His Account of a Legitimate Regime

right of resistance to an illegitimate and sufficiently unjust regime when the likelihood is great enough that resistance will be effective and that a legitimate regime will be established in its stead without great loss of innocent life.

Here, of course, we have to balance imponderables: How great must the likelihood be? How unjust the regime?—and much else. These questions have no precise answers and depend, as one says, on judgment. Political philosophy cannot formulate a precise procedure of judgment; and this should be expressly and repeatedly stated. What it may provide is a guiding framework for deliberation to be tested by reflection. Such a framework may include some fairly definite listing of the more relevant considerations as well as some indication of their relative weight when they conflict, as they are bound to do. There is no avoiding, then, having to reach a complex judgment weighing many imponderables, about which reasonable persons are bound to differ. This is a paradigm case of what I have called “the burdens of judgment”: the sources of reasonable disagreement among reasonable persons.11

§5. Constituent Power and the Dissolution of Government

1. There are three potentially very radical ideas in Locke. One we have just surveyed, namely, the idea of the state of nature as a state of perfect freedom and equal political jurisdiction, and the incorporation of this idea in the criterion of a legitimate political regime.

The second idea is that of the constituent power of the people to establish the institutional form of the legislative power to which they entrust the regulation of their political life for the public good. Included in this idea is the further idea that, in a mixed constitution, whenever one of the coordinate constitutional agents—either the Crown or Parliament—violates its trust, the government is dissolved. In this case the people have the power to constitute a new frame of government and to depose those who have violated their trust.

11. On the idea of the burdens of judgment, see Rawls, Justice as Fairness: A Restatement, pp. 35–36; also Rawls, Political Liberalism (New York: Columbia University Press, 1993), pp. 54–58.

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l o c k e

2.Let us now review some points about the idea of constituent power, as it is basic for the idea of constitutional government.

(a) Constitutional government makes the fundamental distinction between constituent and ordinary power (or as Lawson said in Politica Sacra et Civilis, between real and personal power). Constituent power is the power (the right) to determine the form of government, the constitution itself; ordinary power is the power (the right) exercised by officers of the government under the constitution in the everyday course of political affairs. Constitutional politics is the exercise of constituent power (say, mobilizing the electorate to amend the constitution); ordinary politics is the exercise of ordinary power (say, urging Parliament, or Congress, to enact laws; or judges deciding cases).12

(b) In this doctrine there is no contract of government, that is, a contract between the Crown and the legislative on the one side, and the people on the other. The social compact, for Locke, is an agreement entered into by the people as individuals with each other: they each make an agreement with the rest, and this agreement is unanimous. All agree to join into one society to be governed by a political regime. The form of this regime is whatever the majority of them shall determine is appropriate, given the present and foreseeable circumstances of society.

(c) The majority entrusts to this regime the exercise of ordinary political authority. Thus, it should be stressed that political power in Locke is a fiduciary power, a trust. If it is asked who is to decide whether those exercising ordinary power violate their trust, the answer must be that it is the people who must decide (¶¶149, 168, 240–243).

3.Finally, while Locke thought that Charles II had in effect dissolved the government by exceeding his prerogative and other powers, he says nothing about how the people (society as a whole) are to act, or through what institutions they are to exercise their constituent power. We might ask, “Who are the people and how can they act?” Locke gives no account of these matters.

12. On the distinction between constitutional and ordinary politics, see Bruce Ackerman’s important work, We the People (Cambridge, Mass.: Harvard University Press, 1991); Vol. I, Chs. 1–3 give the general idea; the whole is good. In his view, the three main eras of American constitutional politics are the period of the Founding, the period of the Civil War amendments, and the period of the New Deal. Modulo matters of interpretation, there are these three different, though of course related, constitutions.

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His Account of a Legitimate Regime

Lawson, again in Politica Sacra et Civilis, held that the community as a people—a nation—is not dissolved by civil war so long as there remains in it a sufficient will to reestablish a legitimate regime by the people’s exercise of their constituent power. He seems to have thought of the community as acting through the county courts at the local level to organize a meeting of the people’s representatives to act as a constitutional convention. Such a convention would, of course, make use of parliamentary forms and procedures, but it would not be a parliament. As a convention of the community’s representatives, it would have constituent power to establish a new form of regime, which if accepted by the community, would be legitimate.13

Presumably Locke’s views were similar to this, but in 1689 such views were rejected by his fellow Whigs as far too radical. I shall not pursue these matters here. The relevant point for our purposes is that the idea of the constituent power of the people and of the dissolution of government must remain indeterminate and indeed a rather unsettling idea until it is embodied in a definite way in institutions.

Thus, consider the distinction in our Constitution between the ordinary powers of elected and appointed officials, and the constituent powers exercised by the electorate in passing amendments to the Constitution and by a constitutional convention, and in the whole procedure to which such a convention belongs. These last arrangements are necessary to give institutional expression to the idea of the people’s constituent power, and they are an essential part of a fully developed constitutional regime. But historically this comes later. The first constitutional convention seems to have been in Massachusetts in 1780. It is an American invention.14

There is a third potentially radical idea in Locke, the idea that the right of property is founded on labor. We touch on this in the next lecture.

13.Julian Franklin, John Locke and the Theory of Sovereignty (New York: Cambridge University Press, 1978), discusses this on pp. 73ff.

14.See Leonard Levy, editor with introduction: Essays on the Making of the Constitution, 2nd ed. (Oxford: Oxford University Press, 1987), p. xxi.

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locke iii

Property and the Class State

§1. Problem Stated

1. I now take up Locke’s account of property and the problem to which it gives rise. This problem can be stated as follows: Locke thought his social contract doctrine supported a constitutional state with the rule of law and a representative body sharing supreme legislative authority with the Crown. However, in this state only people who have a certain amount of property can vote. These owners of property are, let’s say, active (vs. passive) citizens: they alone, among citizens, exercise political authority.

The problem now arises whether this constitutional though class state is consistent with Locke’s social contract doctrine. On our interpretation, we ask whether a class state could arise by free consent in the course of ideal history. Recall that ideal history begins from the state of nature as a state of equal jurisdiction in which everyone acts reasonably and rationally. It has seemed to some, for example, to C. B. MacPherson,1 that the class state is inconsistent with Locke’s doctrine about how legitimate political authority can arise.

Before proceeding I should say that it is not Locke’s concern to justify private property. This is because in the audience he is addressing there is no dispute about it. That ownership of property is justified is taken for granted. Locke’s task is to explain how this widely accepted institution can be accounted for, shown to be right, within his social contract doctrine. Many of the details of Chapter 5 of the Second Treatise are to fill in this story; to demonstrate, as against Filmer, that the contract view accords with common opinion.

1. See C. B. MacPherson, The Political Theory of Possessive Individualism (Oxford: Oxford University Press, 1962).

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Property and the Class State

2.A comment on MacPherson: he believes that unequal political rights arise in Locke only because Locke does not view those without property as parties to the original compact. He attributes to Locke the idea that those without property, being brutish and callous, are not capable of being reasonable and rational, and so they are not capable of giving their consent. Very little in the text of the Two Treatises supports this contention, so why does MacPherson hold it? The answer may be that he thinks it simply obvious that if those without property were parties to the original compact, they would not, assuming them to be reasonable and rational, consent to the unequal political rights of the class state. Thus he may think Locke must have excluded them as incompetent and incapable of reason.

Now, if this is MacPherson’s reasoning, it overlooks a central point about all agreements, from social compacts to contracts in everyday life: namely, that in general, their specific terms depend on the relative bargaining positions of the parties outside the situation in which the terms of the contract are being discussed. The fact that the parties are equal in certain fundamental respects (with equal jurisdiction over themselves, equal sovereigns, as it were) does not imply that all the terms of the social compact must also be equal. Rather, these terms may be unequal, depending on the distribution of property among the parties, as well as on their aims and interests in entering the agreement.2 This is precisely what seems to happen in Locke’s form of the social contract view.

3.If we are unhappy with Locke’s class state, and still want to affirm some form of contract doctrine, we must find a way to revise the doctrine so as to exclude the unwanted inequalities in basic rights and liberties. Justice as fairness has a way of doing this: it uses the original position as a device of representation. The veil of ignorance limits information about bargaining advantages outside that contractual situation.3 Of course, other ways may be superior; or perhaps no revisions of the social contract view will prove satisfactory, once we have considered them thoroughly.

In these lectures I am trying to think through a few political conceptions, all the way through, if possible. This, and not the specific things we go over (though I hope they are not trivial) is the justification of our narrow focus. The idea of thinking political conceptions through is less famil-

2.These points are made by Joshua Cohen, “Structure, Choice and Legitimacy: Locke’s Theory of the State,” Philosophy and Public Affairs, Fall 1986, pp. 310f.

3.Rawls, Justice as Fairness: A Restatement; see §6.

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