John Locke: Second Treatise of Govt. (III)

As promised, more on Locke. We'll continue with the section Of Political or Civil Society ending before the section Of the Extent of the Legislative Power.

Locke notes that man is inclined toward society. But society is not synonymous with the political, so we must examine political society in particular. "Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them, and punish offenders, are in civil society one with another." (Princeton Readings, p. 258) The emphasis on the judicial aspect of civil society is a key component in Locke's philosophy.

We learn his objection to absolute monarchy, namely that the monarch is "judge in his own case." (p. 259) While each man is his own judge in the state of nature, it is incompatible with civil society, which requires, as we shall see later, an impartial judiciary.

Lock speculates as to how civil society could have been formed: "when any number of men have so consented to make one community or government." (p. 260) Implicitly, man could have consented to remain in the state of nature rather than enter civil society, though Locke would advise against this.

We might also wonder whether man may remove himself from civil society by removing his consent. This is not the case for Locke. For the civil body must move with the will of the majority. So while man must give his consent to form a civil society, once he enters into it, he is bound by the will of the majority--at least at this point in the treatise. We cannot insist on full consent because it will be so difficult to come by, and thus our civil society, being deprived of all power, is effectively meaningless.

Once civil society has been established, man gives his tacit consent to governmental rule by residing in--or owning--land in the area ruled by that particular government. However, unlike the express consent man gives when civil society is being created, tacit consent may be removed if a man sells his property and vacates that society.

Locke asks why man would leave the state of nature and "part with his freedom" in order to "subject himself to the dominion and controul of another power." Since the "enjoyment of the property he has in this state is very unsafe, very unsecure... The great and chief end, therefore, of men's uniting into common-wealths, and putting themselves under government, is the preservation of their property." (p. 262) Thus we also have a Lockean test for good government; a regime is well-ordered if property rights are consistently defended.

He highlights three shortcomings to the enforcement of property rights in the absence of government. First, law must be settled and established, so that controversies may be settled according to a consistent measure. Second, an impartial judge is needed to settle these controversies. Third, there must be power to enforce the decision made by the impartial judge.

I find it instructive to examine whether our own regime, founded with Locke in mind, continues to meet his criteria. The 70,000 pages of law written by bureaucrats and added to the Federal Register every year make it increasingly difficult to apply a settled and established law. And while the State continues to fulfill the function of ostensibly impartial judge between two parties, it's unclear what Locke proposes when the State is itself one of the parties.

Perhaps he need not be faulted for this; after all, the judicial department arguably created this problem themselves when they established the precedent of judicial review in Marbury v. Madison. And we should be careful with conflating Locke and American government. Still, as Copleston points out, Locke is a telling reminder that philosophy does matter since the United States Constitution could not exist without the writings of Locke.

Returning to the task at hand, man gives up two powers when he puts himself under government. He may continue to "do whatsoever he thinks fit for the preservation of his himself" (p. 263), but this power is now privy to regulation by the government; and he may no longer punish crimes at all, this power being handed over to the state.

This legislative power can "never be supposed to extend farther, than the common good." Moreover, "all this [is] to be directed to no other end, but the peace, safety, and public good of the people." (p. 264) At this point, Locke has not explained how this restraint will be affected. We'll have to wait and see what suggestions he has to offer.