Locke,liberty,and law: Legalism and extra-legal powers in the Second Treatise

Abstract

The apparent inconsistency between Locke’s commitment to legalism and his explicit endorsement of the extra-legal power of prerogative has confounded many readers. Among those who don’t ignore or dismiss it, the common approach is to qualify the role or scope of prerogative. The article advocates the opposite approach. It argues that Locke’s legalism should be understood within the context of his oft neglected conception of political liberty in terms of self-government. This not only allows for the reconciliation of Locke’s legalism with his endorsement of extra-legal powers, but also provides a fuller, more accurate account of the role of law and of political liberty in Locke’s theory.

Keywords

Emergency law liberty Locke prerogative

Laws, when prudently framed, are by no means subversive but rather introductive of liberty; for (as Mr Locke has well observed) where there is no law there is no freedom. (William Blackstone, 2016: 86)

Introduction

In the wake of the attacks of September 11, 2001, political theorists have been revisiting Locke’s theory of prerogative in order to draw theoretical as well as practical lessons. As a champion of legalism, or restricting the exercise of political power to the execution of the law, Locke’s conception of necessary deviations from the law holds the promise of providing a useful framework for democratic societies, subscribing to the rule of law, faced with exceptional circumstances. But reconciling Locke’s notion of prerogative with his commitment to legalism is quite challenging. “[A]ll the power the government has, being only for the good of the society,” Locke says, “ought to be exercised by established and promulgated laws,” (Locke,1988 [1689]b: 137) from which “No man in civil society can be exempted” (Locke,1988 [1689]b: 94).¹ Locke defines political power as “a right of making laws” and of “employing the force of the community in the execution of such laws” (Locke,1988 [1689]b: 3) and he identifies legitimate political authority with one who “makes the laws the bounds of his power” (Locke,1988 [1689]b: 200).² Prerogative, on the other hand, is the “power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it” (Locke,1988 [1689]b: 160). It was this apparent inconsistency that prompted Shaftsbury’s nemesis, Halifax, to scold supporters of prerogative who “look like counsel retained by the prerogative against your old friend Magna Carta” (cited in Ashcraft, 1986: 480).

It is therefore hardly surprising that “most interpreters pass over in silence”³ Locke’s account of prerogative, in spite of the fact that he dedicates an entire chapter of the Second Treatise to it, while others dismiss it as “yet another example of Locke’s infamous inconsistencies” (Fatovic, 2004: 277). Among those who have tackled the issue and tried to reconcile it with Locke’s legalism, the prevalent strategy has been to restrict his endorsement of prerogative in various ways. The aim of this article is to propose the opposite approach. I will argue that the apparent inconsistency between Locke’s legalism and his recognition of extra-legal powers should be addressed not by modification or qualification of the latter, but by a reinterpretation of the former.

I begin in the second section by presenting the tension between Locke’s legalism and his account of prerogative as part of a broader question, namely his persistent positing of two potentially inconsistent standards for political legitimacy: law and the public good. This comes up in his discussion both of prerogative and of legitimate resistance of political authorities – two issues which pertain to the limits of legitimate authority and law. Then, in the third section, I will present an account of Locke’s legalism as instrumentally conducive to the protection of individual freedom by curtailing encroachments upon it by government. I will explain why, taken on its own, this account of legalism is not compatible with prerogative. In the fourth section, another account of legalism will be developed, according to which its instrumental role in limiting abuses of power should be understood within the context of Locke’s oft neglected theory of the consensual formation of the body politic and his related conception of political liberty in terms of self-government. I will argue that this account not only allows recognition of extra-legal powers, but is also more faithful both to Locke’s philosophical concerns and to his text. Finally, in the fifth section, I will reflect on some consequences of the proposed interpretation of Locke’s view.

Prerogative, resistance, and law

“[I]t is lawful for the people, in some cases, to resist their king” (Locke,1988 [1689]b: 232). This bold statement is one of the main arguments of Locke’s Second Treatise of Government.⁴ His argument for it relies on a distinction between rightful monarchs, who may not be resisted, and monarchs who exercise power beyond right, or tyrants. Yet, Locke’s definition of tyranny is apparently ambiguous:

Tyranny is the exercise of power beyond right … this is making use of the power any one has in his hands; not for the good of those, who are under it, but for his own private separate advantage. When the governour, however intituled, makes not the law, but his own will, the rule; and his commands and actions are not directed to the preservation of the properties of his people but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion. (Locke,1988 [1689]b: 199)

Replacing the law with the ruler’s will is not the same as acting against the people’s good. The first sentence in the passage entails that any exercise of power not in the public interest is illegitimate and can be justifiably resisted. The second sentence, however, expresses the legalist idea that any deviation from the law by the ruler is a transgression of his legitimate authority. As Locke puts it a few paragraphs later:

whosoever in authority 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, ceases in that to be a magistrate, and acting without authority, may be opposed. (Locke,1988 [1689]b: 202)

The ambiguity also appears in Locke’s comments summarizing the statements of James I:

the difference betwixt a king and a tyrant [consists] only in this, that one makes the laws the bounds of his power, and the good of the publick, the end of his government; the other makes all give way to his own will and appetite. (Locke,1988 [1689]b: 200)

A ruler can violate the law without abandoning the public good as their goal and, conversely, might keep the law, but act to further their own interests and not those of the people.

Both in his definition of tyranny and in his account of the criteria for legitimate resistance, Locke is employing two standards – law and the public good – which need not necessarily coincide. Thus, adopting one standard, executive violations of the law qualify as tyranny and warrant resistance, while the other allows resistance to political authority when it subverts the public good. The ambiguity can be eliminated if law is assumed to be perfectly congruent with the public good. But Locke does not subscribe to this dubious assumption, as his discussion of prerogative clearly indicates.

Prerogative is the power of a sovereign to act outside the bounds of the law when the public good so requires (Locke,1988 [1689]b: 160). Thus the very occasion for prerogative only arises when the two standards – public good and law – diverge. But if the public good and the law are not necessarily overlapping, the ambiguity in Locke’s justification of resistance is sustained. If government can act outside the law when it is deemed necessary for the promotion of the public good, resistance cannot be justified whenever, and just because, it exceeds the limits of law. And yet, Locke’s position with respect to prerogative is clear-cut – he does not doubt the validity, indeed the necessity, of prerogative despite its apparent conflict with the rule of law, to which he is clearly committed.

The discussion of prerogative brings the tension between the two standards – law and the public good – to the fore. Prerogative, Locke says, is:

nothing but a power, in the hands of the prince, to provide for the public good, in such cases, which depending upon unforeseen and uncertain occurrences, certain and unalterable laws could not safely direct, whatsoever shall be done manifestly for the good of the people, … is, and always will be, just prerogative. (Locke,1988 [1689]b: 158)

This does not seem compatible with the restriction of political power “by promulgated established laws not to be varied in particular cases” (Locke,1988 [1689]b: 142).

Some of Locke’s interpreters see this as an irredeemable inconsistency. Others try to dissolve it by modifying and qualifying the notion of prerogative. But, aside from the difficulties of reconciling them with Locke’s text (more on this below), such modifications seem to sidestep the issue instead of addressing it. As John Dunn (1982: 150) put it:

the dilemma of how to relate the functional necessity of binding prerogative power, power which is by definition in some measure legally indeterminate in its exercise, with the social and legal control of this power, is critical to Locke’s enterprise.⁵

One attempt to reconcile Locke’s account of prerogative with his conception of law is by playing down the role of the former,⁶ either by restricting its scope or by limiting its force. The first strategy is sometimes employed by confining prerogative to foreign affairs or to emergencies (see Gross and Ni Aolain, 2006: 123), and the second by imposing legal constraints on it (Feldman, 2013: 77). Neither approach fits Locke’s text, which suggests that prerogative is an extra-legal power which may be employed “without prescription of the law and sometimes even against it.”⁷ Although he highlights its indispensability in foreign affairs (Locke,1988 [1689]b: 147), Locke by no means restricts prerogative to this domain, nor does he confine it to emergencies (see Corbett, 2006; Feldman, 2013: 78–80; Wolin, 1987). Among his examples for its employment are strict domestic affairs such as “pull[ing] down an innocent man’s house to stop the fire when the next to it is burning” (Locke,1988 [1689]b: 159) and convening and dismissing Parliament (Locke,1988 [1689]b: 156, 167). As to emergencies, the need for prerogative may be most urgent in cases of emergency, but its justification is rooted in the inherent limitations of legislation. “Things of this world are in so constant a flux” (Locke,1988 [1689]b: 157), and legislators are not “able to foresee and provide, by laws, for all that may be useful to the community” (Locke,1988 [1689]b: 159). The general “uncertainty and variableness of humane affairs could not bear a steady fixed rule” (Locke,1988 [1689]b: 156).⁸ Consequently, “many things there are which the law can by no means provide for” (Locke,1988 [1689]b: 159). Moreover, “a strict and rigid observation of the laws may do harm” (Locke,1988 [1689]b: 159). This is why there seem to be no principled limits on the extent of prerogative – “a good prince,” Locke (1988 [1689]b: 164) writes, “cannot have too much prerogative.”

Some readers suggest that prerogative is limited by popular consent. Indeed, Locke is quite explicit that the exercise of prerogative is subject to evaluation by the public (Locke,1988 [1689]b: 162, 164). In opposition to monarchists like Filmer who, likening it to paternal prerogative, set no constraints on prerogative, Locke – whose aim was to separate parental and political authority – leaves its assessment in the hands of the governed. So in a sense it can be said that prerogative “has in fact no authority over the individual whatever” (Dunn, 1982: 155; see also Feldman, 2008: 19; Simmons, 1994: 218). But this is a normative constraint. Consent to the employment of prerogative is not given ex ante, but is an ex post judgment by the people, “their acquiescing in it when so done” (Locke,1988 [1689]b: 164; cf. 168). Therefore, it does not relieve the tension with legalism,⁹ which apparently is supposed to be not a moral, but a political, institutional safeguard against the abuse of power: “[T]hey shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty as it was in the state of nature” (Locke,1988 [1689]b: 136).

To gain clarity, we must turn our attention to Locke’s conception of law, particularly to his argument for legalism, or the restriction of political power by general, ex ante, public laws.

Locke on law I: Taming the lion

“Wherever law ends tyranny begins,” Locke (1988 [1689]b: 202) proclaims. The prevalent view among his contemporaries was the opposite: “where law ends, liberty begins.”¹⁰ Hobbes (1994 [1651]: xxi, 18) famously wrote that liberty “depend[s] on the silence of the law.” Locke’s other interlocutor, Robert Filmer (quoted in Locke,1988 [1689]b: 22), held that freedom is “a liberty for every one to do what he lists, to live as he pleases, and not to be tyed down by any laws.” This view is easily understood, for, as Hobbes (1994 [1651]: xxvi, 8) says, “law was brought in to the world for nothing else but to limit the natural liberty of particular men.”

Locke himself regards the conflict between law and liberty as a conceptual matter. Providing as the example of a moral proposition that enjoys the clarity and certainty of mathematical truths the statement “No government allows absolute liberty,” he explains:

The idea of government being the establishment of society upon certain rules or laws which require conformity to them; and the idea of absolute liberty being for any one to do whatever he pleases; I am as capable of being certain of the truth of this proposition as of any in the mathematics. (Locke,1975 [1689]: IV, iii, 18)

And yet, it is the same Locke who claims that “where there is no law there is no freedom” (Locke,1988 [1689]b: 57). But (anachronistically employing a later formulation) if “all coercive laws … are, as far as they go, abrogative of liberty,” as Bentham (1962 [1816]: 503) put it, how can Locke justify this claim?

In opposition to discretionary dictates, laws are general, prospective, publicly announced rules. Important disputes with respect to other details notwithstanding, the rule of law commonly involves two central elements, both affirmed by Locke: 1) Rule by law – that any and all exercise of political power shall be by means of properly enacted laws (see Locke,1988 [1689]b: 137); 2) Universality – that all, citizen and governor alike, are to be equally subject to all and every rule (see Locke,1988 [1689]b: 94). Thus understood, the rule of law requires the confinement of political power to the establishment, maintenance, and enforcement of general, prospective, public rules. Like many other modern political thinkers, Locke explains this requirement in terms of the relation between these features of law and individual liberty: “For liberty is to be free from restraint and violence from others which cannot be, where there is no law” (Locke,1988 [1689]b: 57).

The connection between law and liberty in terms of protection from interference by others emerges in Locke’s description of the erection of political authority from the state of nature.

If man in the state of nature be so free … why will he part with his freedom … and subject himself to the dominion and controul of any other power? To which ‘tis obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others …. This makes him willing to quit his condition, which however free, is full of fears and continual dangers. (Locke,1988 [1689]b: 123)

In the state of nature people are absolutely free (Locke,1988 [1689]b: 4, 87, 123), meaning not subject to political obligations (though subject to natural law). The exercise of this freedom, however, is limited by the threat of invasion by others. To protect against this threat, it is necessary and hence reasonable to unite into organized units of social cooperation with others and to establish a stable social order. But surely not all forms of social organization will do. Protection from the hazards of the state of nature requires first, Locke thinks, “an established, settled, known law” (Locke,1988 [1689]b: 124).

This is grounded in his understanding of the state of nature. Unlike Hobbes, Locke famously conceives of the pre-political state of nature not as a state of war, but as a “state of peace, good will, mutual assistance, and preservation” (Locke,1988 [1689]b: 19), governed by the law of nature (Locke,1988 [1689]b: 6). The problem is the absence of neutral arbitration, forcing individuals to be “judges in their own cases” (Locke,1988 [1689]b: 13), which, given their inescapable partiality, gives rise to conflicts. Civil society is intended not so much to rid us of the state of nature, as Hobbes would have it, but to secure the advantages of this state through political association.

The difficulty that naturally arises, however, is that with the institution of the state the problem may merely be pushed back, not solved. Once erected, the state itself seems to be beyond arbitration and therefore in a Lockean state of nature with respect to its citizens: “such a man, however entitled, Czar, or Grand Signior, or how you please, is as much in the state of nature, with all under his dominion, as he is with the rest of mankind” (Locke,1988 [1689]b: 91, cf. 13, 90, 94). Moreover, the “political” state of nature may actually be worse. In an absolutist state, where the sovereign is subject to the jurisdiction of no one, the sovereign themselves becomes the greatest threat (Locke,1988 [1689]b: 91, 93). Unless sovereign power can somehow be curbed and subjected to neutral arbitration, we find ourselves with the absurd idea that:

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 is 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. (Locke,1988 [1689]b: 93)

To avoid this absurdity, the sovereign must be subject to some external authority. These familiar ideas, along with the assumption that such external authority can only be the law, underwrite Locke’s legalism.

But how can laws restrain political authorities, especially if it is these very authorities who enact and enforce them? The first step towards an answer is clarifying Locke’s concept of liberty. Although he sometimes speaks of absolute freedom in the state of nature (Locke,1988 [1689]b: 87, 123), he clearly does not mean that people can relieve themselves of the laws of nature (Locke,1988 [1689]b: 4, 6). Locke explicitly states that in the state of nature individuals are subject to natural law (Locke,1988 [1689]b: 22). This is essential for his purpose, namely to draw an analogy between freedom in the state of nature, under the laws of nature, and political freedom. Following the ancient distinction between liberty and license, Locke is trying to articulate a concept of freedom that is not anarchic (what he calls in the Essay “absolute liberty”) and is nevertheless substantive. A liberty under law. His aim is to avoid Filmer’s identification of liberty with freedom from constraint by any and all laws, “A liberty for every one to do what he lists, to live as he pleases, and not to be tyed down by any laws” (Locke,1988 [1689]b: 22). Freedom thus understood is incompatible with any form of government, opening the door to Filmer’s absolutism: If government is necessary, as Locke agrees it is, and freedom is incompatible with it, it matters not whether it be limited or absolute, at least so far as freedom is concerned. Rejecting this picture, Locke proposes a notion of “freedom of men under government,” which is “to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it” (Locke,1988 [1689]b: 22).

Law is uniquely apt for addressing the threat of abuse of power because it has the built-in capacity to obligate everyone equally. Being by definition general, law is uniquely structured to obligate those in power. “The impartial execution of equal laws” (Locke,1963 [1823]: 10) thus ensures that “No man in civil society can be exempted from the laws of it” (Locke,1988 [1689]b: 94). Perhaps voluntaristic decrees can also bind their makers. But whether they are issued or not and what their scope is will depend solely on the legislators’ discretion. If, on the other hand, the only way to rule is by standing, general laws, the sovereign will always be obligated by what is legislated. By obligating its authors, law is a mechanism of exercising political power while ensuring that rulers are “kept within their due bounds” (Locke,1988 [1689]b: 137). The very means of government, then, turn out to be instruments for curbing its power, ensuring that it does not become intrusive and oppressive.

To summarize, the picture we get from these parts of Locke’s argument is this. People are naturally free, but their exercise of this freedom outside political society is limited due to the frailties of human interaction. Social conflict arises because judgment is tainted by self-love, and therefore, since its role is to overcome conflict, the state must provide neutral arbitration for all. Individuals unite into organized political communities by transferring their natural freedom to judge and enforce the laws of nature to an assembly of representatives. Armed with the joint force of all members of society, this assembly extracts all of them from the state of nature with respect to each other. But the concentration of power in the hands of the assembly can cause the whole scheme to backfire because it can now encroach on individuals’ liberty with no restraint. To remedy this situation, the exercise of political authority should be restricted to the employment of law, which, obligating everyone equally, eradicates the state of nature with respect to the assembly as well. This is no absolute guarantee against oppression, but tends to ensure it as all legislation will apply equally to the legislators, discouraging them from passing oppressive measures. Thus law, along with the state itself, is instrumental for the protection of liberty. The state protects individual liberty from internal and external threats by others, and the rule of law protects the liberty of individuals from the state.¹¹ This is a familiar picture of Locke as a liberal theorist concerned with the protection of individual liberty from encroachment by the state, advocating the separation of powers and the rule of law as the principal means of its implementation.

On this line of reasoning, legalism is incompatible with the endorsement of extra-legal action by public officials. If the “supreme power of any commonwealth” must be employed only “by establish’d, standing laws, promulgated and known to the people, and not by extemporary decrees” (Locke,1988 [1689]b: 131), there is no room for prerogative. If legislators could be trusted not to abuse discretionary power, as the admittance of prerogative seems to imply, then this line of argument – regarding the limitations imposed by the rule of law as a necessary check on power – is misguided. In other words, the power of prerogative cannot be reconciled with the rule of law, if the latter is driven by the aim of limiting government power by setting legal constraints on it, which consists in governing “by promulgated established laws not to be varied in particular cases” (Locke,1988 [1689]b: 142). For, as Dunn explains:

because … prerogative has to be seen as a reserved power which cannot finally be subject to a purely constitutionalist criterion and because its application … is a matter of private judgment on the part of its bearer, it eludes that careful tissue of legal restraints which men have devised over the centuries for their protection against their rulers. (Dunn, 1982: 151)

But Locke’s limited government argument for the rule of law has another emphasis. The restriction of power by the rule of law guarantees that legislation aim at the public good and not at the private advantage of those in power. As Locke explains, the legislators “are themselves subject to the laws, they have made; which is a new and near tie upon them, to take care, that they make them for the publick good” (Locke,1988 [1689]b: 143).¹²

If the rule of law is subordinate to the promotion of the public good, then a case can be made for violating it whenever the public good so requires. But aiming at the public good is not the same as not interfering with the rights of individuals. Sometimes, the most effective way to promote the public good entails sacrificing the interests and even the rights of some individuals. The very point of rights (or justice), as Rawls (1999: 3) stresses, is the denial of the idea “that the loss of freedom for some is made right by a greater good shared by others.” Whether it is a set of strictly formal conditions, on what Dworkin called “the rule-book conception,” or his own more substantive “rights conception,” which includes “an accurate public conception of individual rights,” the rule of law cannot be overridden by the public good on this view.¹³

Locke on law II: The body politic

Alongside the limited government justification of legalism, i.e. as a means of protecting liberty by curbing power, the Second Treatise includes another line of thought about the relation between law and liberty. On this line of thought, political freedom is closely associated with consent of the governed:

The liberty of man in society is to be under no other legislative power, but that established, by consent, in the commonwealth, not under the dominion of any will, or restraint of any law, but what the legislative shall enact, according to the trust put in it. (Locke,1988 [1689]b: 22)

The requirement of consent of the governed has on its face nothing in particular to do with law as an instrument for curbing power. The prime biblical example of monarchy, Saul, was anointed upon the request of the Israelites “Give us a king to judge us” (Samuel I, 8:6). Its consensual genesis apparently had no implication for the extent of this monarchy’s authority, as Samuel cautioned the Israelites. People can consent to the rule of an absolute monarch and accept a sovereign who is above the law.¹⁴

Consent has two functions in Locke’s political theory. One role of consent is creating an obligation to obey the law. This is a temporary state from which one can opt out and for which tacit consent suffices (Locke,1988 [1689]b: 119). The other role Locke reserves for consent is entering society as a permanent member. Such consent, which must be explicitly given (Locke,1988 [1689]b: 121–122), is paramount in Locke’s account of the institution of the state and its laws. Once express consent is given one cannot free oneself from obligations to the state and therefore one loses the liberty of the state of nature for good (Locke,1988 [1689]b: 121). But, more important for present purposes, it is by virtue of consent that individuals “joyn and unite into a community” (Locke,1988 [1689]b: 95) and, consequently, their liberty is protected under law. This idea, central to Locke’s conception of political freedom, turns on the idea of the body politic created by consent.¹⁵

The first,¹⁶ and crucial, compact is the compact of association (pactum unionis), in which every individual “puts on the bonds of civil society … by agreeing with other men to joyn and unite into a community” (Locke,1988 [1689]b: 95). By virtue of this agreement, the multitude of individuals is united into “one body politick,” which can act as a unified whole. “For when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body” (Locke,1988 [1689]b: 96). It is this “agreement which every one has with the rest to incorporate, and act as one body” (Locke,1988 [1689]b: 211) that political society is formed as it transforms the multiplicity of wills into a single will. “For the essence and union of the society consists in having one will” (Locke,1988 [1689]b: 212).

The will of this “publick person” (Locke,1988 [1689]b: 151) is determined by the majority within it, as in any body the strongest part within it determines its will. Yet “the act of the majority passes for the act of the whole” (Locke,1988 [1689]b: 96) and “concludes every individual” (Locke,1988 [1689]b: 98). Consequently, by consenting to unite into civil society, “to make one people, one body politick” (Locke,1988 [1689]b: 89), every individual “puts himself under an obligation to every one of that society” (Locke,1988 [1689]b: 97, emphasis mine). Thus, society is “governed by its own laws” (Locke,1988 [1689]b: 217) and, more dramatically, “… every single person became subject, equally with other the meanest men, to those laws, which he himself, as part of the legislature had established” (Locke,1988 [1689]b: 94, emphasis mine).

But the political authority “has no will, no power, but that of the law,” which is just the “publick will of the society” (Locke,1988 [1689]b: 151). This will is “declared in its laws” (Locke,1988 [1689]b: 151). In entering society, each individual gives up their powers, but not to another individual. Rather, power is transferred to the legal structure instituted by the whole of society of which he or she is a constituent (Locke,1988 [1689]b: 129). The laws “are the will of the society” (Locke,1988 [1689]b: 214), and the rule of law is the rule of this will:

all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules. (Locke,1988 [1689]b: 87)

When subject to the law, therefore, members of the society are governed not by others but by a will which is in an important sense their own. As Locke puts it, having “united into one body” (Locke,1988 [1689]b: 87) with others, “the judgments of the commonwealth … indeed are his own judgments, they being made by himself or his representative” (Locke,1988 [1689]b: 88).

“Representative” here, I submit, should be understood as an agent acting on one’s behalf. Locke’s repeated descriptions of political authority in terms of people’s rights entrusted into the hands of officials, and of officials as “trustees” or “deputies” (Locke,1988 [1689]b: 240), express a principal-agent conception of political authority. Agency is a fiduciary relationship in which one party, the principal, acts through another, the agent, who can assume obligations and liabilities on the former’s behalf.¹⁷ Political authority, Locke says, is a fiduciary power entrusted to officials “deputed” by the people to act on their behalf (Locke,1988 [1689]b: 149, 156, 240). They represent not separate individuals, but the people as a whole. They are “to be considered as the image, phantom, or representative of the commonwealth, acted by the will of the society, declared in its laws” (Locke,1988 [1689]b: 151).

Thus, like many of thinkers of his time, Locke is offering an account of the formation of political societies in terms of authorization and representation.¹⁸ The fundamental role of consent, on this account, is to establish a body politic wherein individual citizens are responsible for the decisions of their representatives, acting on their behalf and in their name. The emphasis here is on self-government, rather than limited government.¹⁹ For Locke this unified body consists in the ability to pass judgment on behalf of all. Each individual “authorizes the society, or which is all one, the legislative thereof to make laws for him as the publick good of the society shall require” (Locke,1988 [1689]b: 89). Thus, “the community comes to be umpire,” not by having a single unlimited will, but “by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community for the execution of those rules” (Locke,1988 [1689]b: 87).²⁰ Being subjected to laws enacted by a legislature to which one has consented is not only a means for minimizing potential encroachment by the state on individual freedom, but a constitutive element of exercising self-rule.²¹

The conception of liberty as self-government explains Locke’s otherwise curious analogy between the laws of nature and political laws:

Is man under the law of nature? What made him free of that law? What gave him a free disposing of his property according to his own will, within the compass of that law? I answer; state of maturity wherein he might be supposed capable to know that law, that so he might keep his actions within the bounds of it. […] is a man under the law of England? What made him free of that law? That is, to have the liberty to dispose of his actions and possessions according to his own will, within the permission of that law? A capacity of knowing that law. (Locke,1988 [1689]b: 59)

The law of England, then, is analogous to the law of nature. With respect to both there is a sense of freedom under the law which relies on the ability to know it. Taken on its own this passage might be read as claiming that liberty under the law consists in the ability to know what one is and is not allowed to do without violating it. Besides the fact that this is not an interesting claim nor an illuminating notion of liberty, it is not the reading suggested by the context.

The passage appears in the course of Locke’s argument against the idea that political authority is an extension of paternal authority. As stated above, Locke’s strategy is to argue for the consistency of paternal authority with natural freedom.²² Children, he claims, must be subject to their parents’ authority as a necessary temporary phase before they can be completely free, because freedom requires the possession of reason. Lacking reason, or “understanding,” a child does not possess the means to properly direct their will and therefore does not get to follow their own will.²³ “He that understands for him, must will for him too” (Locke,1988 [1689]b: 58). As distinct from the Filmerian notion of freedom as “a liberty for every man to do what he lists,” freedom for Locke is conditioned by reason.

The freedom then of man and liberty of acting according to his own will, is grounded on his having reason, which is able to instruct him in that law he is to govern himself by, and make him know how far he is left to the freedom of his own will. (Locke,1988 [1689]b: 63)

Letting someone loose without the proper guidance of reason is not setting the person free but is rather subjecting him or her to the dominion of brute passions and urges. This conception of liberty is developed in Locke’s Essay Concerning Human Understanding. There Locke identifies “the source of all liberty” in the “power [of the mind] to suspend the prosecution of this or that desire,” the “liberty to consider the objects of them, examine them on all sides” in order to direct “our conduct to true happiness.” Having one’s actions determined by reason, Locke says, “is not an abridgment, it is the end and use, of our liberty,” because “the highest perfection of intellectual nature lies in a careful and constant pursuit of true and solid happiness, so the care of ourselves, that we mistake not imaginary for real happiness, is the necessary foundation of our liberty” (Locke,1975 [1689]: xxi, 47–53). To be free is to be left unrestrained to pursue one’s interests, where restraints on this pursuit can be either external or internal (i.e. urges, desires and passions). Reason is human beings’ device for overcoming the latter by attaining knowledge (Locke,1975 [1689]: IV xix; cf. Locke,1988 [1689]a: 86). It follows that suspension of authority from persons lacking reason is not their liberation, but their abandonment to domination by their passions.

Liberty, then, is not uninhibited execution of desires (or license), but governing oneself in light of reason. It consists in the ability to know the laws of nature and to adhere to them. It is a capacity for self-restraint in accordance with the laws of nature which requires the employment of reason, or imposing rational judgement over one’s desires and inclinations. Rationality is a potential which has to be developed over time. Those who lack it cannot be subject to law (Locke,1988 [1689]b: 57) and are incapable of freedom. Children, Locke says, are not under law and “being not presently as soon as born under this law of reason were not presently free” (Locke,1988 [1689]b: 57). Neither are “lunaticks and ideots” who cannot “be supposed capable of knowing the law, and so living within the rules of it,” and are therefore “never capable of being a free man” (Locke,1988 [1689]b: 60). One can be free only upon reaching the degree of mental maturity that allows him or her to understand the law, which is necessary for liberation (Locke,1988 [1689]b: 59). Rationality and freedom develop together, both require maturity – “age, that brings one, brings with it the other too” (Locke,1988 [1689]b: 61).

The law of reason is a guide to one’s true interests and is thus not a limitation of freedom. “That ill deserves the name of confinement which hedges us in only from bogs and precipices” (Locke,1988 [1689]b: 57). Thus conceived, law turns out to be not merely consistent with individual liberty, but a constitutive condition of freedom, and Locke can assert that “where there is no law there is no freedom” (Locke,1988 [1689]b: 57). The analogy with laws of nature and the idea of liberty under law, then, run deep. In both cases, being subject to the law and being free under it go together. The rule of law is an extension of natural law in that both stand between liberty and license. To be subject to the law one must be capable of understanding it; the “state of freedom” is identified with a developed understanding which is capable of governing the will.

But at this point the analogy with natural law might seem to break down. How are positive laws of the state necessary for personal freedom in the sense of liberty from desires and urges? For the analogy to work it must be assumed that laws are conducive to the achievement of people’s true ends. But this is only true of good, or just, laws and even then such laws will at best be conducive to the common good, not necessarily to the good of each and every individual. It takes no more than the example of being sent off to defend one’s country at one’s own peril to demonstrate that social and private interests do not always coincide. Furthermore, if laws are justified by their relation to the common good, the way in which they are legislated should not matter. Whether citizens are involved, consulted, or consent to the laws will have no implication on their legitimacy, so long as they facilitate the attainment of the people’s “greatest good.”

But the conception of liberty as self-government through partaking in a self-legislating body politic resolves these issues. On this picture law is not primarily a device for restraining the exercise of political power (though, as I will later suggest, it is also that). Rather law is constitutive of self-rule, of being governed by one’s own will through the collective exercise of political power. Although the extent of permitted actions may be limited, if liberty is understood as self-government, “this would be still as great a liberty, as he himself had before his compact” (Locke,1988 [1689]b: 97). In fact, thus understood, law does not limit but rather “enlarges” freedom (Locke,1988 [1689]b: 57).

For law in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interests, and prescribes no farther than is for the general good of those under that law. (Locke,1988 [1689]b: 57)

Because laws can embody the public will, since they are by nature applied equally and generally, the rule of law is the proper form of government for a society of free individuals who all participate in the formation of the one body politic and are subject only to its dictates. Under such a political order no one is subject to the will of another. Each individual is subject together with all fellow citizens to a single will which they themselves constituted and all are in this sense self-governing. If this picture is cogent, political subjection under a rule of law can be a form of self-rule: “every single person became subject, equally with other the meanest men, to those laws, which he himself, as part of the legislature had established” (Locke,1988 [1689]b: 94, emphasis mine).²⁴

Now, if liberty is understood not primarily as a domain of action free of political intervention but as self-rule through participation in a self-governing body politic, then there is room for extra-legal employment of political power. For what makes an act an official one that is done on behalf of the public and in its name is, most fundamentally, that it is done for the public good. Indeed, Locke often stresses that the fundamental role of government is to promote the public good (Locke,1988 [1689]b: 3, 110, 131, 135). When the law is upright, this can normally be achieved by following the law – as we have seen, the rule of law is supposed to provide “a new and near tie upon [legislators], to take care, that they make [the laws] for the publick good” (Locke,1988 [1689]b: 143). But effective as this might be, exceptions are inevitable, since laws are inevitably imperfect (Locke,1988 [1689]b: 160). When the public good and the law conflict, the former must take precedence:

if there comes to be a question between the executive power and the people, about a thing claimed as a prerogative; the tendency of the exercise of such prerogative to the good or hurt of the people, will easily decide that question. (Locke,1988 [1689]b: 161)

Ultimately, then, the public good determines whether a decision is just, not the law.

We can now see why law’s constitutive contribution to self-rule is not undermined by exceptional deviations, especially when they are aimed at the common good and retrospectively seen as such.²⁵ The government is the people’s agent, acting on their behalf – the legislator in the creation of laws and the executive in their execution. When it acts, it is as if the people themselves have acted, so long as it acts within the bounds of the trust it was granted (Locke,1988 [1689]b: 151, 222). The law expresses the people’s conception of the common good, thus acting on their behalf ordinarily means the execution of law as fixed by the legislative. But even the best laws will have exceptions. A good agent will pursue the interests and intentions of his or her principal when they diverge from the latter’s express direction.²⁶ Since “the uncertainty, and variableness of humane affairs could not bear a steady fixed rule, … the best remedy could be found for this defect, was to trust this to the prudence of one … whose business it was to watch over the publick good” (Locke,1988 [1689]b: 156). Justly employed, Locke writes, prerogative is an act of the people: “whenever the people shall chuse their representatives upon just and undeniably equal measures suitable to the original frame of the government, it cannot be doubted to be the will and act of the society” (Locke,1988 [1689]b: 158). So long as the agent is acting for the public good, he or she is acting on behalf of and in the name of its principal – the people. The agent’s decision is their decision, so self-rule is not essentially undermined.²⁷

This also explains the role of retrospective consent to the exercise of prerogative. If the primary role of law is not to put in place restraints on power, but to create a regime of self-legislation, then ex-post popular consent is indeed relevant. Consent or the lack of it will reveal whether the exercise of power by prerogative was in fact done in the name of “the body of the people” (Locke,1988 [1689]b: 242), or whether it was a private act and hence an employment of “force without authority” (Locke,1988 [1689]b: 155). Only the people can judge if the exercise of power was done on their behalf and in their interest or not (Locke,1988 [1689]b: 168, 240).²⁸

Finally, this reading makes sense of Locke’s comments on tyranny, and is consistent with his statements about legitimate resistance. The clause describing the legitimate sovereign as “making the law the bounds of his power” will be interpreted as referring not to law as such, but only to laws that are conducive to public good, or to the meta-law that all political action must serve the public good – “Salus populi supreme lex” (Locke,1988 [1689]b: 158). A tyrant is one who employs the public authority with which they have been entrusted towards the promotion of personal ends and not the public good, which, in turn, justifies resistance. Thus it is not the legalist conception (according to which all must be equally subject to the law) that grounds Locke’s justification of resistance, but his moral condition of political legitimacy, namely “the peace, safety, and publick good of the people” (Locke,1988 [1689]b: 131). And it is this same rationale that underlies his legalism as well.

Clarification and consequences

I have argued that Locke’s endorsement of prerogative can be reconciled with his legalism if the latter is understood to be based on the rationale of collective self-rule through consensual representation rather than as part of the more familiar framework of limited government. It might be suggested that this merely pushes back the inconsistency rather than resolves it. It may appear that I have gained the accommodation of prerogative with legalism only at the price of creating an inconsistency between two accounts of the role of law in Locke’s theory.

I do not think that rendering a text fully coherent should be the ultimate aim of exegesis, or that consistency should be bought at any price. Bringing out a significant element of a theory that has not received due attention is important in its own right, as is identifying inconsistencies correctly. Nevertheless, it seems to me that in this instance more can be gained. Properly understood, the two arguments for legalism need not conflict.

On the line of reasoning proposed in the previous section, law and prerogative are both subservient to the more fundamental aim of promoting the public good. When employed for the public good, therefore, prerogative does not offend against this rationale for the rule of law because it is “conformable to the foundation and ends of all laws, the public good” (Locke,1988 [1689]b: 165). But this is also the underlying rationale of the limited government argument for legalism. Locke’s reason for limiting political authorities by restricting their use of power to the law is also based on the idea that government’s role and the terms of its mandate (and consequently the bounds of its legitimacy) are the promotion of the public good. “The great end of men’s entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society …” (Locke,1988 [1689]b: 134). The justification for legalism is purely instrumental – law, like the state itself, is “a great instrument and means” (Locke,1988 [1689]b: 134) for the protection of property (i.e. “lives, liberties and estates” (Locke,1988 [1689]b: 123)) within the state and from the state. As with any instrumental justification this one too has its limits, and when those are reached, transcending the legalistic restrictions is perfectly compatible with its underlying rationale. In other words, governing “by established standing laws, promulgated and known to the people” (Locke,1988 [1689]b: 131) is generally conducive to the public good, as it tends to limit abuses of power and allows citizens to form reliable expectations about the consequences of their actions (Locke,1988 [1689]b: 136–137). Yet, it is an instrument, not a panacea; and like every instrument, it is not perfect. Even the best laws will have exceptions, that is circumstances in which their aim is better served by acting “extra et contra legem.” In ordinary circumstances, restricting public authorities to the enactment and enforcement of the law will serve the public good. But there will always be exceptions. When the law does not serve the public good the latter must take precedence, as it is the grounds of the rule of law in the first place. When it functions properly and when circumstances are ordinary the rule of law may facilitate negative liberty by curbing abuse of power. But law’s primary role is to promote the good and this might require paternalistic interferences with individual choices, and, on the other hand, might justify violating the law (as in the case of prerogative). Thus, for Locke, the rule of law and prerogative are not only consistent but are actually complementary. And the two accounts of law are therefore compatible: one specifying its part in a system of collective self-government and the other its instrumental role in promoting the public good.

Though my aim here is not to draw practical prescriptions from Locke, there are three implications of the proposed account of Locke’s views about law and extra-legal measures that are worth noting. First, according to the Second Treatise law and prerogative are not two types of regimes, one for ordinary circumstances and one for emergencies. In contrast to the way it is sometimes understood, on the reading proposed here Locke’s theory of prerogative is not a theory of emergency, i.e. circumstances of extreme threat to the very existence of the political order or its constitution, but a theory of exceptions.²⁹ Since the rule of law normally serves to curb abuses of power, violations of the law come at a cost to the public good. They can therefore be warranted only when the consequences of adherence to law are grave enough so as to outweigh the inevitable cost of violating it. While it may be contingently true that the situations whose consequences are likely to be onerous enough to outweigh the instrumental merits of the rule of law are emergencies, there is nothing inherently special or unique about emergencies. Locke’s concern therefore is not with how to address urgent existential threats, which require special non-legal instruments, but rather the broader question of executive discretion. As he says in section 159: “… the good of the society requires that several things should be left to the discretion of him that has the executive power.” Locke’s main objective here, consistent with the general aim of the Treatises, is to transform the idea of prerogative from a regal right to arbitrary power grounded in the king’s personal authority (as Dominus Rex), into a political institution grounded in and limited by the principle aim of government – protection of property and promotion of the public good.

Second, according to Locke, prerogative is genuinely extra-legal, outside the constitutional order.³⁰ But, third, though extra-legal, prerogative is not arbitrary. The employment of prerogative is beholden to the public good and subject to popular assessment (Locke,1988 [1689]b: 168). As Pasquino (1998: 205) sharply put it: “Above, with prerogative, and below, with the right to resist, the political-constitutional system … remains open to the exceptional case; to be sure, it stands very far from any ‘absolutist/decisionist’ political theory, on one hand, and from any ‘rationalistic’ hypothesis, on the other.”

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

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