It’s been more than twenty years since I read Locke’s Second Treatise for the first time. I thought it was a simple idea. People have natural rights. The government is created to protect natural rights. But if the government violates those natural rights, people have a right to revolt. This interpretation leaves little room for mistakes on the part of the government. But it also does not make intuitive sense. Would the people revolt over any violation to their natural rights? Has any government been entirely blameless?
Locke does make an explicit case for revolution “when the legislators try to take away and destroy the property of the people or to reduce them to slavery.” Yet he hedges this statement because it takes “a long series of abuses, lies, and tricks, all tending the same way.” In the end, it is not an attack on natural rights that is the crime. It is an “opposition to the laws.” Locke’s liberalism is based on the notion of the rule of law rather than innate natural rights.
Most of the Second Treatise does not discuss rights. It is focused on the nature of power and authority. The notion of paternal power continues to recur throughout Locke’s work not just because the basis of monarchical power was hereditary, but because paternal power establishes an alternative source of authority. Locke recognizes institutions establish different sources of authority. The family establishes parental authority. But modern society is filled with overlapping social institutions. Schools give teachers authority in the classroom. Military officers have authority over their soldiers. But the law has an authority over every person within its jurisdiction.
The Locke struggles with the notion of authority and its limits. The law becomes the ultimate source of authority. “Wherever law ends, tyranny begins.” Absolute Monarchy illustrates a problem with Locke’s fidelity to the law. An Absolute Monarch can change the law to his will. Moreover, any time he breaks the law, a monarch can simply refuse to enforce the law. This sets the monarch outside the bounds of the law and in the state of nature. This destroys the ideal of equality under the law. Yet this problem is deeper than absolute monarchy. The power to change the law makes its enforcement irrelevant.
The Hungarian government is an example where democratic institutions can corrupt the law. The Fidesz Party won a 2/3 majority in 2010. This allowed them to remake the constitution, redesign the legislature and pass any legislation they wanted without consideration for other segments of their society. Constitutionality was never a problem because they had the votes to change the constitution. Indeed, they had the votes to change the composition of the judiciary. The law is not threatened from a single person. Its threat lies in the institutions where power is concentrated.
It is important to understand Locke’s notion of law does not fall back on natural law. The law does not become a circuitous method to establish the primacy of natural rights. According to Locke positive law evolves out of natural law but is legitimized through the will of the people. Locke can be mistaken for Rousseau when he says, “…The essence of the society, and its unity, consists in having one will…” The different social contract theorists, Locke, Hobbes and Rousseau, believed in the supremacy of the law.
The Lockean social contract does not weaken the law. Rather, it emphasizes the supremacy of the law. The centrality to liberal political philosophy becomes a commitment to the rule of law. This leads to the creation of constitutions where the law is not easily changed or amended. Nonetheless, there is always a danger that political institutions will centralize power and weaponize the law as a tool. This fear is not misplaced. It has been realized in many countries around the world today.
jmk, carmel, indiana, firstname.lastname@example.org