Madison and others proposed such amendments, which were ratified in 1791, and these first ten amendments became known as the Bill of Rights. Here then is another example of symbolic niche construction through a declaration of status function: the American people agreed to recognize the first ten amendments as a statement of human rights in America as secured by constitutional law.
One of those stipulated rights is due process of law as stated in the Fifth Amendment: "No person shall . . . be deprived of life, liberty, or property, without due process of law." A similar provision became part of the Fourteenth Amendment: ". . . nor shall any State deprive any person of life, liberty, or property, without due process of law."
But as I have indicated in some recent posts, Trump has recently claimed that as President he has the power to suspend the right to due process of law--particularly, in his deportation of immigrants who have been sent to a prison in El Salvador. Trump's argument is that this cannot be an absolute right for all persons in the United States, because in time of emergency, the President must have the power to remove people from the United States without due process of life if he identifies them as dangerous threats to America.
Trump has appealed to the Alien Enemies Act as giving him this power to protect America from "invasions," and he claims that illegal immigrants constitute an "invasion" of the U.S. The Courts, however, have said that as used in the Alien Enemies Act, "invasions" clearly means military invasions. And since Venezuela has not invaded the U.S. militarily, Trump cannot deport Venezuelans without due process of law.
There are reports that Trump is considering suspending the writ of habeas corpus, which would be another way to suspend the right of due process of law. He could cite the Constitution's provision in Article I, Section 9, Clause 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
Abraham Lincoln suspended the writ at the beginning of the Civil War, claiming that the Confederacy was clearly in a "rebellion" against the United States, and the public safety required that his commanders in the field needed to suspend the writ to arrest and detain people suspected of being spies or saboteurs for the Confederacy.
Trump would have to convince the courts and the American people that the many illegal immigrants in the U.S. count as an "invasion," which makes it necessary for the President to suspend the writ to protect the public safety of Americans threatened by the criminal violence of illegal immigrants.
Trump could also claim that he was exercising what John Locke identified as executive prerogative--the power of the executive "to act according to discretion, for the public good, without the prescription of the Law, and sometimes even against it," which could include suspending individual rights in time of emergency (ST, 160).
This is an illustration of how Americans often have to debate the meaning of their symbolic niche construction of individual rights. If Americans have agreed to the establishment of due process of law as an individual right, must they agree that this is an absolute right never to be infringed? Or are their circumstances--perhaps a national emergency of some sort--in which the public good would require suspending that right? But if so, what counts as a true emergency in which the public good would require allowing the President to exercise dictatorial power in denying individuals the natural rights that we usually want to protect?
The courts and the American people will have to decide.
