Pufendorf and Locke on Tacit Consent (in language and money)

But that the Nature of Discourse may be more throughly understood, it must first be known, that there is a two-fold Obligation respecting Discourse, whether exprest with the Voice, or written in Characters. The first is, that those who make use of the same Language, are obliged to apply such certain Words to such certain Things, according as Custom has made them to signify in each Language. For since neither any Words nor any particular Strokes form’d into Letters can naturally denote any certain Thing (otherwise all Languages and Characters for writing would be the same; and hence the Use of the Tongue would be to no purpose if every Man might call every Thing by what Name he pleas’d;) it is absolutely necessary among those who speak the same Language, that there be a tacit Agreement among them, that this certain Thing shall be so, or so call’d, and not otherwise. So that unless an uniform Application of Words be agreed upon, ’twill be impossible for one Man to gather the Meaning of another from his Talk. By virtue then of this tacit Compact, every Man is bound in his common Discourse to apply his Words to that Sense, which agrees with the receiv’d Signification thereof in that Language: From whence also it follows, that albeit a Man’s Sentiments may differ from what he expresses in Words, yet in the Affairs of Human Life he must be look’d upon as intending what he says, tho’, as was said, perhaps his inward Meaning be the clear contrary. For since we cannot be inform’d of another’s Mind otherwise than by outward Signs, all Use of Discourse would be to no purpose, if by mental Reservations, which any Man may form as he lists, it might be in his power to elude what he had declar’d by Signs usually accepted to that end.--Pufendorf, Samuel and Barbeyrac, Jean. The Whole Duty of Man According to the Law of Nature (1673, 2003). Liberty Fund, 1673.  pp. 120-121

As regular readers know I have been directed toward Pufendorf's account of tacit consent because of my reading of Martin Lenz's entertaining and stimulating Socializing Minds (recall this post, especially; but also this one). Lenz (pp. 138-139) explicitly quotes the passage above, and notes four key anticipations of Locke in Pufendorf:

• • the characterisation of language as the great instrument of society,
  • the anti-naturalist conventionalism and the argument that if language were naturally significant, there would be just one language
  • the use of customary outward signs for inward meaning
  • the tacit agreement that binds everyone to apply words in accordance with the received use (receptus usus).--Socializing Minds, p. 138

Lenz is surely right about this, and I accept his contention that Locke's account of the conventionality of language (especially at Essay 3.2.8 and 3.11.11) is inspired by Pufendorf's  De Officio hominis civis, or at least that it would have evoked it to contemporary readers then.

So, this raises the question to what degree what I call recall 'the Humean template' for analyzing convention is already present in Pufendorf. The elements of the Humean template are: (i) a sense of common interest (i*) felt in each person's breast; (ii) and it (that is, (i)) observed in others; (iii), this fact (the existence of (i&ii) creates collaboration; (iv) the collaboration is structured in non-trivial ways; (v) and this has good consequences or positive externalities for society. (I avoid the language of 'utility' to avoid issues pertaining to utilitarianism.) And (vi) a Humean convention is contrasted with practices founded in promises and in practice regulated by formal governmental law. In addition, (vii), the process (i-iii) need not be verbalized at all. It can be entirely tacit. And I argued (recall) that Locke articulates the Humean template at Essay 2.28.10 in the context of describing how moral terms are structurally the same in each language even though they can refer to locally different moral behaviors and characters/character-traits. (And that we can also find (recall) the template in the Second Treatise, paragraph 50 in his account of the value off money.)

If we then look at the quoted passage from De Officio, we can read that Pufendorf treats the convention in terms of an existing "custom." And while this is fully compatible with the elements of the Humean template, we are left without an account how the custom could arrise. That's to say while Pufendorf makes, as Lenz notes, the obligatory character of the convention quite clear, he leaves its origin quite mysterious. For, earlier, Pufendorf defines custom as "the frequent Repetition of Actions of the same kind does also incline the Will to do certain Things" (pp. 34-35). But why linguistic practices get repeated in particular patterns is simply contingent now. 

This absence of a mechanism of how tacit consent arises is actually notable when Pufendorf explicitly treats of the practice:

Consent is usually made known by outward Signs, as, by Speaking, Writing, a Nod, or the like; tho’ sometimes it may also be plainly intimated without any of them, according to the Nature of the thing and other Circumstances. So Silence in some Cases, and attended with some Circumstances, passes for a Sign expressing Consent. To this may be attributed those tacit Contracts, where we give not our formal Consent by the Signs generally made use of among Men; but the Nature of the Business, and other Circumstances make it fairly supposable. Thus frequently in the principal Contract, which is express, another is included which is tacit, the Nature of the Case so requiring: And it is usual, in most Covenants that are made, that some tacit Exceptions and imply’d Conditions must of necessity be understood.--pp. 111-112

Pufendorf is undoubtedly correct that even in explicit covenants lots of tacit exceptions and implied conditions are presupposed and understood. (In a later passage he treats as plainly resulting "from the Nature of the Thing." (p. 127)) That there is often a social scaffolding on which a formal contract is built is pretty much a shared insight of all critics of Hobbes. But how we should think of the character and sources of this 'necessity' is left opaque in Pufendorf.

I don't mean to suggest Pufendorf never has a mechanism when he is discussing custom. So, for example, when it comes to price formation of prices in the market place (so called vulgar prices) he writes the following. 

But the Vulgar Price, which is not fix’d by the Laws, admits of a certain Latitude, within the Compass whereof more or less may be, and often is, either taken or given, according to the Agreement of the Persons dealing; which yet for the most part, goes according to the Custom of the Market. Where commonly there is Regard had to the Trouble and Charges which the Tradesmen generally are at, in the bringing home and managing their Commodities, and also after what manner they are bought or sold, whether by Wholesale or Retail. Sometimes also on a sudden the Common Price is alter’d by reason of the Plenty or Scarcity of Buyers, Money, or the Commodity. For the Scarcity of Buyers and of Money, (which on any particular Account may happen) and the Plenty of the Commodity, may be a Means of diminishing the Price thereof. On the other hand, the Plenty of Buyers and of Money, and the Scarcity of the Commodity, inhanses the same. Thus as the Value of a Commodity is lessen’d, if it wants a Buyer, so the Price is augmented when the Possessor is solicited to sell what otherwise he would not have parted with. Lastly, it is likewise to be regarded, whether the Person offers ready Money, or desires Time for Payment; for Allowance of Time is Part of the Price.--pp. 143-144

Here it is quite clear that the customary price itself reflects underlying costs and even disutility of production and procurement ("the Trouble and Charges which the Tradesmen generally are at, in the bringing home and managing their Commodities") and also reflects supply/demand conditions ("plenty or scarcity"/"plenty of buyers...wants a buyer") in the market-place as well as what we would call inflation, but in Pufendorf's time is felt in terms of the availability of coins [say because the local gold/silver/copper value of coins has made it attractive to melt them down or export them], or "ready money." Interestingly enough buying on credit ("time for payment") is not treated as pure equivalent for buying with coin, presumably not just in virtue of the delay ("allowance of time"), but also the implied risk.  Here Pufendorf has a relatively clear account of the mechanism by which the vulgar price can change, but again, he has no account of how it can become customary (except that conditions  of change are not operative).

I have not done an exhaustive survey of Pufendorf. (You go read, Of the Law of Nature and Nations: Eight Books!--Seriously, I welcome suggestions.) But Locke deserves some credit for recognizing that Pufendorf's account of convention and tacit contract left too much unexplained. And while I have not defended the adequacy of the Humean template, the fact that Locke adopts it in non-trivial ways is no small advance over Pufendorf's analysis.