Constituent Force: Creation and Destruction in Locke’s Political Thought

Introduction

The Second Treatise is a turbulent book, in some respects a violent one. We tend to read Locke for what he says above the line, about the normative structure of functioning constitutions. But it makes equal sense to read him for what he says below the line, about the darker and more fragmentary elements of political ordering, all the more so if we factor in the uncommonly large sections of the text given over to scenarios of danger, discord, disintegration, and flux. This article focuses on these more unruly elements in order to expose how Locke calibrates the relationship between chaos and order and imagines how one might be conjured from the other. Sensitive to the flows of power that course through constitutions, Locke is a preeminent theorist of the dynamics of constitutional formation and decay, acutely aware of the force, even violence, that both animates and threatens political society.

Attending to the cycle of destruction and renewal that forms the deep structure of his thought reveals Locke as one of the earliest theorists of constituent power—or what, sticking closer to his own idiom, I prefer to call “constituent force.” Using constituent power as a lens of reconstruction brings core elements of his theory—the natural condition, the locus of sovereignty, constitutional government, the breakdown of government, and the right to resist—and the logical connections between them more clearly into focus. The structuring idea behind theories of constituent power is that the authority of the constitution derives from “the people” who, through an exercise of their innate constitution-making capacity, engage in an act of collective self-government, thereby establishing a new juridical arrangement for the community. The separation of constituent and constituted authority that characterizes such theories performs an equally germinative role in Locke’s thought. Notably, his distinction between “Society” and “Government” is predicated on the idea of an entity—society, community, or the people—which can organize itself around rules and can, as such, assume some form of corporate identity absent the sword of government.

The law-generating character of “Society” grounds not only the constitutional claim that the people possess ultimate sovereign capacity but also the more basic political claim that it is capable, at least on occasion, of assuming genuine political agency. In normal times, this ultimate sovereignty is entrusted to a legislative representative of the people’s interest. The laws passed by that body carry the “force of the Commonwealth” and establish the ground rules under which other actors, including the executive, are expected to operate. But legislative supremacy is limited—it cannot, for instance, divest itself of power nor amend its own powers or those of other constitutional bodies. The people retain the capacity to terminate the constitution, using force if required, and to settle a new constitution on its terms.

There are many readings of the history of constituent power. Antonio Negri’s materialist version roots its development in Machiavelli’s analysis of popular movements and the conflictual nature of republics, whereas Martin Loughlin identifies Bodin’s Les six lives de la république (1576) as the decisive point of origin. ¹ But while some read Locke as a theorist of constituent power, ² most see him as marginal to that tradition, tending to portray his theory as underdeveloped or confused—often in service of a standard narrative that insists on constituent power being essentially a child of the French Revolution. ³ Andrew Arato is a case in point. While he accepts that “the people” carry “an active, political perspective” in the Two Treatises, he thinks that “the constituent power of the people is quiescent,” at least in part because Locke makes—Arato maintains—its exercise “dependent on the prior dissolution of government.” ⁴ I show in what follows that this seriously underplays the role of popular power in the theory. Locke demands much of his citizen-sovereigns, who are expected to take an engaged role in defense of their constitution, one that explicitly contemplates preemptive action against tyrants or would-be tyrants.

The paper traces these propositions through the lifecycle of the Lockean constitution, tracking its rise, fall, and rebirth. Section 1 considers the notion of “Society”—that is, a people or community capable of independent existence absent conditions of government, whose central property is its law-generating capacity. Locke’s “natural condition” is more complicated than sometimes assumed. While law’s central function is to identify violence and keep it at bay, it is also the case that what Locke called “animal spirits”—innate forcefulness—must be harnessed to give cohesion to the community that law establishes. Section 2 investigates Locke’s account of constitutional government, presented as though a product of active steps on the part of its creator-subjects. The key to the instantiation of government is, for Locke, the deployment of the collective force of the people for the purposes of constituting conditions of self-rule.

The next two sections consider the Lockean constitution under circumstances of strain and dissolution, respectively. Section 3 focuses on prerogative, a subject Locke lingers on due to its in extremis associations. Prerogative is problematic because its exercise can force apart legality and legitimacy, which otherwise operate in lockstep in the theory. Extralegal discretion in the hands of the Prince is a potential source of domination that, if allowed to proliferate, threatens the constitutional order of self-rule. To mitigate that situation, the constitution ought to subject prerogative to a special structure of justification, one that asks the people to give ex post approval to action taken under prerogative, resealing in so doing the gap between law and legitimacy. Section 4 examines Locke’s exploration of the ways in which government can renege on its public law duties. It is in this context that the distinction between “Society” and “Government” becomes most visible, since it enables Locke to differentiate clearly the dissolution of government and the dissolution of political society. That distinction in turn provides the conceptual underpinnings for the right to resistance, understood as the invocation of the people’s constituent capacity in order to remove a recalcitrant or failing government using force if necessary.

Finally, section 5 considers how government reemerges after it has collapsed, a subject that reveals most directly Locke’s understanding of constituent capacity. The key to the creative potential of the people lies in the combination of “Fancy” and “Agreement”—the capacity to imagine an arrangement that would better serve the public interest, allied to the ability to effect binding agreements with other parties, people, and nations. Locke insists that this promise-making power exists in the natural condition and thus continues to apply in domains outside the sovereign state, such as the law of nations. He calls the equivalent power in the constitutional state the “federative.” Sustained and prudent exercise of this treaty-making power has the potential to transform a world governed by force and fate into one patterned by alliances and associations geared toward peace.

Origins

“Never, since the Greeks’ earliest discussions on the excellence of public life, have people spoken about politics without speaking of nature,” claims Bruno Latour, “or rather, never has anyone appealed to nature except to teach a political lesson.” ⁵ The state-of-nature paradigm, an essential part of the tradition Latour aimed to skewer, is protean—normative ground zero and theoretical point of departure, of course, but also speculative-anthropological origins story, ⁶ “axiom of theology,” ⁷ mise-en-scène, and invitation for imaginative world-building. While Hobbes used the occasion to provide a set-piece demonstration of the vertiginous terror of life without government, Locke’s investigation serves a different purpose. His elaboration of the “State all Men are naturally in” (§4) provides not just the basic jural coordinates of peaceful coexistence, but also an account of collective action in nudo and the structural problems it presents. The way these elements combine will supply much of the foundational structure of political order.

A standard reading has Locke taking a relatively benign view of the human condition. But putting chapter 2 (“Of the State of Nature”) alongside chapter 3 (“Of the State of War”) and chapter 4 (“Of Slavery”) produces a reading whose central feature is the interplay between not one but two distinct registers of being together in the world, the first being the community under natural law, in which ethical relations among fully human beings is sustained by adherence to the rule of reason, and the second being life under no rule at all—that is, bare or animal existence. To turn your back on the former means, for Locke, that you embrace the latter since to ignore the claims of reason is implicitly to choose the life of a beast.

The exposition starts with our creaturely essence. Locke takes it as self-evident that “Creatures of the same species and rank . . . should be equal one amongst another without Subordination or Subjection” (§4). The position from the start is moral, and undoubtedly also politico-theological, which Locke looks immediately to fill out. He contests Hobbes’s claim that the natural condition is the anarchy of freedom, arguing that “although this be a state of liberty it is not a state of licence.” (§6) The state of nature is governed by a Law of Nature, which is the teachings of Reason as to how men should coexist. Two postulates are central to it: that every one is bound to preserve themselves and that each ought to do their best to preserve the rest of mankind, especially by refraining from interfering with other people’s life, liberty, health, bodily integrity, or property. There is no reason, Locke thinks, why this Law should not have some operational effect on human beings outside developed political structures. The rules that these rudimentary but functioning societies generate derive from the natural capacity to effect binding agreements with each other: “Truth and keeping of Faith belongs to Men, as Men, and not as Members of Society” (§14). Locke acknowledges the obvious corollary, for instance, when discussing the various “nations of the Americans” at the same point in the text, which is that each society in the natural condition interprets the law of nature subject to local conditions and in its own somewhat distinctive manner.

Locke has sketched the boundaries of ethical life with impressive concision, outlining the core features that constitute legitimate authority in the process. But what might first appear as a straight path is in fact a fork in the road. Locke has got to this point by juxtaposing one form of coexistence in which the conditions for sustaining ethical life are met with one in which they specifically are not. He refers directly to the state of liberty that is not license, where rules are followed, but in doing so, he acknowledges a very different type of life where they are not. This second, and darker, fork is meant to have a chiaroscuro effect, dramatizing the contours of the state of liberty. But it enjoys more than a shadowland existence in the text. Not only is it central to Locke’s subsequent description of the state of war, but it also appears in this first and largely peaceful iteration of the state of nature, where it plays a substantive role in determining how those who violate foundational rules of natural law are treated. Locke argues here that serious infraction of those rules of nature puts the wrongdoer beyond the pale, “being a trespass against the whole Species,” (§8) and deprives them of their status as a fully human agent, exposing them to a kind of universal jurisdiction whereby everyone and anyone is entitled to restrain or punish them as “a noxious Creature” (§10).

Locke accepts that this may seem a “very strange Doctrine” (§9), though for him it is a consequence of the egalitarian distribution of power and the dispersed nature of authority in the natural condition that the power of punishing is held by everyone (§13). ⁸ But what is probably stranger to our eyes is how Locke sees an infraction of natural law as entailing what resembles a loss in human status, though that position may be mitigated by the requirement of proportionality in punishment (§8). The philosophical and theological foundations of this framework are laid in the First Treatise: “God, I say, having made Man and the World thus, spoke to him, (that is) directed him by his Senses and Reason, as he did the inferior Animals by their Sense, and Instinct, which he had placed in them to that purpose, to the use of those things, which were serviceable for his Subsistence, and given him as means of his Preservation” (I §86).

Locke’s account of the state of war (chap. 3) adopts the same framework, the argument being that what holds for isolated infractions in the natural condition applies to the larger-scale violations that produce conditions of war. Indeed, the initial definition of the state of war highlights the continuity between the two, couched as it is in terms of individual action and reaction. “The State of War is a State of Enmity and Destruction: And therefore declaring by Word or Action, not a passionate and hasty, but a sedate settled Design, upon another Mans Life, puts him in a State of War with him against whom he has declared an Intention.” In such a scenario, I am entitled to “destroy” my aggressors for the same reason that I am entitled to “kill a Wolf or a Lyon; because such Men are not under the ties of the Common Law of Reason, have no other Rule, but that of Force and Violence, and so may be treated as Beasts of Prey” (§ 16).

The split-level position that emerges is uncompromising. You either submit to “living together according to reason,” within a community oriented to “Peace, Good Will, Mutual Assistance, and Preservation,” or you take your place alongside the beasts under conditions of “Violence” (§19). There does not seem to be much by way of a middle ground—either rule or no rule; community or anarchy; peace or war; human or animal. The split-level perspective almost certainly has deep ethical, epistemological, and theological roots. Locke consistently argues, and not just within the Two Treatises, that to ignore the demands of reason is to put yourself in the condition of an “inferior animal.” ⁹ Since animals lack reason, or at least the capacity to reason on the basis of general ideas, they are not capable of a law and, by extension, life within any community as we would understand it, and must rely instead on their own “sense and instinct” to get by. ¹⁰

Locke’s final word about the natural condition comes in the chapter “Of Slavery” (chap. 4). Much of the argument concerns freedom, anticipating what he will soon say about liberty under modern conditions being coexistence under laws passed by a freely chosen legislature. But the chapter also offers a coda of sorts to the line of argument we have been tracing. The main claim of the chapter is that, since being outside the absolute, arbitrary power of another is essential to preservation, slavery should be prohibited in almost every conceivable context, including where it purports to be volitional. Here, Locke takes issue with Grotius’s and Pufendorf’s claim that individuals and even entire peoples can lawfully enslave themselves. ¹¹ To be under the dominion of another, he insists, amounts to a forfeiture of one’s “Preservation and Life together” and, given that on his account no person has the power to take their own life, there is no equivalent power to enslave oneself, even “by Compact, or his own Consent” (§23).

Locke’s argument to this point seems consistent with the general objective of defending politics as a relationship among equals oriented toward their common good by contrasting it with its opposite—namely, slavery. ¹² There is an important caveat, however, which stems directly from the split-level analysis of the preceding chapters. The paradigm case involves captives taken in a just war, where slavery is “nothing else, but the State of War continued, between a lawful Conqueror, and a Captive.” That situation persists until such time as an agreement arises between conqueror and captive, limiting the rights of the former over the latter. The bare fact of an agreement of this sort, whatever its substantive content, in acknowledging the personhood of the slave, seems sufficient to reanimate their human status (§24). But the exception is not in fact so narrowly drawn. ¹³ What Locke actually says is this. If someone “having by his fault, forfeited his own Life, by some Act that deserves Death”—that is, takes themselves outside the pale of humanity by a material breach of the laws of nature—“he, to whom he has forfeited it,” which given the dispersed nature of natural executive power could in principle mean anyone, may “delay to take it [his life], and make use of him to his own Service, and he does no injury by it” (§23).

Locke’s exception comes across all the more starkly for its dismissal of alternative forms of servitude, such as drudgery, where the rights of masters were limited (§24). But we can see how the binary approach to slavery has been prefigured by the equally Manichean argument that runs through the two preceding chapters. Those who violate the laws of nature withdraw themselves from the community of mankind and thus the protection it offers. Their acts are no longer seen as fully human acts but are more like those of an inferior animal. Indeed, here, in filling out, rather grotesquely, the moral properties of legitimate slavery, the less-than-human nature of the slave is made exceptionally vivid. There is a way out for slaves, but it is one available only to unreasoning animals and not to reasoning man. Locke is prepared, for suffering slaves, to lift the general prohibition on suicide. “For, whenever he finds the hardship of his Slavery out-weigh the value of his Life, ’tis in his Power, by resisting the Will of his Master, to draw on himself the Death he desires” (§23).

* * * *

If the natural condition plays a germinative role in Locke, a space in which to articulate his basic framework of justice, what does the preceding analysis tell us about the way Locke imagines the constitutive relationship between law and violence? It is clear, in the first instance, that Locke believes that effective, if perhaps somewhat rudimentary, human community (“Society”) can exist outside developed structures of government. That Society is grounded in hostility to violence, understood as the use of force without a rule. It is legality, then, that establishes the metes and bounds of ethical coexistence. If human community is defined by its hostility to violence, in that people unite through antipathy to force and war, the sentiment of anti-violence is in a sense constitutive of community, providing as it does the basic exclusionary move that establishes the possibility and pattern of cooperation. The power engendered through that uniting move is legitimate in that, and insofar as, it is exercised so as to sustain the terms of peaceful coexistence against those who seek to disrupt it through violence.

Annabel Brett sees early-modern natural law discourse as preoccupied with how the city or state must pull away from nature to form itself at the same time as being grounded in nature to motivate and to legitimate it. ¹⁴ There is evidence of a similar double move in Locke, for whom the relationship between violence and reason, force and rule, war and peace is not straightforwardly oppositional but fundamentally generative—the violent antithesis presented by their contrasted forms of existence works dialectically. Identifying the former as a coherent type of behavior against which we need to organize—that is to say, the construction of violence as both concept and threat—constitutes the community and supplies its organizing logic. Repression of the destructive force represented by oath-breaking and violence lies at the root of all human society.

But this act of denial, the decisive move in the foundation of ethical community, can also be seen as a matter of harnessing the “animal spirits” ¹⁵ associated with those untamed forces, transmogrifying them in so doing into community-building properties. The distinction between the state of war and the state of nature lies precisely in the alignment of force, the former the domain of “force without authority,” and the latter a space where force is generally employed only in self-defense. But, as Richard Ashcraft notes, “Most men cannot act in self-defence unless there are some men who can use force aggressively.” ¹⁶ Locke does not share—at least fully—Hobbes’s horror vacui. ¹⁷ The latter’s predilection for the walled city, to keep out beasts/nature, because they are dangerous, as much as the space in which human/artificial politics takes place, morphs into Locke’s hands into a general claim about the acquisition of property and polity, but with borders between the natural and artificial that remain, for all their definitional importance, somewhat porous.

Maturity

That last point is reinforced by the ambiguous way that Locke deploys the word “force” throughout the Second Treatise. That word is used repeatedly in the state of nature, usually negatively, but occurs almost as frequently in discussing the civil condition, where it often carries positive connotations. It is here that we meet the institution of government for the first time. Locke considers it axiomatic that human beings have the inherent capacity for civilized coexistence: It is always possible for human communities to coalesce around shared basic rules, derived from the power to make binding agreements, and these can keep out violence to at least some degree. Since the commonwealth operates on a continuum with other forms of order, the question becomes: What does government add to the picture?

It is clear that it does add something. Locke does not see modern government as simply an engorged version of rudimentary forms of order.

It is easie to conceive, that in the Infancy of Governments, when Commonwealths differed little from Families in number of People, they differ’d from them too but little in the number of Laws: And the Governours, being as the Fathers of them, watching over them for their good, the Government was almost all Prerogative. A few establish’d Laws served the turn, and the discretion and care of the ruler supply’d the rest. (§162)

The passage is intriguing but needs unpicking. It alludes to the idea of pastoral power, with its central image of the king or ruler as “good shepherd” of his people. A parallel can be drawn between the passage and Plato’s Statesman. In a startling cosmic myth in that dialogue, Plato imagines a race of proto-humans who existed in something that resembled sheeplike conditions under the benign protection of a race of demigods. The episode reinforces the claim that, though ruling retains an element of “care,” political relations among human beings can never take the form of the pastorate. Kings, who are not demigods (much as they might like to be), have many rivals, and we, unlike sheep, are prone to go astray. ¹⁸

Locke picks a different route through the same intellectual landscape. For him, primitive forms of order do take on attributes of the pastorate. People inhabit simpler, seemingly more organic social structures in which rulers act “as the Fathers,” “watching over” those under their protection with “discretion and care.” At this early stage of development, the people are tame—or at least easily tamable. There is little call for rules because there is not much agency. But the point of the contrast, as for Plato, is to emphasize the gulf between our ancestors and us. It is one thing to speculate about our distant predecessors, at some primitive evolutionary stage, living under the watchful eye of a benevolent father-ruler. It is quite another to imagine that this might work for us. For developed human beings, ensconced within more complicated social structures, such conditions are anathema, as they can only lead to various forms of subjugation. To be free, we must make our own laws and live under them. Though presented in terms of conjectural anthropology, the point is polemical, something that can be seen best by inverting the order in which it is presented: If, as modern beings, we allow ourselves to be ruled by a father figure, however apparently benign, we revert to the condition of primitive man, becoming little more than a herd of tame creatures.

People, especially in more developed societies, need to rule themselves. And societies, the more developed they become, require government. But government, especially as it gets bigger and more powerful, itself threatens self-rule. Locke’s solution, one by no means unique to him, was a nested constitutional structure in which government was housed within a framework of “establish’d, settled, known Law” (§124). Constitutional authority was to be understood in legal terms, with government identified as a creature of law, not vice versa, and the purpose of law was defined in terms of the preservation and enlargement of freedom (§57). Within this structure, where government acts under the authority of laws passed by a representative legislature and ultimate sovereignty resides in the people, the likelihood of agency capture is reduced as is the prospect of civil unrest.

Locke consistently expresses the elements of this nested structure as a sequence of constitutive moves—that is, active steps taken by citizens-to-be at their own initiative. We consider two such sites of action now, examining a third—the right to resist—later. The first move, pooling our natural capacities of judgment and enforcement, thereby instituting the domain of government properly so called, as distinct from rulership, command, domination, control, or protection, is presented in a way that assumes an active stance on the part of individual members of Society toward deliberation, design, decision, and enactment: “Politick Societies all began from voluntary Union, and the mutual agreement of Men freely acting in the choice of their Governours, and forms of Government” (§102).

The second decisive move is the creation of legislative power—“creation” in the strict sense, since it has no real analog in the state of nature. “The Constitution of the Legislative is the first and fundamental Act of Society” (i.e., political society, §212). The Legislative is the institution through which we give law to ourselves and, as such, the primary means complicated societies have for creating self-ruling structures. Its status as Guardian of the Constitution (§143) derives not just from its special problem-solving capacity (utility) but also from its unique ability to knit the community together and provide it with a voice (identity). “This is the Soul that gives Form, Life, and Unity to the Commonwealth: From hence the several Members have their mutual Influence, Sympathy, and Connexion” (§212). It is the mutually reinforcing nature of these two capacities that marks the Legislative out as the defining institution of self-rule. Its identity-conferring capacity makes problem-solving at scale possible, while its problem-solving capacity inclines people to identify with the legislative, and thus to recognize their collective membership of political society. ¹⁹

Locke’s parliament may be constitutionally supreme, but it is not sovereign. It is subject to various limits, the most important of which—the incapacity to divest itself of power or amend its powers or those of other constitutional bodies—align precisely with a theory of constituent power. Locke understands these prohibitions as constitutional constraints, the defense of which elicits one of his clearest statements on the distinction between constituent and constituted power. “The People alone can appoint the Form of the Commonwealth, which is by Constituting the Legislative,” he writes. Since the “power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant covered, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority to make Laws, and place it in other hands” (§142). If the people are dissatisfied in this regard, they retain the right to cashier the legislative and replace it with another (§149).

Decline

Given Locke’s readiness to probe the darker recesses of politics, it is unsurprising that the Second Treatise includes a dedicated chapter on prerogative, at the center of both of the century’s English revolutions and emblematic, as such, of political controversy and fragility. The chapter is a disquisition on the commonwealth under conditions of stress, describing a situation that is not necessarily fatal—a predicament, considered next, discussed elsewhere in the text—but one marked by the opening of a gap between legality and legitimacy. Those two criteria seem all but fused within Locke’s general theory, and the separation between them marks a point of conceptual disequilibrium if not necessarily actual rupture.

Locke initially 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” (§160). Such recognition of prerogative as a “reservoir of authority vested in the ruler,” ²⁰ though a standard feature of early-modern constitutions, is a poor fit with Locke’s theory, the burden of which is that governmental power is to be authorized by public law. Clement Fatovic resolves the attendant puzzle by arguing that Locke “endorsed” prerogative “as an indispensable—albeit potentially dangerous—tool of governance,” an institutional acknowledgment that “the extraordinary is an ordinary part of politics.” ²¹ Similarly, Ross Corbett sees Locke’s prerogative as entirely extraconstitutional, existing outside the frame of constitutional legality altogether, which can only be controlled by another extraconstitutional power, here the natural force of the people. ²²

While this extraconstitutional reading of Locke’s prerogative is plausible, especially if the chapter is read in isolation, I favor a more nuanced reading that seeks to integrate the prerogative with the core elements of the theory. There is no question that Locke was working at the edges of legality and legitimacy and that this drove an inquiry into various substrata of political order, including trust, fealty, and tradition. But I emphasize how Locke aims to make this liminal space consistent with the logic of constituent force, and where possible, to seek to close the gap between legality and legitimacy that the extralegal exercise of prerogative opens up. We have seen an example of this tendency in the chapter on prerogative already in Locke’s reflections on the pastorate. The pastorate was defined as a condition of almost all prerogative and very little law—the precise opposite of how the commonwealth should present juristically. But Locke pivots directly from this point to argue that it is conceptual nonsense to insist on prerogative being the property of the prince. It is not an original power but, on the contrary, like all public power, belongs to the people and has been “left in his, or his Ancestors, hands, to be exercised for their good.” To suggest otherwise amounts to accepting that:

the People under his Government are not a Society of Rational Creatures entered into a Community for their mutual good . . . but are to be looked on as a Herd of inferiour Creatures, under the Dominion of a Master, who keeps them, and works them for his own Pleasure or Profit. (§163)

This passage’s articulation of the central exegetical themes of this paper could hardly be starker. I focus instead on how the argument continues. Locke’s first step is to offer a restatement of his initial definition, one that has been subtly changed to bring out the derivative nature of prerogative power. “Prerogative can be nothing,” Locke now writes, “but the Peoples permitting their Rulers, to several things of their own free choice, where the Law was silent, and sometimes too against the direct Letter of the Law, ²³ for the publick good; and their acquiescing in it when so done” (§164, emphasis added).

Locke’s second step, just highlighted, concerns what this derivative conception of prerogative entails for political practice. Locke takes prerogative to occupy a distinct place in the constitution, a special category to which special conditions attach. One reason for this is pretty standard. We often encounter prerogative in situations of emergency, or at least urgency—Locke’s stock example is the pulling down of “an innocent Man’s House to stop the Fire, when the next to it is burning” (§159)—and in these contexts, it can be hard fully to prescribe in advance. But a second reason is more interesting, since it gets to the heart of Locke’s position. Unlike other constitutional capacities, which are fixed by law, the discretionary scope for action that a ruler has under prerogative cannot be determined in advance but will vary, not just according to the seriousness of the predicament being faced but because the power depends ultimately on how much this particular ruler is trusted, itself in part a function of evolving practices and norms.

The special nature of prerogative demands a corresponding structure of justification. Prerogative, as Locke understands it, represents in theoretical terms a heightened zone of interaction between ruler and ruled, one in which the question of allegiance is posed unusually directly. Under stable conditions, mediation through law and institutions (legality) helps rulers to short-circuit questions about their right to rule (legitimacy). By contrast, the operation of extralegal power, the signature of tyrants, by definition removes legality from the equation, leaving the question of legitimacy exposed. Specific ex post justification is needed to close the rift in the legitimacy of the constitutional order produced by the use of extralegal prerogative power. “As Locke would have had it no exercise of prerogative can stand on its presumptive merits alone but must be approved by the legislature or the citizenry as soon as practicable.” ²⁴ Locke recognizes that people can be quite generous on this front, and that this is not necessarily a bad thing. Note that retrospective authorization is again presented in active terms—the people are required to “acquiesc[e] in” the extralegal act. Every exercise of prerogative, that is, raises a basic authority claim that in principle needs to be settled. It is in the end down to us, the people, to decide whether the figure who claims authority over us is in fact—as he presents the choice at one point in the First Treatise—pirate or lawful prince (I §81).

That might be a very uncomfortable question to address and can lead to the fracturing of relations between constituted powers. Locke sees no real way of resolving that—which is not to say that it is a situation devoid of principle. In fact, he uses the opportunity to give one of the most emphatic descriptions of what I call constituent force. Though it might be impossible for the people to design an institution capable of resolving fundamental conflicts within a divided polity, it remains the case that the people have “by a Law antecedent and paramount to all positive Laws of men, reserv’d that ultimate Determination to themselves” about whether to live under a particular regime and under what conditions. This residual capacity in the people to destroy a regime and set up another might seem at first sight like “a perpetual foundation for Disorder.” But it is, in fact, he argues, anything but. Since its active absence, so to speak, can exert a hortatory pull on “the Executive Power, or wise Princes,” it may well even be said to assist the stability and flourishing of commonwealths (§168).

Failure to appreciate Locke’s nuanced position on prerogative—a “strong” discretionary power, vested in the executive, but one nonetheless derived from the constituent power of the people and subject to its oversight—leads to error. Part of Andrew Arato’s case for regarding Locke as a peripheral figure within the constituent power tradition is due to the supposedly “quiescent” status of the people within his account. Arato argues that Locke’s theory contains not one but two supreme powers—a “liberal” right of resistance and a “democratic” constituent power—and that the (in his view) “unlikely activation” of the latter means that “the amending power to the extent that it exists at all falls to the royal prerogative.” ²⁵ That argument rests specifically on a misreading of the final passage of the chapter preceding the one on prerogative, which does not, as Arato suggests, propose a general executive capacity to change the constitution but defends exceptional corrective measures—Locke’s example concerns electoral redistricting for demographic reasons—in a way that resettles “the Government upon its true Foundations” (§158).

More generally, Arato’s reading misaligns with the rest of the theory. Bearing in mind that the executive does not have the power, even under prerogative, to change the ordinary law, a reading that gives the executive the power to change constitutional law is untenable. Locke is very clear, as we have seen, that even the Legislative cannot do that. If that is true for the supreme constituted body, it cannot be true of the executive, a constitutionally subordinate office, still less in the context of a discussion whose aim is to conceptualize prerogative as a power derived from the people and subject at all times to popular control. Arato’s mistake is to rely on a superficially attractive, but erroneous, reading of prerogative that turns a residual and interstitial power vested in the executive to secure the public good, especially in situations of urgency, into the centerpiece of a “systematic constitutional theory of extralegal power.” ²⁶ The identification of Locke as almost a precursor to Carl Schmitt ²⁷ represents the opposite of his true theoretical ambition, which was, I maintain, the ascription to the people of an extralegal sovereign capacity as the wellspring of a systematic theory of constitutional power.

Fall

The passage that closes the chapter on prerogative is not Locke’s final word on state failure. The discussion in that chapter takes the executive to be the main threat to the constitution. Locke’s more systematic treatment of the topic in a later chapter on the “Dissolution of Government” (chap. 19) includes not just examples involving executive abuse of power but also situations where the Legislative violates the people’s trust (§221). We spend time on this chapter not just because it shows with exceptional clarity the importance of the distinction between “Society” and “Government,” not least in the case of rebellion, but also because it reveals, somewhat counterintuitively, the structuring role that “constituent force” plays not just in turbulent times but as an ever-present, quotidian feature of constitutional politics.

In working through various doomsday scenarios, Locke insists that the dissolution of government is quite distinct from the dissolution of society. He recognizes that the second eventuality can occur, generally in situations of conquest by a foreign power, but other kinds of disorder produce only the demise of the existing constitution (“government”) and not the unraveling of political order (“Society”). The agreement that we made with each other and that produced political society still holds, so we can regard our collective self as continuing to subsist. Even where government fails, the people still have the capacity to “act as one Body, and so to be one distinct Commonwealth” (§211). The distinction between government and society opens up a space for a right to resistance, by which Locke means the popular right to remove a government. The people, as constitutional principle, decide when government is dissolved. It is for the people to act, using force if necessary, to cashier an old regime in order to replace it with a new one by “erecting a new Legislative, differing from the other, by the change of Persons, or Form, or both as they shall find it most for their safety and good” (§220).

It is here, articulating this rebel logic, that we find Locke at his most blistering and bodily. Government failure can be understood as a kind of partial reversion to the natural condition. But the situation the people face is the worst of all worlds—a state of war in which elements of the natural condition and the political condition subsist side by side: “now whenever his Property is invaded by the Will and Order of his Monarch . . . [the subject] is exposed to all the Misery and Inconveniences that a Man can fear from one, who being in the unrestrained state of Nature, is yet corrupted with Flattery, and armed with Power” (§92). The situation is compounded by the innate loyalty—or status-quo bias—people have for “their old Constitutions” (§223). But Locke aims to make the situation as analytically lucid as possible. Where the government consistently deploys unlawful force, it enters a state of war against us. It is those rogue or failed political agents who are the real rebels. Just as we have a right to repel foreign invaders who bring war to us, so are we entitled to counter the home-grown “imperious Wolf” that equally threatens us with the “use Force without Authority” (§227–28).

Is it possible to recast that last point and say that we need to retain enough “animal spirits” to counter threats to our freedom? There is, in fact, support for such a reading in the text. Back in the state of nature, the biggest threats were, internally, free-riders, knaves, oath-breakers etc and, externally, war-mongers and similar aggressors. Membership of the commonwealth should reduce these threats. That, after all, is one of its raisons d’être. But political society introduces a new threat, corresponding to the new species of power created alongside it—the force that the commonwealth itself is capable of wielding. In describing this threat, a constant preoccupation, Locke draws on the same split-level framework with which he patterned the state of nature, ransacking the same word-hoard as he does so. The following passage addresses Hobbes’s thesis that there is no need for popular power once the civil condition is attained:

As if when Men quitting the State of Nature entered into Society, they agreed that all of them but one, should be under the restraint of Laws, but that he should still retain all the Liberty of the State of Nature, increased with Power, and made licentious by Impunity. This it to think that Men are so foolish that they take care to avoid what Mischiefs may be done them by Pole-Cats, or Foxes, but are content, nay think it Safety, to be devoured by Lions. (§93)

It is the reappearance of the “liberty vs licence” motif that dominates this passage. To step outside the elemental bounds of law makes the wielder of power “licentious” and, as such, a standing threat to “Liberty.” Its recurrence signals a partial reversion to the liminal conditions of the state of nature, where foundational decisions about the essential conditions of being together in the world are staked out, where we distinguish what it means to live together as human beings, within human communities, as opposed to the savage life of beasts. Even so, the normative situation Locke describes is quite different from Hobbes’s war of all against all, since we always retain the capacity for generating our own law, something which a declension in the direction of the natural condition does not disturb. “For the Society can never, by the fault of another, lose the Native and Original Right it has to preserve itself” (§220). A government acting improperly disturbs the social fabric, and yet the people continue to exist nonetheless as a people—that is, a “Society” bound by its own laws—and to the extent that they repel those who use unlawful force against them, do so according to those laws.

What I find interesting in this discussion of what we might call constitutional backsliding is not so much the analysis of high-stakes constitutional “moments” as the reminder that government under conditions of self-rule is a fragile achievement. There is always the apex predator (“Lions”) to consider, especially as that role is now occupied by those with direct access to public power. The reminder serves to underscore a core intuition: commonwealths, however they come about, are in effect always and everywhere constituted and are sustained not just through the activity of officials but also, and more fundamentally, by popular support. “Constituent force” plays a key structuring role within this account of politics as the product of dynamic relations and not just in extreme situations where survival—or freedom, which for Locke often seems almost the same thing—is at stake. As we also saw in discussing prerogative, Locke thinks that acknowledging this constituent capacity is more likely to have a cautionary effect on rulers rather than a radicalizing effect on the people (§223). Its recognition plays a structuring role in the commonwealth, since its presence, however apparently vestigial, helps to maintain equilibrium between the governmental institutions nested within it. The trick is to keep enough animal in reserve, enough bite, to caution and condition would-be tyrants and rogues.

Renewal

To this point in the lifecycle of the constitution, it is possible to accuse Locke of being clear on principle but less so on points of detail. Lacking a clear sense of how popular agency is meant to affect political practice, we have not been able to map the contours of the people’s productive or creative capacity with any real precision, despite its importance to the theory. While this final section is framed in terms of renewal—how a political Society restores itself after a failed regime—its observations apply equally to getting a commonwealth started in the first place. The relevant question in both cases is the same: How does Locke envisage the jurisgenerative capacity of a people?

I will suggest that the key lies in the innate capacity to make binding promises and its analog in the civil condition, the federative power, or capacity to conclude legal agreements. But the beginnings of an answer are to be found in the earlier chapter on property. That chapter contains an account of social constructs which arise through what Locke describes as a combination of “Fancy or Agreement” (§46, emphasis added). One of these is money exchange; another is property. The more familiar phase within Locke’s theory of property is a story of privatization: an account of how we carve out from general common ownership private rights in respect of distinct parcels of land or products with which we mix our labor (§45). But a second phase moves almost in the opposite direction—from private to public—and is the story of how societies under conditions of relative scarcity develop public laws relating to property ownership. Locke regards this as the product of external (or “international”) and internal (or “constitutional”) agreement. So, whereas “in the beginning,” labor gave a right to property:

afterwards, in some parts of the World . . . the several Communities settled the Bounds of their distinct Territories, and by Laws within themselves, regulated the Properties of the private Men of their Society, and so, by Compact and Agreement, settled the Property which Labour and Industry began, and the Leagues that have been made between several States and Kingdoms, either expressly or tacitly disowning all Claim and Right to the Land in the others Possession . . . and so have, by positive agreement, settled a Property amongst themselves, in distinct Parts and parcels of the Earth. (§45)

The argument contains important clues as to how Locke understands the process of jurisgenerative world-building. We could call that process, modifying a phrase just highlighted, one of “Fancy and Agreement.” It combines a sustained exercise in collective imagination and will with an ability to effect more or less binding agreements with other parties, communities, and peoples. We first imagine an arrangement, be it property ownership or political Society, that is conducive to our overall welfare. We then make that vision more concrete and more stable—and as such something we can trust—via sequences of agreements that range from the relatively informal (mores, shared assumptions, social norms) to the more formal—agreements, treaties, associative pacts, “positive constitutions” (§50).

Locke takes this capacity to make agreements that can create new worlds and new realities as inhering to us in nature. “For Truth and keeping of Faith belongs to Men, as Men, and not as Members of Society” (§14). That sentence concludes a paragraph discussing the natural capacity to effect binding agreements in three contexts: (i) the original state of nature (“Promises and Bargains for Truck, &c. between the two Men in the Desert Island, mentioned by Garcilasso De la Vega, in his History of Peru”); (ii) the cosmopolitan state of nature (“or between a Swiss and an Indian, in the Woods of America”); and (iii) the international state of nature (“all Princes and Rulers of Independent Governments all through the World, are in a State of Nature”). The paragraph, that is, handles the natural promise-making capacity in a way that foreshadows the areas where most of the interest in the capacity in its more developed form, operating in and around the shadows of the state, is to be found.

Beyond the “positive constitution” and the Compact “to unite into Political Society” (§99) that underlies it—clearly the paradigm of an act of mutual promising that is also an act of founding—the capacity to make agreements is most often associated with what Locke calls the federative. The term, derived from the Latin foedera meaning agreements, pacts, or treaties, designates a separate external relations power centering on the capacity to conclude binding agreements with other political entities (§146). Locke distinguishes it from both “ordinary” executive power (i.e., executing duties specified by legislation) and prerogative (i.e., exceptional executive power to act without, even against, legislative authority), though he acknowledges that these capacities tend to be concentrated within the same office of government. The federative is subject within the Lockean constitution to similar constraints as ordinary executive power, both being “Ministerial and subordinate to the Legislative.” (§153) The people, acting through the Legislative, has the power to recall, replace, and punish the holder of the federative power if dissatisfied with its exercise. The stakes may well be high in this context, as Locke recognizes. In exercising their supervisory power—typically in this period over kings and princes—legislators may well need to draw on something like original constituent capacity. The Legislative, he says, “may assemble and exercise their Legislature, at the times that their original Constitution, or their own Adjournment appoints, or when they please; if neither of these hath appointed any time, or there be no other way prescribed to convoke them” (§153).

Heightened attention to the distribution of powers is part and parcel of any program of self-rule. But even for writers who shared Locke’s constitutionalist predilections, reference to a distinct foreign relations power was unusual. Locke had extensive professional interest in international and colonial affairs, ²⁸ but the prominence afforded to the federative speaks to the deep Ciceronian strand that pervades his thought. ²⁹ Both Cicero and Locke start from the proposition that peace is a moral imperative, cognition of which being the thing that separates man from animal. ³⁰ Both identify the external affairs power with the capacity to conclude binding promises, a capacity they associate in the civil condition with the power of the popular collective. ³¹ And both believe that peaceful coexistence is constructed through alliance networks intended to create bonds of friendship (amicitia) among political nations.

Just as the ability to make promises and agreements makes the state of nature more bearable than it otherwise might be, so the treaty-making capacity has the potential to make the political world more harmonious and predictable. The promise-making power animating both is the basic building block that allows us to change our relations with each other and, in doing so, to transform the conditions of our existence. The federative idea juxtaposes a wider political world governed by fate and war with one that has the capacity to be patterned by human creations—promises, compacts, treaties—offering an alternative to Hobbes’s conception of international politics as inescapably a state of war, where jealous nations are frozen in “the state and posture of Gladiators.” ³² That Hobbesian vision is at odds with Locke’s understanding of the world as at least potentially well-ordered. The prospect of limitless disorder undermines the very idea of the peaceful commonwealth. As Locke’s own political experiences taught him, unstable conditions abroad, and particularly the threat of international conflict, almost always intensify executive power, increasing the risk of misrule.

Conclusion

It may not be altogether surprising that Locke’s politics is grounded in a sophisticated theory of constituent power. He was more than familiar with the enactment of “positive constitutions.” As a young man, the son of a captain of Parliamentary cavalry, he experienced probably the first large-scale exercise in modern documentary constitution-making, Cromwell’s Instrument of Government (1653). Later, he had close and sustained exposure to colonial constitution-making as secretary to his patron Anthony Ashley Cooper, one of eight Lords Proprietors of Carolina, through successive iterations of the Fundamental Constitutions of Carolina. ³³ Later still, as senior member of a reorganized Board of Trade, Locke composed in his Virginia Plan of 1698 for extensive reform of the colony.

I will not stress the biographical case. I hope to have shown, however, how Locke’s political theory rests on a foundational distinction between Society and Government and defends a position whereby Society (or the people) can exist without the sword of Government, capable of collective action preeminently in sustaining conditions of peaceful coexistence through the enforcement of self-given laws. It is the innate law-giving character of the people that goes on to animate the legalism, parliamentarism, and institutionalism that define Locke’s theory of the constitutional state. It also shapes his understanding of exceptional executive action, enabling a redefinition of prerogative as a power derived from the people whose exercise requires ex post approval. But its ultimate manifestation is found in the right of resistance, conceived as an assertion by the people of its sovereign rights against a Government considered to be persistently in breach of public law obligations.