locke ii
His Account of a Legitimate Regime
§1. Resistance under a Mixed Constitution
1.Recall that in Lecture I, Locke was contrasted with Hobbes. Hobbes is concerned with the problem of destructive civil war, and he uses the idea of the social contract as a point of view from which to argue that given our basic interests, including our transcendent religious interest in salvation, all have sufficient reasons (based on those interests) to support an effective and, in Hobbes’s view, necessarily absolute sovereign, whenever such a sovereign exists (Locke Lecture I: §1.3).
Locke’s aim is very different. He wants to defend the cause of the first Whigs in the Exclusion Crisis of 1679–81.1 His problem is to formulate the right of resistance to the Crown under a mixed constitution, as the English Constitution was then regarded. Locke’s argument is that Charles II, by his abuse of the prerogative2 and other powers, has conducted himself as an absolute monarch and has thereby dissolved the regime, so that all of its powers, including those of Parliament, return to the people. Government is a fiduciary power, a power held on trust from the people under the social compact; and when that trust is violated, the people’s constituent power (as I shall call it) once again comes into play.
2.To explain: let’s define a mixed constitution as one in which two or more constitutional agents share in the legislative power; in the English case these agents are the Crown and Parliament. Neither is supreme: rather
1.For a long time, it was assumed that the Second Treatise was written after the revolution of 1688, as a justification of it. According to Laslett, however, the original part of the Second Treatise was written in 1679–80 and includes Chs. 2–7, 10–14, and 19, with other chapters added later, some in 1681 and 1683, and others later in 1689. See Laslett’s Introduction to Two Treatises of Government, p. 65.
2.The power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is called the Prerogative. See ¶160.
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they are coordinate powers. Legislation cannot be enacted without the Crown’s consent, as the Crown must approve proposed statutes before they become law. On the other hand, the Crown cannot govern without Parliament, on whom it depends for tax monies to run the government bureaucracy, support the army, and so on. And it is the duty of the Crown to enforce the laws enacted by Parliament with its approval, as well as to conduct foreign affairs and defense. The Crown combines what Locke calls the executive and the federative powers.
Thus, we have two constitutional agents who, as coordinate powers, are equal in this sense: neither is subordinate to the other and when there is a conflict between them, there is no constitutional means, no legal framework within the constitution, for settling the conflict. Locke recognizes this clearly in ¶168, the important paragraph that ends Chapter 14. Here he asserts the right of resistance on the part of the people in such a situation.
The source of Locke’s constitutional doctrine seems to be a work by George Lawson: Politica sacra et civilis (Religious and Civil Polity) of 1657 (published in 1660).3 Lawson’s view is that when in a mixed constitution there is a persistent conflict between Crown and Parliament, the government itself is dissolved and all of its powers return to the political community as a whole. The people are then free to exercise their constituent power and to take the necessary steps to eliminate the conflict and to restore the traditional constitution, or else to establish a new and different form of regime. Locke’s first statement of Lawson’s view is in ¶149, which must be read with the four paragraphs (¶¶150–153) that follow. Observe that Locke is very careful to say that the Crown is a coordinate power with a share in the legislative power and not subject to laws without its own consent. Thus in “a tolerable sense” the Crown may be called “supreme” (¶151). This was the Whig view then widely held, and differs from the later doctrine of parliamentary supremacy.
3. Locke uses the idea of the social compact (a term he often uses) as a point of view from which we can see how a mixed regime could legitimately arise. The original compact, or compact of society, unites the people into one society and at the same time establishes a form of regime with political authority.
Two points about this: first, the social compact is unanimous, for in vir-
3. On Lawson, an innovative figure, see the excellent study by Julian Franklin, Locke’s Theory of Sovereignty (Cambridge: Cambridge University Press, 1978), Ch. 3. On this see esp. pp. 69–81.
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tue of it all join into one civil society for the purpose of establishing a political regime; second, political power in the form determined by the majority is a fiduciary power entrusted for certain ends (¶149). The compact of society is, then, a compact of the people with each other to establish a government; it is not a compact between the people and the government or its agents. That the legislative power is a fiduciary power emphasizes that the constituent power of the people always exists and cannot be alienated. In the case of a conflict between constitutional powers, or between the government and the people, it is the people who are to judge (¶168). In doing so they exercise once again their constituent power. If the Crown or Parliament arouse the people to action, Locke says they have only themselves to blame (¶¶225–230).
§2. Locke’s Fundamental Thesis concerning Legitimacy
1. I now turn to Locke’s fundamental thesis about how the doctrine of the social compact imposes limits on the nature of legitimate regimes. The basic idea of this doctrine—that legitimate political power can only be founded on consent—is repeated throughout the Second Treatise. The statement in ¶95 is suitable for our purposes. It reads in part:
Men being, as has been said, by Nature, all free, equal and independent, no one can be put out of this Estate, and subjected to the Political Power of another, without his own Consent. The only way whereby any one divests himself of his Natural Liberty, and puts on the bonds of Civil Society is by agreeing with other Men to join and unite into a Community for their comfortable, safe, and peaceable living one amongst another, in a secure Enjoyment of their Properties, and a greater Security against any that are not of it. This any number of Men may do, because it injures not the Freedom of the rest . . . When any number of men have so consented to make one Community or Government, they are thereby presently incorporated, and make one Body Politic, wherein the Majority have a Right to act and conclude the rest.
Note that in this passage Locke is describing what we may call “originating” as opposed to “joining” consent. Originating consent is that consent given by those who initially establish one body politic through a social
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His Account of a Legitimate Regime
compact; whereas joining consent is that given by individuals as they reach the age of reason and consent to join this or that existing political community. This distinction is important when we note Hume’s criticism of Locke in “Of the Original Contract” (1752). Locke takes for granted that we can subject ourselves to political authority by our own consent. His thesis is rather that, regarding the state of nature as a state of equal freedom, we can become subject to political authority in no other way. Thus, as we shall see, absolute government is always illegitimate.
2.To develop Locke’s view, recall his definition of political power: “a Right of making Laws with Penalties of Death, and consequently all less Penalties, for the Regulating and Preserving of Property, and of employing the force of the Community, in the Execution of such Laws, and in the defense of the Commonwealth from Foreign Injury, and all this only for the Public Good” (¶3).
As this definition shows, political power is not strength or force but a complex of rights possessed by a political regime. Of course, to be effective, such a regime must have coercive, or sanctioning power—that is, the right, suitably limited, to exercise force and to impose sanctions to enforce laws, and so on. But for Locke, political power is a form of legitimate authority appropriately related to the state of equal freedom and bounded by the fundamental law of nature.
3.Note that Locke’s thesis that the only basis of legitimate government is consent applies only to political authority. He does not hold what we might call a consensual (or contractualist) account of duties and obligations generally.4 Many of the duties and obligations he recognizes do not arise from consent:
(a) To start with the most obvious case: our duties to God arise from God’s right of creation; it would be sacrilegious—indeed preposterous—to suppose they arise from consent. The same holds for our duty to comply with the laws of nature and all the duties and obligations that follow from it. More specifically:
(b) Our duty to honor and respect our parents (as discussed in Ch. 6 on Paternal Power) is not consensual; and moreover, this duty is perpetual.
4.An example of such a view, although it must be carefully interpreted, is T. M.
Scanlon’s contractualism. See his essay in Utilitarianism and Beyond, ed. Amartya Sen and Bernard Williams (Cambridge: Cambridge University Press, 1982); also his book What We Owe to Each Other (Cambridge, Mass.: Harvard University Press, 1998).
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Not even a king is released from his duty to honor and respect his mother (¶¶66, 68). Thus, while our reaching the age of reason brings to an end our subjection to parental authority, it does not affect certain other duties and obligations we owe our parents.
(c)The duty to respect the (real) property of another in a state of na- ture—land, its fruits, etc.—does not arise from consent, but from the precepts of natural law that apply in that state in accordance with the laws of nature, as I discussed in the first lecture. Here we assume that these precepts are generally followed and that people’s properties, for example real properties, are acquired legitimately, and that the various provisos (stated by Locke in Ch. 5) have been satisfied.
(d)Finally, the fundamental law of nature imposes a duty to give special weight to the safety of the innocent (the righteous or just) (¶16). In ¶183 Locke argues that a victor, even in a just war of self-defense in which the victor’s actions are entirely justified, must recognize the claims of the wives and children of those who unjustly made war against him. They are among the innocent; and the victor must also recognize what Locke calls the “native right” of the defeated to be free in their own persons and to continue to own their own properties and to inherit their father’s goods, assuming they did not wrongfully assist the loser (¶¶190–194). These rights the victor must recognize are rooted in the fundamental law of nature.
There are many duties and obligations, then, that do not arise from consent. With the exception of duties and obligations arising from the principle of fidelity (keeping one’s promises and other commitments), all of them can, I believe, be seen as consequences of the fundamental law of nature under certain conditions. And, of course, as we have said, our being bound by that law does not arise from consent, nor of course does our duty to God.
4. At this point it may seem that Locke proceeds as though his fundamental thesis about consent as the origin of political power were obvious. Indeed, it does have an obvious ring about it: how else, we might ask, could free and equal persons—all being equally endowed with reason and having equal jurisdiction over themselves—become the subjects of such an authority unless by their free consent? Compare the case of free and equal sovereign nations: how can they become bound to some one of themselves unless, say by treaty, they give their free consent?
But however plausible Locke’s thesis might be, he does not just say that it is obvious. His reasoning in the Second Treatise can be seen as an argu-
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ment by cases as follows: the basic law is the fundamental law of nature, and we must justify every power and liberty, every right or duty, in our political relationships by reference to that law, together with the principle of fidelity.
The idea is that we enumerate the various powers and rights that we accept in everyday life, and that might offhand be the foundation of political authority. For example, the right of (real) property, parental power, and the right of a victor in a just war, each of which Locke discusses. Then it is plain, Locke thinks, that none of these powers and rights can be the foundation of political authority. Rather, each of these powers and rights is suited for certain ends of different forms of association under certain special conditions, conditions which sometimes hold in the state of nature, sometimes in society, and sometimes in both. His idea is that different forms of association have different forms of authority (see ¶83, last sentence). They give rise to other kinds of authority with different powers and rights. We must look for another way to establish legitimate political authority.
5.To illustrate, consider the case of parental authority. This is sufficiently comprehensive in scope to look in some ways like political power. Filmer, in Patriarcha, argued that all political authority has Adam’s paternal authority, originally given by God, as its source. Against Filmer, Locke holds that the authority of parents over their children is temporary. We are all born to a state of perfect liberty and equality even if we are not born in it (¶55). Until we reach the age of reason some one must act as our guardian or trustee, and make the decisions required to secure our good and to prepare us for assuming our rightful freedom at the age of reason, at which time parental power ceases. The point of Locke’s account of parental power is to show, against Filmer, how it arises from our immaturity and ends with our coming of age, and that it cannot give rise to political power.5
6.In the next lecture, I shall discuss Locke’s account of the right of
5. A feature of Locke’s view is that he sometimes treats women as equals with men, for example, as equals with their husbands, as in ¶65, Second Treatise. Susan Okin, in her Women in Western Political Thought (Princeton: Princeton University Press, 1979), pp. 199ff, argues that Locke does this only when it suits his case against Filmer’s patriarchalism. Thus, within the family, when husband and wife disagree, it is the husband who has authority: “. . . it naturally falls to the Man’s share, as the abler and stronger.” Two Treatises: II: ¶82; see also I: ¶47. There is no idea of even considering whether women have equal political rights.
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