Brief notes on Locke's theory of limited government Tom Atchison

According to Locke, the power of governments must be limited in the following ways:

1. Whatever laws are made must conform to the "law of nature' and aim at ‘the public good’, that is, they must have the effect of preserving and protecting the lives, liberties, and property of the citizens. The government does not have the right to undertake policies that would destroy those things. (§135, p.70-71)

2. The government must establish what has come to be called "the rule of law"; that is, rather than simply issuing orders whenever they want something done ("rule by decree"), the government must promulgate a relatively fixed code of laws ("standing laws"), which can be known in advance by the citizens. The laws must apply to everyone equally (there can't be one law for the rich or the nobility and another for the poor or the commoners). And those laws must be interpreted and applied by "known and indifferent judges". ("Indifferent" here means "impartial" or "unbiased".) (§136-7, pp.71-73)

3. The government may not take away people's property without their consent, or without, at least, the consent of the majority. (This is reflected in the American Revolutionary slogan, "No taxation without representation".) (§138-140, pp.73-74)

4. The government may not transfer its power to others. (Locke was concerned about a Protestant king bequeathing his throne to a Catholic prince, but the general principle is one we still accept: a legislator who resigns does not get to choose his or her own replacement. Likewise, the Congress of the U.S. does not have the right to turn us all over to be governed by the Parliament of Great Britain.) (§141, pp.74-75)

Locke argues for these limits by reminding us of his story about how governments came to exist in the first place: how 'men' who wanted to avoid the "inconveniences" of the state of nature consented to establish a government. His first argument is that, unless the power of government is limited in the ways specified, people would not be any better off than they were in the state of nature. It would not be rational for them to consent to a government that would have the power to take away their property or their lives arbitrarily (for example). Such a government would be more dangerous to them than the criminals and greedy neighbors who made their lives miserable in the state of nature. (See §131 and §137)

A second argument: Government is established when 'men' in the state of nature give up some of their rights, in order to attain a more secure protection of their remaining rights. This means that governments cannot have a right to do things that people in the state of nature did not have a right to do. Basically, people in the state of nature had only the following rights: to acquire property by "mixing their labor" with the fruits of nature; to keep and use their own property as they saw fit; to punish wrongdoers proportionately to their crimes; and to demand reparations from those who wrongly injure them. People in the state of nature did not have a right to take or use other people's property. So they could not give such a right to the government they were setting up. (See §135)

There is an ambiguity, though. A majority may empower the government to take property for legitimate public purposes. But what purposes are legitimate? Should government do nothing but protect peoples’ lives and property (the so-called minimal or “night watchman” state advocated by libertarians and classical liberals)? Or are there other important ways it may contribute to the public good (as modern liberals believe)?