The legislative branch, for Locke, is said to be "the supreme power in every commonwealth" (265). The "first and fundamental" positive law is that establishing a legislature, which is in all of its actions to be governed by the "first and fundamental" natural law, which requires "the preservation of the society, and (as far as will consist with the public good) of every person in it" (264). On the next page he talks about this fundamental law as being the "preservation of mankind." This is interesting in that, as you recall, his earlier statement of the "first, and fundamental" law of nature is "seek peace, and follow it" (210). What Locke in the latter passage asserts as fundamental, he in the earlier passage treats as derivative (the second law of nature is "that a man be willing, when others are so too, as far forth, as for peace, and defence of himself as he shall think it necessary, to lay down this right to all things; and be contented with so much liberty against other men, as he would allow other men against himself"). I'm not sure that this inconsistency actually presents any challenge to his political doctrine; yet, if you're going to take the trouble to put your laws in a hierarchy, you could at least be consistent about it.
If there is a tension between the two formulations, it lies in the difference in priority between individual and commonwealth. In the latter presentation, the government clearly has the authority to demand the lives of some of its citizens, i.e. as soldiers, where this is necessary for the commonwealth as a whole. Such a demand could also be defended on the earlier order of presentation, but it presents itself as decidedly more problematic.
Aside from this, most of what he says on the extent of legislative power strikes me as fairly straightforward. There's a nice summary at p.268: the law must be promulgated, it must aim at the common good, it cannot deprive people of property without consent, and this authority cannot be transfered to any body besides that instituted by the citizenry.
If there's a problem with anything here, it's with the vagueness of the "common good," a notion he also invokes to help distinguish between a king and a tyrant (271). What do we do when large sections of the public disagree about what constitutes the common good? I'm not sure that Locke has a good answer.
In the next section, as a concession to "human frailty," Locke argues that enforcement of the law should be delegated to a separate branch of government, so that the legislators are not tempted to abuse their powers and place themselves above the law. I recall Locke saying something about a judiciary, and viewing it as a sort of sub-branch of one of these two--but I can't find the passage just now. The name he proposes for the third branch that he does mention is the "federative." The thought is that, although citizens have exited the state of nature with respect to one another when joining together to form a commonwealth, nevertheless, that commonwealth remains in the state of nature with respect to other commonwealths (269). The federative branch, then, is in charge of the international affairs consequent.
Interestingly, although Locke advocates for a division of power, he is decidedly not promoting a republican system of checks and balances of the sort briefly in place in Rome and later instated by the framers of the American Constitution. The legislative represents the majority, and its will goes unchecked.
The remaining sections of the Treatise deal with the charged issues pertaining to the recourse of a citizenry when the government violates its fiduciary trust. Significantly, Locke does not speak of a "right to revolt." Instead he speaks of a government "dissolving itself," and hence generating the imperative, per natural law, that a proper government be re-instituted. It is the tyrant, properly speaking, who is the true rebel, for he has violated the trust of the people (277).
There are essentially three ways that the government might dissolve and so need to be replaced. First, if the society is invaded and conquered from outside (272). Secondly, the government dissolves if the legislative is altered from that put into place by the people (Locke catalogs five different ways that this can happen (273-275)). Thirdly, when the legislative or executive branch acts contrary to the people's trust (275). It seems to me that the third category ought to capture everything from the second category and more, so I'm not sure Locke even needs the former. In any case, I take the basic point of this section to be fairly straightforward. Do let me know if you find anything valuable in his more detailed discussion of what these forms of dissolution look like in practice.
As usual, sorry it took so long to pull this together. I look forward to your comments.
Cheers, PJ
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3 comments:
I'm not sure that this inconsistency actually presents any challenge to his political doctrine; yet, if you're going to take the trouble to put your laws in a hierarchy, you could at least be consistent about it.
That's a fair criticism, but I don't think it presents any real problem.
What do we do when large sections of the public disagree about what constitutes the common good? I'm not sure that Locke has a good answer.
The general idea would be that the king is not simply to do whatever he can to increase his own well being, but concern himself with the good of all. He leaves the matter ill-defined, true, but I think we have a general idea of what he means.
Interestingly, although Locke advocates for a division of power, he is decidedly not promoting a republican system of checks and balances of the sort briefly in place in Rome and later instated by the framers of the American Constitution. The legislative represents the majority, and its will goes unchecked.
I don't think we should over-emphasize the innovation of the founders. Since only they could propose laws, the legislature was arguably the most powerful branch--though the "power of the sword" remained in the hand of the executive. The judicial branch was easily the weakest of the three until it invented--or found--the concept of judicial review. Still, it's a good point.
Do let me know if you find anything valuable in his more detailed discussion of what these forms of dissolution look like in practice.
My only question would be whether or not Locke would approve of secession. We can't really know, of course, but I would cautiously suggest that he would. I don't think we can pretend Locke was an anarchist--i.e. one who believes that individuals may secede from government--but I wonder if he would have been intellectually drawn to the position of the Confederacy.
It's not a terribly relevant point, but I have the War of Southern Independence on my mind since I'm reading Shelby Foote's series on the subject.
Eric: The general idea would be that the king is not simply to do whatever he can to increase his own well being, but concern himself with the good of all. He leaves the matter ill-defined, true, but I think we have a general idea of what he means.
PJ: Any legislature serving its own interests in place of the public's has clearly become tyrannical. No one disputes that. But what if your idea of the public good is for everyone to be left alone with their firearms and their plot of land, whereas mine is to be provided with a wealth of services (police, military, education, health care, unemployment, transportation infrastructure, consumer safety regulation, etc.--in return for which I happily consent to pay the necessary taxes)? And suppose we each have about 40% of the population on our side, with the other 20% militating for, say, a nationalist dictatorship. All parties involved believe that their program is the one that's the best for everyone. It seems like Locke's theory is going to hand everything to you or me, whichever of us manages to win an extra fraction of support (and perhaps swing entirely to the other side six months later when another hand-full change their minds). So this is really just another iteration of my concern about a tyranny of the majority. It just seems to me that we need a better institutional mechanism to promote negotiation and compromise.
Eric: My only question would be whether or not Locke would approve of secession. We can't really know, of course, but I would cautiously suggest that he would. I don't think we can pretend Locke was an anarchist--i.e. one who believes that individuals may secede from government--but I wonder if he would have been intellectually drawn to the position of the Confederacy.
PJ: He would have supported the Revolutionary War, as the Founders saw, because the colonists did not have proper representation in the legislative body governing them. I am inclined to say that he would have been against Southern secession because the South did have representation; it's just that they did not like the direction the majority was headed.
So this is really just another iteration of my concern about a tyranny of the majority. It just seems to me that we need a better institutional mechanism to promote negotiation and compromise.
That's a good point. I tend to overlook Locke's flaws because the founders were able to correct them, at least to some extent. He provides a framework, but it's only a start.
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