. Separation of Powers and the Dissolution of Government

Locke claims that legitimate government is based on the idea of separation of powers. First and foremost of these is the legislative power. Locke describes the legislative power as supreme (Two Treatises 2.149) in having ultimate authority over “how the force for the commonwealth shall be employed” (2.143). The legislature is still bound by the law of nature and much of what it does is set down laws that further the goals of natural law and specify appropriate punishments for them (2.135). The executive power is then charged with enforcing the law as it is applied in specific cases. Interestingly, Locke’s third power is called the “federative power” and it consists of the right to act internationally according to the law of nature. Since countries are still in the state of nature with respect to each other, they must follow the dictates of natural law and can punish one another for violations of that law in order to protect the rights of their citizens.
The fact that Locke does not mention the judicial power as a separate power becomes clearer if we distinguish powers from institutions. Powers relate to functions. To have a power means that there is a function (such as making the laws or enforcing the laws) that one may legitimately perform. When Locke says that the legislative is supreme over the executive, he is not saying that parliament is supreme over the king. Locke is simply affirming that “what can give laws to another, must needs be superior to him” (Two Treatises 2.150). Moreover, Locke thinks that it is possible for multiple institutions to share the same power; for example, the legislative power in his day was shared by the House of Commons, the House of Lords, and the King. Since all three needed to agree for something to become law, all three are part of the legislative power ( 1.151). He also thinks that the federative power and the executive power are normally placed in the hands of the executive, so it is possible for the same person to exercise more than one power (or function). There is, therefore, no one to one correspondence between powers and institutions.
Locke is not opposed to having distinct institutions called courts, but he does not see interpretation as a distinct function or power. For Locke, legislation is primarily about announcing a general rule stipulating what types of actions should receive what types of punishments. The executive power is the power to make the judgments necessary to apply those rules to specific cases and administer force as directed by the rule (Two Treatises 2.88–89). Both of these actions involve interpretation. Locke states that positive laws “are only so far right, as they are founded on the Law of Nature, by which they are to be regulated and interpreted” (2.12). In other words, the executive must interpret the laws in light of its understanding of natural law. Similarly, legislation involves making the laws of nature more specific and determining how to apply them to particular circumstances ( 2.135) which also calls for interpreting natural law. Locke did not think of interpreting law as a distinct function because he thought it was a part of both the legislative and executive functions (Tuckness 2002a).
If we compare Locke’s formulation of separation of powers to the later ideas of Montesquieu, we see that they are not so different as they may initially appear. Although Montesquieu gives the more well known division of legislative, executive, and judicial, as he explains what he means by these terms he reaffirms the superiority of the legislative power and describes the executive power as having to do with international affairs (Locke’s federative power) and the judicial power as concerned with the domestic execution of the laws (Locke’s executive power). It is more the terminology than the concepts that have changed. Locke considered arresting a person, trying a person, and punishing a person as all part of the function of executing the law rather than as a distinct function.
Locke believed that it was important that the legislative power contain an assembly of elected representatives, but as we have seen the legislative power could contain monarchical and aristocratic elements as well. Locke believed the people had the freedom to created “mixed” constitutions that utilize all of these. For that reason, Locke’s theory of separation of powers does not dictate one particular type of constitution and does not preclude unelected officials from having part of the legislative power. Locke was more concerned that the people have representatives with sufficient power to block attacks on their liberty and attempts to tax them without justification. This is important because Locke also affirms that the community remains the real supreme power throughout. The people retain the right to “remove or alter” the legislative power (Two Treatises 2.149). This can happen for a variety of reasons. The entire society can be dissolved by a successful foreign invasion (2.211), but Locke is more interested in describing the occasions when the people take power back from the government to which they have entrusted it. If the rule of law is ignored, if the representatives of the people are prevented from assembling, if the mechanisms of election are altered without popular consent, or if the people are handed over to a foreign power, then they can take back their original authority and overthrow the government (2.212–17). They can also rebel if the government attempts to take away their rights (2.222). Locke thinks this is justifiable since oppressed people will likely rebel anyway and those who are not oppressed will be unlikely to rebel. Moreover, the threat of possible rebellion makes tyranny less likely to start with (2.224–6). For all these reasons, while there are a variety of legitimate constitutional forms, the delegation of power under any constitution is understood to be conditional.
Locke’s understanding of separation of powers is complicated by the doctrine of prerogative. Prerogative is the right of the executive to act without explicit authorization for a law, or even contrary to the law, in order to better fulfill the laws that seek the preservation of human life. A king might, for example, order that a house be torn down in order to stop a fire from spreading throughout a city (Two Treatises 1.159). Locke defines it more broadly as “the power of doing public good without a rule” (1.167). This poses a challenge to Locke’s doctrine of legislative supremacy. Locke handles this by explaining that the rationale for this power is that general rules cannot cover all possible cases and that inflexible adherence to the rules would be detrimental to the public good and that the legislature is not always in session to render a judgment (2.160). The relationship between the executive and the legislature depends on the specific constitution. If the chief executive has no part in the supreme legislative power, then the legislature could overrule the executive’s decisions based on prerogative when it reconvenes. If, however, the chief executive has a veto, the result would be a stalemate between them. Locke describes a similar stalemate in the case where the chief executive has the power to call parliament and can thus prevent it from meeting by refusing to call it into session. In such a case, Locke says, there is no judge on earth between them as to whether the executive has misused prerogative and both sides have the right to “appeal to heaven” in the same way that the people can appeal to heaven against a tyrannical government (2.168).
The concept of an “appeal to heaven” is an important concept in Locke’s thought. Locke assumes that people, when they leave the state of nature, create a government with some sort of constitution that specifies which entities are entitled to exercise which powers. Locke also assumes that these powers will be used to protect the rights of the people and to promote the public good. In cases where there is a dispute between the people and the government about whether the government is fulfilling its obligations, there is no higher human authority to which one can appeal. The only appeal left, for Locke, is the appeal to God. The “appeal to heaven,” therefore, involves taking up arms against your opponent and letting God judge who is in the right.

. Separation of Powers and the Dissolution of Government

. Separation of Powers and the Dissolution of Government :: تعاليق

. Separation of Powers and the Dissolution of Government