Books 9 - 19

1. The attack on patriarchy in Books 6 8 has major political implications:

a. Locke totally rejects all paternalism in politics; parenting is in no way a

sound plan for governing.

b. Locke argues that even the sovereign authority (the government) needs to

be checked and limited by fundamental laws.

c. The great question then becomes, how to create a very powerful and

effective government that is also somehow checked.

d. Would it be possible to have a government that is terrifying but also itself

terrified?
2. Locke offers two very different but equally important plans for checking the

power of the government implemented by the social compact.

a. The first of these is the right of revolution.
b. The second is the separation of powers.
3. The right of revolution is the basic Lockean claim that those who make or later

enter into the social compact retain great individual responsibility to be vigilant
about government overstepping its legitimate bounds.
a. Locke insists that the compact must be actually and explicitly entered into
by every full citizen on reaching adulthood, and argues that tacit consent is
not enough to make one a full citizen (Sec. 122)
i. The original compact is a unanimous agreement to surrender most
of ones natural rights as well as commonly held property and law
enforcement power to the majority
ii. And then to whomever the majority designates as its representative
(Sec. 95-99).
iii.
Thus the majority selects the form of government.
b. But once the majority forms a government it does not then give away its
authority forever (as in Hobbes);
i. The majority may set a term of office for the government,
ii. Or the majority can insist that the government representatives be
periodically re-elected by the majority (sec. 132).
c. The majority remains the voice of the Commonwealth, and the
Commonwealth is not the same as the government;
i. The government can be dissolved and the Commonwealth remain,
for at least a short time;
ii. Authority can revert to the people, understood as the majority.
4. The right of revolution played a great a role in justifying the American and also

the French Revolutions. In both cases, liberals argued (following Locke) that:
a. When the majority becomes convinced that government has betrayed its
trust, and is becoming despotic or absolute;
b. And if there is no other recourse available, then, as a last resort, the
majority can rise up in violent rebellion

c. Without simply collapsing back into a state of anarchic nature and

disconnectedness; without destroying the Commonwealth.

d. And this legitimate threat of just revolution becomes the ultimate sanction

intimidating and keeping government in check.

5. But violent rebellion is of course an ultimate weapon that should never have to be

used if government is well designed: so what are the principles of well designed
government?
a. In what follows, Locke presents his case for the separation of executive
and legislative power, and the construction of institutions that enforce and
encourage that separation, as the answer to this question.
6. First and foremost, argues Locke, the supreme power in government should be

conceived as a legislative power.

a. A legislative power, or legislature, is a body that must rule by making
laws that apply to everyone in the same way;
b. In the America political system, this body is Congress.
7. Secondly, and equally important, is the separation of powers: this means,
a. That the people who administer the laws must be different from the people

who make the laws (sec 143).

b. That way, law makers (in the legislature/Congress) will realize that they
will not get to apply and interpret the laws, but they themselves will be
subject to other peoples administration (the executive/Presidency);
c. This will serve as an incentive for the lawmakers to write laws very
carefully, narrowly, and fairly.
8. On the other hand, those who administer, apply, and interpret the laws (the

executive power) cannot themselves make the rules that they apply and interpret;
a. The scope for their using the laws to exploit others will be narrowed as a
result.
b. In the American political system, this office (the executive), becomes the
Presidency.
9. To have the correct kind of institutions to guarantee the separation of powers

works in the way he argues it must, Locke shows himself to be in favor of a

mixed regime, featuring elements of monarchy (rule of the one), oligarchy (rule
of the few), and democracy (rule of the many).
10. This kind of regime also creates competing centers of government power, with

distinct bases of power: in other words, it creates permanent political competition.

a. Lockes principle here is, you should rely as little as possible on the virtue
of the citizens or the rulers, and instead:
i. Set up institutional mechanisms that will set groups in competition
with one another, in a way that keeps them acting in ways good for
the public, even (or especially) if they are all just being selfish.

b. Accordingly Lockes favored middle class is a commercial class, not a

farming or patriotic militia class.

11. Lockes of basic principle of relying on selfish competition within government

has been worked out in many different ways by modern constitutionalism.

a. Some examples
i. Federalism
ii. Bicameralism
iii.
The independent judiciary
iv.
The independent civil service
v. The two party or multi-party system
b. These can all be seen as variations on this fundamental Lockean notion.
12. As a final component of good government design and the separation of powers,

Locke points out that the executive and legislative powers each need to be
structured very differently in order to do their jobs:
a. The executive, especially when it has chief jurisdiction over foreign policy
and national defense, or what Locke calls the federative power, needs to
be constantly in operation, and needs to act with energy and speed and
often secrecy (especially as regards war and foreign policy).
i. It is not essential that the executive be elected; and if the executive
is elected, elections need not occur very often
ii. The executive may a king, chosen by heredity or elected for life, or
appointed by the legislature.
iii.
Locke does acknowledge that the person or persons who
hold the executive power do need prudence and wisdom (sec.
147),
b. The legislature, in contrast to the executive, can and should be made up of
representatives from various parts of the country;
i. And there is much less need that the legislators have unusual virtue
ii. The legislature need not always be in session; once it makes the
laws and reviews what the executive has done in administering the
laws, the legislature can go home;
iii.
But it is important that the legislature be re-elected
regularly, and fairly apportioned among the citizenry.
c. It is one of the most important duties of the executive to police this
apportionment, and insist on re-apportionment regularly, even if the
legislature refuses to make this legal.
13. And so here we have a leading example of how the executive must be invested

with what Locke calls a prerogative to defy the legislature sometimes,

a. And to do so perhaps by defying even their laws, or at least by acting
outside the letter of the law.
14. In Chapter 14 Locke elaborates on this executive prerogative.
a. He argues that, even though the rule of law is crucial, and the supreme

power should be a law-making power, that there are limitations of the

rationality of all laws or rules, or of trying to live simply by laws and
rules.
i. All sorts of emergencies may arise which are not covered by any
law, or which demand the suspension or violation of existing laws.
ii. It may be that the legislature is even passing laws that are clearly
bad for the interests of the people.
iii.
And of course this reserve authority only intensifies the
need for unusual wisdom in the person who holds the executive
power.
15. Locke concludes the chapter on prerogative by stressing that the ultimate limit on

government is the authority and capacity of the people, the majority, to rise up in
war against their rulers;
a. So, distrust and watchfulness of government, a tension between the
citizens and their government, and a willingness or readiness finally to
rebel, are crucial to a healthy society.
b. Locke thinks that the threat of violence on the part of an armed and
infuriated populace is essential
c. And that the occasional revolution or civil war is not necessarily a simply
bad thing.
16. In fact, Locke in the last sections of the Second Treatise suggests that, if anything,

the people tend to be too conservative and attached to traditions, even when they
are obviously oppressive;
a. The masses tend to be too obedient, too unwilling to risk themselves in
overthrowing bad or oppressive government (sec. 223, 225);
i. Knowing about the sluggishness of the masses, ambitious rulers
are likely to be less worried about trying to illegitimately extend
their rule in order to exploit the people for their own benefit.
b. And so Locke very willing to break with Hobbes in openly declaring the
doctrine of the right to rebellion.
i. And Locke does not limit this right to the majority;
ii. Locke also says that any private individual retains a right to resist,
by force, government acts that threaten his basic rights.
iii.
Now, the individual is unlikely to exercise this right, or, if
he does, he is unlikely to be considered as sane by the majority
(sec. 208)
iv.
And so it is only mass revolt, majoritarian uprisings, that
have a realistic chance of success.
v. But Locke implies (sec. 209) that it may make sense for
individuals or small groups to try to wake the majority to an
awareness of the dangers to all that are implicit in the oppression
of a few individuals, and so trigger that mass revolt.