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', 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)
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)
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)
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)
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 main 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.
Another argument he sometimes uses
(e.g., in §135): 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.
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)?