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Rebecca SE Tan
Originally written on 7 October 2020
Posted on 7 December 2022
Reposting yet another essay from two years ago!!
In this essay, the book “Second Treatise of Government”, written by John Locke, will be used to explain Locke’s account for the separation of powers and how it potentially prevents political absolutism.
Reason for State
In order to understand why Locke does not believe in an absolute monarchy, it is first important to understand what he believes to be the role of the government and the reason for governance - to institute a common judge to have a body to appeal to. In general, Locke does not have a very pessimistic view on the State of Nature (where there is no common authority/ civil government), and argues that the State of Nature does not equal the State of War (Chapter II Section 4, 6-7; Chapter III Section 16). However, Locke does concede that granting all people the right to punish others might lead to the inconveniences of judging their friends too lightly and punishing others too harshly (Chapter IX, Section 125). Locke writes, “God hath certainly appointed government to restrain the partiality and violence of men.” (Chapter II Section 13). With this in mind, there is no appeal to absolute monarchy since people will still be void of an impartial and just judge that is able to settle disputes between people with a sense of proportionality for punishment and crime. Having an absolute monarchy thus does not solve the earlier mentioned inconvenience. Locke writes, “For he being supposed to have all, both legislative and executive power in himself alone, there is no judge to be found, no appeal lies open to any one.” (Chapter VII section 91). In fact, absolute monarchies where power is very concentrated may even be worse than the state of nature as it not only does not address the inconveniences of the State of Nature, it also has an added disadvantage to being a “slave of an absolute prince” (Chapter VII section 91) who has “separate interest from the people” (Chapter VIII, Section 111). The monarch is in the "unrestrained state of nature, is yet corrupted with flattery, and armed with power” (Chapter VII section 91). Thus, from the perspective of Locke’s reason for government, absolute monarchies are inconsistent with the law of nature (preservation of mankind) and with civil society, where people are essentially exchanging one form of violence and oppression in the state of nature to another form of violence and oppression under absolute monarchy. Locke says, “what security, what fence is there, in such a state, against the violence and oppression of this absolute ruler? the very question can scarce be borne.” (Chapter VII Section 93). Locke even goes on to say that it would be foolish to presume absolute monarchy would be preferred over the State of Nature. He writes, “this is to think, that men are so foolish, that they take care to avoid what mischiefs may be done them by pole-cats, or foxes; but are content, nay, think it safety, to be devoured by lions” (Chapter VII, Section 93). So therefore, for the very reason that men enter society, which is to have “laws made, and rules set… to limit the power, and moderate the dominion, of every part and member of the society” (Chapter XIX Section 222), there is a need for power to be separated (Chapter XII, Section 143), such that having a civil government is better than living in the State of Nature.
Separation of Power
So how does Locke think power should be separated then? Locke essentially splits the power in a state into four - legislative power, executive power, federative power, and the power of the people from which the previous three is derived from. These powers are outlined below.
The first of these powers is the legislative power. Locke highly regards this and says that establishing legislative power is “the first and fundamental positive law of all commonwealths” (Chapter XI, Section 134). (Commonwealth in this case refers to any independent political community.) Locke believes that the legislative power is “bound to dispense justice” (Chapter XI, Section 135) by creating laws and assigning appropriate punishments. Thus, Locke regards legislative power as “supreme authority” (Chapter XI, Section 135) as “what can give laws to another, must needs be superior to him” (Chapter XIII, Section 150). These laws must be based upon the law of nature (Chapter II, Section 12), which is the preservation of mankind and the protection of life, liberty, and property (Chapter II, Section 6). The legislative also guides political bodies in preserving the community (Chapter XII, Section 143), and is “limited to the public good of society” (Chapter XI, Section 135). In this way, the legislative power seeks to preserve the rights of members through public laws that people conform to, disallowing anyone from destroying the life, liberty, and property of others.
The second power is that of the executive power, which is responsible for executing law. Although executive law is predated by legislative law, executive power is necessary to “do many things of choice which the laws do not prescribe” (Chapter XIV, Section 160). For example, executive power is needed to apply the law to scenarios that are “impossible to foresee” or where law-making may be “too numerous” or “too slow” to write laws for very specific incidents (Chapter XIV, Section 160). It is unrealistic for the law to directly relate to every human circumstance and thus the executive power can exercise their own judgement so that the law would not be too inflexible. In fact, the executive power can even act without legislative authorisation (“without the prescription of law”) if executive power were used “according to discretion, for the public good” (Chapter XIV, Section 160). This means that executives have the right to even be contrary to the legislative law if it means serving the purposes of preserving the natural law of the preservation of mankind. For example, executive powers may ask to tear down even an innocent man’s house to stop a fire if it means preventing the further spread of the fire to other houses (Chapter XIV, Section 159). Thus, the executive power can be used independently to benefit the public. Locke summarises executive power as “the power of doing public good without a rule” (Chapter XIV, Section 166).
The third power is that of federative power, which is responsible for international relations. Locke states that this power “contains the power of war and peace, leagues and alliances, and all the transactions, with all persons and communities without the common-wealth” (Chapter XII, Section 146). Federative power is important because other commonwealths are still in the state of nature with respect to one another and thus individual commonwealths must protect the rights of their citizens (Chapter XII, Section 145). Locke sums the federative power as “the management of the security and interest of the public without, with all those that it may receive benefit or damage from” (Chapter XII, Section 147). The federative power is often merged or subsumed under the executive power (Chapter XII, Section 147-148).
The fourth power is that of the power of the people, which is where the above three powers have derived their powers from (Chapter XIII, Section 149, 153). Locke believes that the power of the people is more supreme than the legislative power, as he believes that people can “remove or alter” legislative power as they deem fit (Chapter XIII, Section 149). This can happen when a society is dissolved by a foreign power, of which the government cannot remain after (Chapter XIX, Section 211; Section XIX, Section 217). This can also happen if the legislative “act(s) contrary to the trust reposed in them” (Chapter XIII, Section 149). The people can also take back their power if new laws which “subverts the old, disowns and overturns the power by which they were made” (Chapter XIX, Section 214) are introduced or if a ruler “set(s) up his own arbitrary will as the law of the society” (Chapter XIX, Section 222). Similarly, people can take back their power if the system was no longer free, such as if “the prince hinders the legislative from assembling in its due time, or from acting freely” (Chapter XIX, Section 215), or if the “electors, or ways of election, are altered, without the consent, and contrary to the common interest of the people” (Chapter XIX, Section 216). Thus, Locke believes that people have the right to revolution so that rulers are “liable to be opposed, when they grow exorbitant in the use of their power, and employ it for destruction, and not the preservation of the properties of the people” (Chapter XIX, Section 229). The community are thus “always the supreme power” as they will “always have a right… to rid themselves of those, who invade this fundamental, sacred and unalterable law of self-preservation” (Chapter XIII, Section 149). The power of the people thus lies in their ability to go against rulers if the community deems it necessary.
Prevent Political Absolutism?
So why does Locke believe the separation of power safeguard the people against tyranny and political absolutism?
Firstly, the separation of power allows for the legislative and executive (and federative) powers to have checks and balances. The separation of power prevents the legislative from being exempt from the laws made for public good as it is not they who executes the laws (Chapter XII, Section 143). This prevents tyranny of the legislatives, despite the fact that the executive and federative powers are subordinate to the legislative (Chapter XIII, Section 149). On the other hand, the executive has the prerogative power to make decisions even without legislative authority (Chapter XIV, Section 160). This allows them to exercise an illegitimate amount of power which threatens tyranny (Chapter XVIII, Section 199). In such a case, the legislative power and the people can resist against them (Chapter XIII, Section 155). If there were no means to reconcile conflict resulting from the exercise of executive prerogative and legislative supremacy, or that of the people versus the government, the two can “appeal to heaven” through a civil war and let God judge who is right (Chapter XIV, Section 168).
Secondly, the separation of power means that the people have the right to revolution if the government makes grievous mistakes. For example, people can revolt if people are “generally ill-treated” (Chapter XIX, Section 224), in a “long train of abuses”, are “much worse than the state of nature” (Chapter XIX, Section 225) or are infringed upon their liberties (Chapter XIX, Section 230). Locke further justifies this by saying that the people are not the rebels but rather the state is rebelling as they have acted against natural law and violated the rights of individuals (Chapter XIX, Section 226). The fact that people are thus justified to rebel thus makes tyranny and political absolutism less likely since the government must appeal to the people that they are serving the public good.
Conclusion
John Locke believes that political absolutism negates the reason for state and hence seeks to prevent this. He believes that the power of the legislative, executive (and federative), and the people are all important and impactful, and hence need to be separated to provide checks and balances to ensure that each power is working towards the public good. This prevents political absolutism, where all the power is concentrated in a “Prince”, and the monarch is free to do as he deems fit, regardless of whether it indeed serves the public interest.
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