LINEBURG


<< . .

 14
( 38)



. . >>

superior power, Locke still attributes the obligation to obey civil law to
the law of nature, which “decrees that princes and a lawmaker, or a
superior by whatever name you call him, should be obeyed.”66 Thus,
“all obligation leads back to God”67 because Locke provided no adequate

65 66
Essays on the Law of Nature, 119. Ibid., 189.
67
Ibid., 183. For a very illuminating discussion of Locke™s religious views, see Richard
Ashcraft, “Faith and Knowledge in Locke™s Philosophy,” in John Locke: Problems and
Perspectives, ed. J. W. Yolton (Cambridge: Cambridge University Press, 1969), 194“223.
A similar emphasis on Locke™s religious faith appears in John Dunn, The Political
Thought of John Locke (Cambridge: Cambridge University Press, 1969).
John Locke 123
account of authorization. Just how any lawmaker acquires his superiority
remains a mystery.
Locke rests obligation on what human beings do or think only when he
confounds obligation with power. That appears both when he makes the
power to enforce its requirements an intrinsic part of law, and when, in
the course of arguing that the majority within the community has a “right
to act and conclude the rest,”68 he speaks of the majority™s “power.”
However, he seems to equate power with mechanical force in saying that
the power of the community “to Act as one Body” is given only by the will
of the majority because the “Body Politick” will “move that way whither
the greater force carries it, which is the consent of the majority.”69 Since
authorization plays no part in Locke™s understanding of civil society, it is
not procedural correctness that determines whether the governing body
can oblige obedience, but rather whether the governing body has dis-
charged its “trust.” The immediate test for the validity of law is whether it
is made by the legislature because only laws made by the legislative body
can have the consent of the people.70 The power of the legislative body is
not limited, however, by law but by “the publick good of the Society.”71
Therefore, the legislative body cannot oblige obedience from the people
unless its acts are “pursuant to their trust.”72 The legislature is accord-
ingly described as a “Fiduciary power to act for certain ends. . . all Power
given with trust for the attaining an end. . . whenever that end is manifestly
neglected, or opposed, the trust must necessarily be forfeited, and the
Power devolve into the hands of those that gave it, who may place it
anew where they shall think best for their safety and security.”73
In a relationship of trust as in a relationship of authority, one person
acts for others, but the nature of the action to be taken and the assign-
ment of the task are different. In authorization the obligation is to abide
by the conditions of the office one holds; one™s duties are prescribed by
the rules defining the office. In a trust the obligation is to achieve a
designated objective. An authorized officer has the “right” to take certain
decisions; a trustee has a “duty” to perform a particular task, such as
managing an estate for the profit of the beneficiary. Whereas authoriza-
tion is a substitutional relationship, a trust is an instrumental relationship.
The power given with a trust is for the attaining of an end designated by
the trustor™s instructions. No such requirement defines the powers of an
authorized officer. If officers observe the rules defining their office, they
cannot be accused of violating their authority even though they may have


68 69 70
Locke,Two Treatises, 349. Ibid., 349“50. Ibid., 374.
71 72 73
Ibid., 375. Ibid., 374. Ibid., 385.
124 The modern quest

acted unwisely or ineffectively. But if trustees act unwisely or ineffectively,
they violate their trust. If parliament is authorized to make or alter the
laws of the realm, there are two distinct questions to ask about its
activities: Have the appropriate rules and procedures been observed?
Are the conclusions reached desirable? The former is a legal question,
the latter a political one. In Locke™s account the legal question disappears,
and there is only one question “ whether parliament has acted effectively
to achieve the task entrusted to it.
That Locke should regard governing as a trust is in keeping with his
theory of natural law. Since the purpose of governing is quite precisely
given by the law of nature as Locke understands it, the problem of ruling
in civil society is not how to unite a multitude of diverse wills, or how,
given the variety of opinion and wants, to determine what the public good
requires. It is the much simpler problem of how to achieve what everyone
knows ought to be done. The legislature is entrusted with power so that it
may pursue a known end.
Although the legal idea of trust is a distinctively English idea that first
appeared at the end of the fourteenth century,74 Locke™s description of
legislative power as a trust is undoubtedly odd, and he appears to recog-
nize as much when he says that the trust may be “tacit.” Whereas a proper
legal trust involves three parties, the trustor, the trustee, and the benefi-
ciary, in Locke™s account of political trust there are only two parties since
the people are both trustor and beneficiary.75 On the whole most students
would agree with Dicey that “Nothing is more certain than that no
English judge ever conceded, or, under the present constitution, can
concede, that Parliament is in any legal sense a ˜trustee™ for the electors.
Of such a feigned ˜trust™ the Courts know nothing.”76 But whatever the
constitutional authenticity of Locke™s notion of trust, there can be no
doubt that where the government is understood in this fashion, the laws
that it makes have the character of an instrument. Thus, John Austin
(cf. chapter 8), who had a similarly instrumental view of law, also took up
the idea of trust.77
Understanding governing as a trust and law as an instrument for
serving that trust excludes any conception of civil society as an association

74
See F. W. Maitland, Selected Essays, ed. H. D. Hazeltine, G. Lapsley, and P. H. Winfield
(Cambridge: Cambridge University Press, 1936), 141“222.
75
Otto Gerke, Natural Law and the Theory of Society: 1500“1800, trans. Ernest Barker
(Boston: Beacon, 1960), xxvi“xxx, 299“300; J. W. Gough, John Locke™s Political
Philosophy (Oxford: Clarendon, 1956), 143“47.
76
A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London:
MacMillan, 1927), 73.
77
John Austin, The Province of Jurisprudence Determined, with an introduction by H. L. A.
Hart (New York: Noonday Press, 1954), 231.
John Locke 125
of independent agents pursuing diverse ends who wish to retain their
autonomy. The rights of individuals are instruments for achieving the
public good. Even in his arguments for toleration, it is ultimately
the public good that is Locke™s criterion for how far the magistrate™s
power should extend.78 That explains why Locke never describes civil
society as an “association,” but rather as “one coherent living Body,”
or as the “Body Politick.” And that is in keeping with his description of
the law as a provision for preserving “Mankind in general” and transgres-
sions of it as “a trespass against the whole Species.”79 Instead of saying, as
did Hobbes, that the will of the sovereign is substituted for the wills of
those who have covenanted to enter into civil association, Locke says that
civil society has an “Essence and Union,” which consists not merely of
“mutual Influence, Sympathy and Connexion” among its members, but in
their having “one Will,” which is in the keeping of the legislative.80
That Locke™s use of the organic metaphor is not merely ornamental
or an insignificant adoption of a medieval image is evident in what he says
about the regulation of property. There is nothing unusual in Locke™s
description of the object of government as “the Regulating and Preserving
of Property, and of employing the force of the Community, in the Execu-
tion of such Laws, and in the defense of the common-wealth from Foreign
Injury, and all this only for the Publick Good.”81 The “Regulating and
Preserving of Property” and serving the “Publick Good” are abstract
aims, that cannot determine concretely what is to be done until they
are interpreted for particular circumstances by political deliberation.
That Locke meant something else, however, is suggested not only by
his indifference to the problem of deriving practical conclusions from
general prescriptions, but also by what he says about the duty to regulate
property.
It is an obligation of government because “subduing or cultivating
the Earth”82 is a duty assigned by God, who “gave the World. . . to the
use of the Industrious and Rational.”83 Locke tells us also that men are
obliged “to promote the great Design of God, Increase and Multiply,”84
that “numbers of men are to be prefered to largenesse of dominions,” and
that “the increase of lands and the right imploying of them is the great art
of government.”85 The right of individuals to private possession is not, for
Locke, fundamental, but a corollary of the “fundamental Law of Nature,”
which is “the preservation of Mankind.”86 Each man™s fear of death does
not figure in Locke™s concern with civil peace because he takes God not to

78 79 80
Locke, Two Treatises, 353“54. Ibid., 425, 349, 290. Ibid., 425.
81 82 83 84
Ibid., 286. Ibid., 310. Ibid., 309. Ibid., 188.
85 86
Ibid., 315“16. Ibid., 376.
126 The modern quest

be commanding the individual to seek self-preservation, as Hobbes does,
but to be concerned with the survival of the human species. Thus, private
property, even if only in the sense of private use of land, is a natural right
because otherwise men would not labor to produce enough to preserve
mankind. Because this is the given purpose for the acquisition of prop-
erty, the law of nature prohibits any man from acquiring more than he
can consume, since otherwise the rest would be wasted and denied to
those who needed it.
It follows that once men invented money, which made it possible
for individuals to accumulate more than they could consume without
any danger of its going to waste, the government had a duty to regulate
and limit property so as to ensure that all had enough. So in An
Essay Concerning Toleration of 1667, Locke writes: “The magistrate
having a power to appoint ways of transferring proprieties from one
man to another, may establish any, so they be universal, equal and
without violence and suited to the welfare of that society.”87 In A Letter
Concerning Toleration of 1689 he says: “It is the duty of the civil magis-
trate, by the impartial execution of equal laws, to secure unto all
the people in general, and to every one of his subjects in particular, the
just possession of these things belonging to this life.”88 Von Leyden
suggests that in this latter passage Locke sanctioned the redistribution
of property by government.89 Even if that contention is disputed, it must
be acknowledged, as Laslett90 points out, that Locke never withdrew
nor contradicted those statements. Whether or not Locke recommended
control of credit and prices, or whether measures such as nationalization
could be justified on his principles, as has been suggested by Laslett,
Kendall, and von Leyden, there is nothing in Locke™s understanding of
law to prevent the use of legislation to do whatever the majority of the
society considers desirable in order to subdue and cultivate the earth as
God commands.
Civil society, as Locke understands it, is thus an association with a
given purpose, and law is the appropriate instrument for achieving that
purpose. Locke never speaks of law as a set of adverbial conditions that
ought not to direct anyone™s behavior. On the contrary, he claims laws
should indicate considerations that must be taken into account when
deciding what to do. There is no suggestion in Locke™s writing for
making the traditional distinction between laws imposing taxation, which

87 88
Ibid., 366, see footnote for §120. Works, vol. V, 10.
89
W. von Leyden, Hobbes and Locke: The Politics of Freedom and Obligation (London:
MacMillan, 1981), 108.
90
Locke, Two Treatises, 104.
John Locke 127
command the performance of certain actions, and contract law, which
stipulates the conditions for making a contract that can be defended at
law, but which does not oblige anyone ever to make a contract. Nor is any
of this surprising because an instrumental view of law is inseparable from
regarding the power of government as a trust rather than as an author-
ization. If, as in Locke™s view, the government is entrusted with power for
the sake of attaining a given end, what matters is whether that trust has
been effectively discharged. Whether the rules have been adequately
observed is unimportant or significant only insofar as it aids or hinders
discharging the trust. That this was Locke™s view of law is obvious in what
he says about both adjudication and prerogative.
The independence of the judiciary did not concern him. He speaks
of legislation and adjudication as one: The duties of the legislature are,
he says, a power to “decide the Rights of the Subject by promulgated
standing Laws, and known Authoris™d Judges.”91 He describes the legisla-
ture also as a “Judge on Earth, with Authority to determine all the
Controversies.”92 And he couples legislation with adjudication as if they
were aspects of one power: in civil society men have “a common estab-
lish™d Law and Judicature to appeal to.”93 At the same time, he attributes
a judicial power also to the executive, and besides couples the executive
power with the legislative when he derives civil society from the right of
every man in the state of nature to judge and punish violations of the law
of nature. There is not the slightest suggestion that adjudication has to be
kept separate in the statement, “herein we have the original of the Legis-
lative and Executive Power of Civil Society, which is to judge by standing
Laws.”94 Instead of seeing adjudication as a distinct legal procedure,
Locke regards it as a “pervasive feature” of civil society.95
Locke™s indifference to the independence of adjudication is consistent
with both his blindness to the character of practical reasoning and
his view of government as a trust. If law is understood as the foundation
of authority, it is essential to keep the rules fixed, and adjudication is
needed to interpret fixed rules for different circumstances. To ensure that
the rules are made and changed only by those who are authorized to do so
and that the law is not changed for particular cases, adjudication and the
enforcement of law have to be kept separate from legislation. In other
words, regard for the independence of the judiciary is part of a regard
for the formalities of law. But those formalities are unimportant for
Locke because he does not regard the rule of law as a set of procedures


91 92 93 94
Ibid., 376. Ibid., 343. Ibid., 342. Ibid., 343.
95
Von Leyden, Hobbes and Locke, 126.
128 The modern quest

that enables people who do not wish to obliterate their disagreements to
settle them amicably. Instead, Locke sees the law as a set of instructions
for performing the right actions. What determines their rightness is
whether they allow the human species to flourish. Since the law is an
instrument for achieving a goal, whose desirability is indisputable because
it has been designated for man by a superior will, the only thing that
matters is the effectiveness of the law for achieving its object. That is why
Locke holds that “Law, in its true Notion, is not so much the Limitation
as the direction of a free and intelligent Agent to his proper Interest.”96
That Locke values the rule of law not for its own sake, but rather as the
most effective instrument for achieving desirable consequences, is even
clearer in his discussion of prerogative. He defines prerogative as the
“Power to act according to discretion, for the publick good, without
the prescription of the Law, and sometimes even against it.”97 And he
gives the same reason for the right of the people to grant or enlarge the
prince™s prerogative as for their right to limit it: “whatsoever shall be done
manifestly for the good of the People, and the establishing the Govern-
ment upon its true Foundations, is, and always will be just Prerogative.”98
These are not chance remarks: the same view is repeated in different
contexts. Locke explains, for instance, that since “a Rational Creature”
would not willingly subject himself to another “for his own harm,” when
he “finds a good and wise ruler, he may not perhaps think it either
necessary, or useful to set precise Bounds to his Power in all things.” It
is entirely reasonable for the people to permit their rulers to “do several
things of their own free choice,” not only where the law is silent, but
“sometimes too against the direct Letter of the Law.”99
Of course, all admirers of the rule of law have acknowledged that
occasions may arise where the law has no answer or gives an answer so
violently unsuitable that it must be ignored. To provide for such occa-
sions, even the strictest of constitutions grants emergency powers in some
form or other, for times of peace as well as war. Besides, it is always
acknowledged that managing relations with other states requires a large
degree of discretion. And if that were all that Locke had in mind when
he insisted upon the importance of prerogative, he would be saying
nothing remarkable. But in fact he is not merely making the traditional
qualifications on the rule of law. He assigns the discretion required for
dealing with foreign affairs to the “federative” branch of government; the
power that he discusses in connection with prerogative belongs to the


96 97
Locke, Two Treatises, 323. Ibid., 393.
98 99
Ibid., 391. Ibid., 395.
John Locke 129
executive. Moreover, the necessity for ignoring the law at times is
not something that Locke deplores; on the contrary, he assumes that
the law is there to be observed only insofar as it serves the public good
(understood as a project for ensuring that the species flourishes) and
that whenever the public can be served better by other means, the law
becomes otiose.
He accordingly explains that there is no reason in the abstract for
suspecting prerogative, claiming that the English people have tradition-
ally been tolerant of prerogative because it is a power to do good: They
“are very seldom, or never scrupulous, or nice in the point,” and ques-
tioning of “Prerogative, whilst it is in any tolerable degree imploy™d for
the use it was meant; that is, for the good of the People, and not
manifestly against it.”100 The people have never “contested” what “was
done without law”; on the contrary, they have acquiesced in whatever the
prince did, regardless of whether it was done “contrary to the Letter of the
Law” or how much it enlarged the prince™s prerogative, as long as it
served the public good. They would not limit the prerogative of “those
Kings or rulers, who themselves transgressed not the Bounds of the
publick good. For Prerogative is nothing but the Power of doing publick
good without a Rule.”101 Where a dispute arises between the executive
power and the people about a claim to prerogative, “the tendency of the
exercise of such Prerogative to the good or hurt of the People, will easily
decide that Question.”102 When the people are blessed with a good prince
who discharges his trust faithfully, he “cannot have too much Prerogative,
that is, Power to do Good.” And conversely, when the prince turns out to
be a poor trustee, the people are justified in limiting his power. Merely
changing the extent of the prerogative in either direction is no cause for
complaint since “the end of government being the good of the Commu-
nity, whatsoever alterations are made in it, tending to that end, cannot be
an incroachment upon any body. . . And those only are incroachments
which prejudice or hinder the publick good.”103
Locke™s view of prerogative is wholly consistent with his theory of
natural law as well as with his view of government as a trust, since on
neither ground is the rule of law the constituent of civil society or valued
for its own sake. The rule of law is merely an instrument designed to serve
a given purpose, and whether or not an instrument should be employed
depends entirely on how well it can serve its purpose.
In keeping with this depreciation of law, Locke sanctions a right of
resistance to governments that fail to promote the public good. There

100 101
Ibid., 393. Ibid., 395“96.
102 103
Ibid., 393. Ibid., 394“95.
130 The modern quest

would be nothing unusual in his discussion of resistance if Locke had
argued merely that there are occasions when men might be justified in
refusing to obey the established law. That in some circumstances rebellion
might be justified has generally been granted by defenders of the rule
of law, even, as we have seen, by St. Thomas Aquinas. The novelty in
Locke™s argument is that he insists on a “right” to resist unjust law. And
that is consistent with what he says about the desirability of prerogative
because the object that justifies both is the same, promoting the public
good. If the legislature is entrusted with power so that it may pursue a
known end, then it follows that when those who have entrusted this power
find that the legislature has acted contrary to the trust reposed in it, they
are entitled to “place it anew where they shall think best for their safety
and security.”104
Earlier on, in his Tracts on Government, Locke did not recognize any
right to resistance, arguing that if the magistrate abused his powers, it was
for God to punish him. Nor did Locke ever withdraw the arguments that
he made in the Tracts against claims to a right of disobedience based on
conscience. When writing later about toleration, he argues that “a toler-
ation of men in all that which they pretend out of conscience they cannot
submit to will wholly take away all the civil laws and all the magistrate™s
powers, and so there will be no law nor government.” In a letter of 1660
he altogether repudiates any sanction for resistance. Having from early
childhood found himself “in a storm, which has lasted almost hitherto,”
he now felt bound “both in duty and gratitude to endeavour the continu-
ance of such a blessing by disposing men™s minds to obedience to that
government which has brought with it the quiet settlement which even
our giddy folly had put beyond the reach not only of our contrivance
but hopes.”105 Nevertheless, in the Second Treatise Locke argues persist-
ently and firmly for a “Right” to resist “the Exercise of a power without
right.”106 Whereas in the Tracts he emphasizes the gulf between the ruler
and the multitude “whom knowing men have always found and therefore
called beasts.”107 In the Treatise Locke declares rulers to be just as
vulnerable as any of their subjects to using “force the way of Beasts.”108
In the course of defending the right to resistance, Locke occasionally
comes close to speaking as if authorization is the ground of government.
He says, for instance, that when “Oaths of Allegiance and Fealty” are
taken to the supreme executive, “tis not to him as Supream Legislator, but
as Supream Executor of the Law. . . Allegiance being nothing but an
Obedience according to Law, which when he violates, he has no right to

104 105
Ibid., 385. Two Tracts, 102; cf. Political Philosophy, 178.
106 107 108
Two Treatises, 397. Two Tracts, 158. Two Treatises, 407.
John Locke 131
Obedience, nor can claim it otherwise than as the publick Person vested
with the Power of the Law, and so is to be consider™d as the Image,
Phantom, or Representative of the Commonwealth, acted by the will
of the Society, declared in its Laws; and thus he has no Will, no Power,
but that of the Law.”109 In the same spirit, a tyrant is defined as one
who “makes not the Law, but his Will, the Rule,”110 who “exceeds the
Power given him by the Law, and makes use of the Force he has under
his Command, to compass that upon the Subject, which the Law
allows not.”111
But Locke™s censure of tyranny is never a clear-cut condemnation of
lawlessness as such. Censure of a tyrant™s arbitrariness is coupled
throughout with condemnation of the consequences of his lawlessness.
Indeed, Locke explicitly emphasizes that the consequences are what
matter. If the lawlessness, the transgressing of the law, did no harm, it
would not be a ground for censure: “Where-ever Law ends, Tyranny
begins, if the law be transgressed to another™s harm”;112 (emphasis added).

<< . .

 14
( 38)



. . >>

Copyright Design by: Sunlight webdesign