Wednesday, October 12, 2011

John Locke's 2nd Treatise - My Interpretation

Locke bases his arguments regarding political power and laws on his belief that early man’s initial existence was in a state of nature, where all are equal in authority, none having the right of dominion over another, and all enjoy the natural right to perfect liberty1.  This state of nature is governed by the laws of nature.  He asserts the laws of nature, governed by reason, require that each act in a manner consistent with his self-preservation, and do no harm to another’s life, health, liberty or possessions2.  He further explains that if a man is in competition with another, he is obligated to see to his self-preservation first, and when not in competition with another it is his duty to see to the preservation of others3.  When all in a state of nature obey the laws of nature, peace is assured.  In a state of nature, with all men equal and none having superiority over the other, each individual has the natural right to justly punish those who are in violation of the laws of nature, giving natural law force, as those who have violated a law have set themselves outside of the law and is a danger to mankind4.  This is how, in a state of nature, one comes to have lawful power over another, and may do harm to him for reparation and restraint, according to calm reason and the dictates of conscience5.
Locke identifies the problem with this execution of the natural laws when he acknowledges that it is unreasonable for the one wronged by a violation of the law by another to be the one executing the law, seeking redress and restraint through punishment, because they are likely to be ruled by their passions and not dispassionate reason.  Locke then asserts that the correct remedy is civil government6.  He goes on to state that in cases of absolute monarchy, where one person has the authority and liberty to judge in his own cases, and may do to the citizens whatever he wishes, it would be better to revert back to a state of nature than to suffer the rule of such a civil government7.   He reaches this conclusion as a result of how he sees absolute monarchs.  He sees them as being in a state of nature in relation to other sovereigns, and in a state of nature in relation to their subjects, because they are not a part of a political body, but are outside it since they do not consider themselves to be a part of the community of sovereigns or their subjects.  A state of nature is where all men exist until they willingly consent to make themselves a part of a political community or society8.  Locke then ties all of the aforementioned principles together, with the principle of consent being paramount for civil society, when he states, “The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth, nor under the dominion of any will, or restraint of any law, but what the legislative shall enact according to the trust put in it.”9 (Emphasis added) One of the most important aspects of the legislative power, according to Locke, is that it is limited to the public good of the society10.   Locke explicitly states that the power of enacting laws granted to the legislators can, because they’ve been granted through trust in the first place, be revoked by the people and given to new legislators when the trust has been violated11.  It is because of this that the sovereign, who has the granted, legitimate right of making laws, enters into a compact with the rest of society to see to the protection of the property of all the subjects may, by violating the trust put in him and failing to pursue the public good, have the power and authority of lawmaking removed from him and granted to another. 
As can be seen, Locke’s foundation for government and law is one based on his interpretation of natural rights and natural laws that lead him to some very important conclusions.  First, the power and authority to act to the limits of one’s capabilities is held equally by all individuals in a state of nature, and each person is obligated by natural law to direct that power in a way that promotes and protects one’s health, life, and property.  Second, in order to move away from a state of nature and its attendant risks and dangers to one’s self-preservation, people choose to enter into a compact and create a civil government where they willingly grant some of their natural rights, power, and authority to a commonwealth (the body of people as a whole), which in turn cedes those rights to a sovereign who will be supported in the execution of civil law and who, in return for this authority, enters into an agreement with the populace to use the authority for the benefit of the common good.  Third, the authority granted, because it is a natural possession of the people, may be taken back by the people if they believe the sovereign is in violation of the agreement, and then give those powers to another. 
The above three points deal specifically with the transfer of natural rights (inherent individual power) from the people and to a sovereign, under natural law, through agreement.  As can be extrapolated from Locke’s basic foundation, the form of a sovereign power is irrelevant.  The above can be applied satisfactorily to any form of government whether a democracy, monarchy, or aristocracy.  In each form of government the people have the natural right, as individuals to leave civil society and enter into a state of nature/war against the sovereign and the rest of society, or as a collective to remove their granted powers from the sovereign by any means necessary and grant them to another.  Furthermore, because of the nature of the sovereign’s responsibility to execute laws, the sovereign will have more resources at his disposal, operating under his direction and at his discretion, than anyone, or any few members of the community with which he is in compact with.  This will create an imbalance of power such that it is likely that only when a majority of the community is willing to revoke their power and replace the sovereign will it happen.  Until that point is reached, the people, by not revoking their granted powers to the sovereign, are giving tacit approval for the sovereign and would need to be seen as opposing any who seek to enter into a state of war against the sovereign.  This requirement of a majority, in either direction, is what makes the principles Locke espouses, at their core, democratic in nature even while not requiring a democrat form for the government.
At this point it needs to be explained that two distinct powers, previously discussed, are held by a sovereign: legislative power and executive power.  One power, the executive, is that power to act according to natural rights and natural laws, in a manner that promotes self-preservation (of the community and its members), and it exists both in a state of nature and in a state of civil society12.  The other power, the legislative, is the power to make laws that restrict action in order to promote the self-preservation of all, for the common good, by determining how executive force is to be applied in the furtherance of that end, and only exists in a state of civil society as a power that comes into existence as a result of the social contract between the people and the sovereign13.  These powers may be held jointly by one, as is the case in absolute monarchies, or they may be held by two or more distinct civil authorities as they are in the United States. 
Upon the agreement of a community of individuals to create a commonwealth, there is a created, second power that comes into existence at the same time as the legislative power: the federative.  As an individual has a natural right to see to his self-preservation, so too does a commonwealth as an individual entity, or construct, have the same natural rights to see to its self-preservation.  The power of a commonwealth to exercise these extrapolated natural rights are called Federative and is an acknowledgment that as a community, separate from other communities, having only entered into a compact amongst themselves, excluding outsiders, it is still in a state of nature in relation to those outside powers, whether they be individuals or other commonwealths14.   This direct quote most eloquently and succinctly states both the limits and extent of the federative powers.  “This therefore contains the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities without the commonwealth…”15 The execution of federative powers, being such that they are the powers of the commonwealth as a whole, taken as a single entity, and for the common good, may at times operate outside of any specific laws or even in violation of laws already agreed upon.  This conflict, though more readily apparent in the exercise of federative power than executive because of the scrutiny under which it operates, is more prone to being interpreted in the moment by the immediate passions of the individuals of the commonwealth, with their accompanying biases, than an act that is perceived to be just because it is done in accordance with, and therefore restricted by, previously enacted positive law.
The Wall Street Journal reported, on October 12, 2011, the foiling of an Iranian attempt to bomb a fictitious restaurant where a Saudi diplomat was alleged to spend time, as well as the Saudi and Israeli embassies in Washington, D.C16.   The U.S. has already issued sanctions as a result of the event, and has stated Iran would be held accountable for this attempted terrorist attack.  The U.S. has several options through the use of executive and federative power as a response goes.  How the public perceives the response in terms of promoting the common good and self-preservation will be a key factor in the decision-making process to determine what action should be taken.  One possible response, extreme though it is, would be to retaliate with a full scale nuclear strike, forever eliminating Iran as a threat to the commonwealth.  Another possible response would be for the commonwealth to issue a verbal rebuke and censure the Iranian government for its actions, which could easily be seen as the opposite extreme.       
While some may see an inherent tension between the exercise of executive and federative power and the principles of democracy, a thorough understanding of Locke’s foundation should remove that concern.  Democracy is defined as “Government by the people; that form of government in which the sovereign power resides in the people as a whole, and is exercised either directly by them (as in the small republics of antiquity) or by officers elected by them.”17   It has already been shown that, according to Locke, sovereign power is a natural right of each individual, and though some of that power and authority (the right to act) have been ceded through the social contract and granted, for a time and for a specific end, to an external authority, those rights may be revoked by the individuals, and in effect by the community at large when it is determined the sovereign is in violation of his obligations under the agreement.  This is the core of democracy.  The majority may choose to support or oppose anything done by the sovereign in the name of the people by way of exercising the natural rights inherent in the individuals that make up the commonwealth, and if the majority opposes the sovereign then the majority may replace him.  Unfortunately, this interpretation is one of ideals and not one of practicality.  It is entirely possible, through technology and positive law, that a sovereign acquire so much power that a mere majority cannot practically bring enough counter force to bear in order to remove a sovereign.  Reason would seem to imply that a sovereign with such an overabundance of power that could be directed against the people, but does not, would still have the majority of support from the people.  In those cases where the people perceive that a sovereign has abused the use of his acquired power, and it is impractical, or even impossible, due to the power imbalance between the sovereign and the people, for the people to take back their power and give it to a different sovereign, then democracy has failed.
On November 30th, 2011, the United States, through the use of executive/federative powers, exercised its prerogative power by killing, without due process, an American citizen who had chosen, as evidenced by his own actions, to enter into a state of war against America as a whole: Anwar al-Awlaki18.  This action has resulted in an ideological dispute between those who support the actions of the sovereign, who they believe acted for the common good even though it was opposed to standing law requiring the sovereign to refrain from killing one of its own citizens without due process of law, and those who believe the killing was not conducive to the common good because it was in violation of a firm, Constitutional, restriction the people had placed on the sovereign, symbolizing a disrespect for the people who make up the commonwealth and a willingness to violate the agreement for self-serving political gains, or perhaps other reasons unknown to this writer.
On prerogative power:  Prerogative power is nothing more than the power of a sovereign to execute power through an act deemed to be in the best interests of the commonwealth regardless of law19.  This power is designed to eliminate the legislative requirement to foresee every possible eventuality or circumstance, and the best way to deal with those specific circumstances, and enact positive law for the direction of executive power when and if it finds itself in those situations, and because of the understanding that it is impossible to predict all possible future events, the power may be exercised to such a degree that it can violate standing law, as it is argued by some, was the case when the U.S. killed al-Awlaki20.  The same argument might be used if the U.S. were to, in retaliation against Iran, initiate a full scale nuclear strike against the country.  Public perception within a commonwealth is the key to whether or not an executive or federative action is seen as one that promotes the common good or as one that is in opposition to it. 
At this point a question must be asked, based on everything that has come before.  When is the right time for a person or commonwealth to exercise force against the sovereign, to replace him with one more to their liking and who they believe will serve their common interests?  Locke’s response would be that force may only be used against another unlawful and unjust force, and to apply force for any other reason would be unjust and warrant condemnation and retaliation from all within the commonwealth21.  This is not to say that in each instance where the sovereign acts in a manner seen as being unlawfully or unjustly against the preservation of the interests of the commonwealth that the people of the commonwealth will, or should, rise up and replace the sovereign, perhaps through a bloody and long lasting revolution.  Human nature, being what it is, will allow the people to put up with errors and even a few instances of blatant injustice, and will only act with revolutionary force after having been forced over a long period of time to endure suffering and consistent abuses by the sovereign, and after the people have determined there exists the evil intent of the sovereign to actively abuse and make them subject to his arbitrary use of power22.  In short, regarding revolution and civil war, a dispute between the sovereign and a segment of the commonwealth that is of great importance, and where the law is ineffectual, or nonexistent, the only proper judge is the body of the society, and if the sovereign refuses to abide by a judgment against him, he and the commonwealth then enter into a state of war against each other23.
As has been shown, there is a particular circumstance that can cause the failure of democracy as a result of the tensions between the commonwealth and the sovereign.  The circumstance, as has already been stated, is one in which a sizeable majority of force available is controlled and directed by the sovereign against the people, leaving the people practically helpless against the sovereign.  The only way this can be avoided is by the vast majority of the populace having the sovereign under constant and close scrutiny, with remedies under law that allow the people to act quickly and decisively to remove a sovereign seen as unjust, whether in the form of the legislators, the executive, or both.  Also, from the beginning, there must be a system in place, and maintained, that keeps the sovereign from amassing force assets to a degree that the people are at risk of being under the arbitrary rule of a sovereign without having the practical ability to level an equal force in return.  Only then will a sovereign rightly question himself as to whether or not he wishes to enter into a state of war against the people.  The problem is entirely one of “balance of power” between the sovereign and the people.  By dividing the rights, responsibilities and obligations of a selected sovereign; by dividing the legislative powers, the executive powers, the judicial powers, and perhaps other powers amongst various individuals whose primary charge is the self-preservation of the commonwealth, even if action for that end is opposed to their own self-preservation, a commonwealth has a system in place well suited for its purpose.  Unfortunately, the system described is not enough by itself.  Unless the people are also vigilant and aware of the acts of the sovereign, and it is possible that this may not happen as a result of apathy or ignorance, the sovereign may be able to acquire enough tools of force that by the time the people realize they are powerless to stop an unjust sovereign, it will be too late.

1.      Second Treatise. Chapter 2. Section 4. P. 3.
2.      Second Treatise. Chapter 2. Section 6. P. 4.
3.      Second Treatise. Chapter 2. Section 6. P. 4-5.
4.      Second Treatise. Chapter 2. Section 7. P. 5.
5.      Second Treatise. Chapter 2. Section 8. P. 5.
6.      Second Treatise. Chapter 2. Section 13. P. 8.
7.      Second Treatise. Chapter 2. Section 13. P. 9.
8.      Second Treatise. Chapter 2. Section 15. P. 9-10.
9.      Second Treatise. Chapter 4. Section 22. P. 15.
10.    Second Treatise. Chapter 11. Section 135. P. 82-83.
11.    Second Treatise. Chapter 13. Section 149. P. 92.
12.    Second Treatise. Chapter 12. Section 144. P. 89.
13.    Second Treatise. Chapter 12. Section 143. P. 89.
14.    Second Treatise. Chapter 12. Section 145. P. 90.
15.    Second Treatise. Chapter 12. Section 146. P. 90.
16.   Wall Street Journal. Wednesday, October 12, 2011. P. 1. Print.
17.    Oxford English Dictionary.  Oxford University Press.  Second edition.  1989.  Online version September 2011.  Web.  10 Oct 2011.
18.   Wall Street Journal. Saturday/Sunday, October 1-2, 2011. P. 1. Print.
19.   Second Treatise. Chapter 13. Section 158. P. 98.
20.   Second Treatise. Chapter 14. Section 159. P. 99.
21.   Second Treatise. Chapter 23. Section 201. P. 126.
22.   Second Treatise. Chapter 29. Section 225. P. 138.
23.   Second Treatise. Chapter 29. Section 242. P.148.