In this essay, I would like to discuss Locke’s Second Treatise of Government section 131. This essay is divided into four parts. In the first part, I would like to interpret what Locke’s position is developed in section 131 and in the next part, I would like to discuss how Locke supports this position by tracing back to the origin of government. Then in the third part, I would like to point out some flaws in this position by arguing evidences provided by Locke to support his position. The last part of my essay is the conclusion.
Locke’s Position in Section 131
In section 131, Locke explained that the ultimate aim of uniting a society is to protect the security and property of the people and developed the position that the society should never extend its power farther than the common good of citizens because its supreme power is originated from the consent of people. In a word, according to Locke, the society is obligated to secure their property and is limited by the consent of people.
In order to prove the limits of the government, Locke traces back to the origin of government: why man is willing to give up his freedom and subject himself to the dominion of a commonwealth instead of staying in the state of nature where he has right to everything.
Three Inconveniences in the State of Nature
According to Locke, for a rational man, the reason why man is willing to surrender their rights, though man has right to do anything without being affected by the will of others within the law of nature in the state of nature is the uncertainty of his preservation. The enjoyment is unsafe. Because man is partial to his own interest and is lacking awareness of the law of nature ‘That being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions’ (Chapter 2, Section 6) and there are probably continual invasions of others. As a result of this, there are three inconveniences under those circumstances.
The first inconvenience is that there are no such established and well-known laws which can be used as the standard to judge what is right and what is wrong so that everyone is uncertain about their future and their property including their security, estate and possession etc. Or if there is a united society,
The second one is that there is no popular and indifferent judge to rigidly distinguish between right and wrong by the established law. Everyone can be the judge himself in the state of nature, but they always tend to bias to themselves, their friends and families.
The third one is that there is no power to ensure the punishment. In the state of nature, everyone has the right to punish whoever breaks the law of nature. According to Locke, it is executive power. But that may put them in a dangerous situation so that the punishment is hard to be carried out.
The origin of the Government
According to Locke, due to all these defects in the state of nature, people were thinking about uniting a commonwealth. Surrendering their rights to a sovereign which can use the supreme power to protect them is a remedy. The right of government comes from its subjects, and the government can never override them.
Locke’s Solutions to Restrict the Power of the Government and My argument From my perspective, I think Locke’s position on the limits of government seems kind of idealistic. The biggest question is how citizens can ensure that after the government gains the supreme power, it does what it is expected to do as original intention. Political power has a character to expand itself. If there is no limit of power of the sovereign, even though he is a man who has a good virtue, it is still uncertain that he governs the society following the law without any extemporary decrees all the time. Hence, Locke provides three solutions to restrict the power of the government. There might be some fIaws in them. I would like discuss all of them below step by step.
The first solution that Locke provides is that the government is limited by the law established by the consent of the majority. When the sovereign rules the state, he must obey the laws which made by the majority rather than govern it by his own will. “And so whoever has the legislative or supreme power of any commonwealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees” (Chapter 9, Section 131)
From my perspective, obviously there is no coercive power to guarantee that the government is run by the law except revolution (I will it discuss in the third point.) Moreover, it is also questionable whether there exists such kind of law which is able to represent the common good indeed. Even in our times when the legal system is more developed than the times when Locke lived, a large number of flaws can be found in our laws. Locke argues that laws can be updated. But no matter how up-to-date the law is, it still cannot cover everyone’s interest.
The universal of controversy cannot be avoided as long as people are in the different situation. Locke himself admitted that when man enters into a society, he gives up his equality “when they enter into society, give up the equality”. (Chapter 9, Section 131) As there are different classes of citizens, they must have some different interests, which make them in different statuses of society. There is no contradiction unless there is no difference among people.
Even that we are equal before the law, we cannot be protected by the laws equally. For instance, is a person is too poor to afford a lawyer, when his right is impaired, he cannot protect his right by law means and if a person has not studied laws, his property might be invaded without knowing it. If the inconvenience is caused by the ignorance, there is no distinct difference between the state of nature and the commonwealth.
Furthermore, if there are conflicting interests between a person and the government, it will be in a dilemma. In this situation, if the person protects his own interest by law, interests of government will be impaired. And in the long run that may lead to the impairment of interests of more people even include the first man who tried to protect his interests by law.
Locke may argue that in his second method that he advocates the division of political power and that he divides supreme power into three: legislative, executive and foreign power. What the government has is just executive power. The parliament has right to making law. And the government is run by the law. How can it do beyond the law? Moreover, the legislative power which belongs to citizens is always higher than executive power.
It is one of the greatest contributions of Locke that he advocates to make legislative and executive powers apart, but in comparison to three individual powers: legislative, executive powers and judicial review in political system today are employed, like the United State of America, It is not hard to find out the lack of judicial review in Locke’s theory.
Locke only divided legislature and executive branches. It seems that the structure of the government created by Locke is less developed than that of today. Without judicial review, the balance of power is weaker. Even our modern society in which there judicial system exists, the administration tends to gain power from time to time. For example, under the circumstance that judicial review exists, it seems that the strength of the president becomes stronger and stronger in the US. Moreover, Locke thinks that legislature could be formed of not only representatives but also the noble or a single hereditary person who has an executive power.
“Let us suppose then the legislative placed in the concurrence of three distinct persons. 1. A single hereditary person, having the constant, supreme, executive power, and with it the power of convoking and dissolving the other two within certain periods of time. 2. An assembly of hereditary nobility. 3. An assembly of representatives chosen, pro tempore, by the people.” (Chapter 16, Section 213) That weakens the strength of legislative further.
Even though those two solutions cannot completely ensure the government is run in the right way, Locke provides the third solution that people can take back their rights that they gave to the government by revolution and transfer rights to another sovereign if the government breaks the law of nature.
However, another problem may rise. There is the limit of revolution that Locke provides. According to Locke, the revolution could be legimate only carried out by the majority. What if what the government did is just harmful to the interest of the minority? Can the government united with the majority benefit from the minority by abusing their rights? The only thing that they can do is bearing subject themselves under the exploit. I do not think that Locke himself would like to become one of the minority members in that situation. Sometimes the good of the majority is not necessary the good of the minority. That is also an action of beyond the common good. It can be imagined that the consequence of benefit from doing harm to a small group of people is no difference with a political system of tyranny.
In conclusion, Locke supports his statement that the government can only do the common good and never override citizens by tracing back the origin of the government. Because of three inconveniences in the state of nature, people are willing to transfer their rights to a government. The right of government comes from the consent of people, so it can never extend farther. And Locke provides three means to limit the power of government. However, I suggest that there might be some difficulties to carry out these measures.
There is no such coercive power to compel the government to play its role by laws. Furthermore, there is a doubt if such kind of laws representing the common good existing. And there is no judicial review to decide whether and when actions break the law. The action of revolutions does not working all the time. The rule of revolution Locke provided may be the legitimate basis of putting the minority in the tyranny of the majority. But in any case, Locke’s theory shows us the end of the society and the idea, the balance of power, and directs us to think about the way to improve the political system and make it more democratic.