Beyond Tacit Consent: Rethinking Immigrant Membership In Locke’s Social Contract

Authors

• Claire A. Orfield, Bates CollegeFollow

Abstract

This thesis considers the tension in Locke’s writings between universal natural-rights obligations required of a state and the exclusion of foreigners from the potential to become express consenters, thereby becoming permanent members of a state and receiving more than just baseline legal protection. Although other scholars certainly acknowledge this tension, most of them utilize it to support the abandonment of Locke’s framework of tacit and express consent altogether. This thesis, on the other hand, conducts an immanent critique of John Locke’s theory of consent by demonstrating that his own conceptual framework contains the resources for a more expansive understanding of immigrant membership than he, and much of the scholarship, explicitly acknowledges. Locke insists that foreigners “do not…come to be subjects or members of [the] common-wealth,” but Locke’s theory of express consent, in which one becomes a subject or member of a commonwealth “by positive engagement, and express promise and compact” (section 122), implies that immigrants who engage actively in a polity, for example, through political participation, would become members of that civil society. This thesis begins by investigating the scholarship (both Locke’s own and those of political theorists) to acknowledge this gap. Next, it acknowledges that while Locke distinguishes between tacit and express consent, his social-contract framework, his account of “coming-of-age,” and his writings on nautralization together imply that, unlike the literature suggests, these forms of consent do not distinguish between immigrants and citizens. Rather, membership is a spectrum of political obligation dependent on one’s relationship to the state. Finally, this thesis explores the practical ways in which immigrants fulfill political obligations required for membership through acts like civic contributions, political engagement, and economic participation. Therefore, this framework supports the idea that Lockean theory can accommodate immigrants as genuine members of a political society even without legal naturalization, offering a more inclusive model of political membership than is typical of Lockean readings.

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Recommended Citation

Orfield, Claire A. (2026) "Beyond Tacit Consent: Rethinking Immigrant Membership In Locke’s Social Contract," Bates College Undergraduate Law Review: Vol. 3: Iss. 1, Article 8.
Available at: https://scarab.bates.edu/bulr/vol3/iss1/8