John Locke (1632- 1704)

Biography
Locke was born August 29, 1632, the oldest child of a respectable Somersetshire family of Puritan sympathies. His father was a lawyer, small landowner, and captain of a volunteer regiment in the parliamentary army. Locke's early education was carefully tended by his father at their rural home at Beluton, near Bristol; and it was probably through the influence of the elder Locke's parliamentary patrons that he obtained a place at Westminster School, where he remained from his fourteenth to his twentieth year. In 1652 he won a scholarship to Christ Church College, Oxford. At the time Locke entered Oxford, Cromwell was chancellor, and the Puritans were in control. The curriculum, however, was still the traditional one of grammar, rhetoric, logic, geometry, and moral philosophy. Locke later declared that he "had lost a great deal of time at the commencement of his studies, because the only philosophy then known at Oxford was the Peripatetic," and his friend, Lady Masham, reported that he often told her that "he had so small satisfaction there from his studies ... that this discouragement kept him from being any very hard student." Nevertheless, after taking his bachelor's degree in 1656, he remained at Oxford to obtain his master's degree and then became successively lecturer in Greek, reader in rhetoric, and finally in 1664 censor of moral philosophy. But such activity did not fully occupy his attention. The reading of Descartes, which gave him "a relish of philosophical things," and the founding at Oxford of the Royal Society led him to begin experimenting in chemistry and meteorology. Soon afterwards he began the study of medicine and by 1666 he was engaged in occasional practice, although he never took a doctor's degree. The common-place books kept between his twenty-eighth and thirtyfourth year show that it was also at Oxford that Locke became interested in political questions. His citations are concerned with such topics as the constitution of society, the relation of church and state, and the importance of religious toleration. In 1665 he interrupted his medical studies to serve on a diplomatic mission to Brandenburg. On his return he considered going to Spain as secretary of the embassy, although he eventually declined the offer. In 1667 he abandoned the academic life for the political world of London and "the

society of great wits and ambitious politicians." This action came about largely as a result of an accidental meeting and ensuing friendship with Lord Ashley, Chancellor of the Exchequer, who persuaded Locke to enter his household as personal physician, general adviser, and confidant. For the next sixteen years Locke served his patron in various capacities. He saved Ashley's life by operating on an "imposthume in the breast," prescribed for the servants, helped to arrange the marriage of the eldest son, and drew up the "Fundamental Constitutions for the Government of Carolina," a colony of which Ashley was a "lord protector." When Ashley was made first Earl of Shaftesbury and Lord Chancellor in 1672, Locke became "secretary of presentations" and secretary of the council of trade. Locke's many practical duties in London did not prevent him from pursuing his scientific and philosophical interests. His medical studies provided the basis for a close friendship with Sydenham, and Locke sometimes accompanied him on his professional calls. He kept up his early interest in chemistry with his friend, Robert Boyle, and upon the latter's death, edited his General History of the Air. He frequently held informal gatherings for the discussion of questions in science and theology. On one such occasion, when meeting with "five or six friends," a question arose concerning the "limits of human understanding." Locke undertook to provide an answer, and what was thus "begun by chance, was continued by entreaty, written by incoherent parcels, after long intervals of neglect resumed again as humour and occasions permitted," and published after almost twenty years as An Essay Concerning Human Understanding. Locke's fortunes were closely linked with those of Shaftesbury, and when the Earl fell from power in 1675, Locke withdrew from public life. He went to France, where he remained four years, during which he sought to restore his health, which had never been good, and to work upon his Essay. At Montpellier he was the neighbor of the Earl of Pembroke, later also the patron of Berkeley, to whom he dedicated his work. When Shaftesbury again arose to power in 16 79, Locke returned to England and resumed his former activities. Although he seems to have played little part in Shaftesbury's plotting with Monmouth against the King which led to the Earl's exile and death, he fell under royal suspicion, and in 1683 he found it safer to seek refuge in Holland. Fearing arrest at the insistence of the English Government, he lived at first in Amsterdam under the assumed name of Dr. Van der Linden. He rapidly formed

congenial associations, especially among the Remonstrants, with whom Spinoza had also lived, and settled down to complete the Essay. In 1687 he made his first appearance as an author by publishing an abstract of it in the Bibliothque Universelle of his friend, Le Clerc. It seems likely that he was involved to some extent in planning the Revolution of 1688. He had friends among the English refugees, he was known to William of Orange, and he returned to England in 1689 in the same ship which carried William's wife, Princess Mary. Although Locke was offered several responsible positions in the new regime, he preferred to devote himself to his writings and accepted only the comparatively light task of commissioner of appeals. Within four years he completed his most important works. The Letter Concerning Toleration, which had been written and published in Latin in Holland, appeared in English the year of his return. In 1690 the Two Treatises on Civil Government and theEssay appeared, and three years later the Thoughts on Education. Prompted by ill-health and dissatisfaction with the course of public affairs, Locke retired in 1691 to Oates Manor in Essex, the home of Lady Masham, daughter of Ralph Cudworth, the Cambridge Platonist. He continued to work at the Essay and in 1694 published a second edition; a third and fourth edition were also brought out during his life time. The Essay and Letter Concerning Toleration involved him in a long series of controversies regarding the religious implications of his teaching. The Second and Third Letter Concerning Toleration, the pamphlets interchanged with Bishop Stillingfleet of Worcester, and theReasonableness of Christianity belong to these years, as does the series of letters to Isaac Newton. He continued to be occupied with political problems and expressed his views on currency reform in his Observations on Silver Money and Further Considerations on Raising the Value of Money. Upon the establishment of a commission on trade and plantations, Locke reluctantly accepted a post as one of the commissioners. This office absorbed all the time his health permitted him to spend in London from 1696 to 1700, when constant illness compelled his resignation. Locke's last years were spent quietly in retirement at Oates. He occupied himself with biblical studies and wrote a commentary on St. Paul's Epistles. He was in the midst of writing a Fourth Letter on Toleration when he died on October 28, 1704. He was buried near Oates by the parish church of High Laver.

Political Thoughts
The Law of Nature Perhaps the most central concept in Locke's political philosophy is his theory of natural law and natural rights. The natural law concept existed long before Locke as a way of expressing the idea that there were certain moral truths that applied to all people, regardless of the particular place where they lived or the agreements they had made. The most important early contrast was between laws that were by nature, and thus generally applicable, and those that were conventional and operated only in those places where the particular convention had been established. This distinction is sometimes formulated as the difference between natural law and positive law. Natural law is also distinct from divine law in that the latter, in the Christian tradition, normally referred to those laws that God had directly revealed through prophets and other inspired writers. Natural law can be discovered by reason alone and applies to all people, while divine law can be discovered only through God's special revelation and applies only to those to whom it is revealed and who God specifically indicates are to be bound. Thus some seventeenth-century commentators, Locke included, held that not all of the 10 commandments, much less the rest of the Old Testament law, were binding on all people. The 10 commandments begin Hear O Israel and thus are only binding on the people to whom they were addressed (Works 6:37). As we will see below, even though Locke thought natural law could be known apart from special revelation, he saw no contradiction in God playing a part in the argument, so long as the relevant aspects of God's character could be discovered by reason alone. In Locke's theory, divine law and natural law are consistent and can overlap in content, but they are not coextensive. Thus there is no problem for Locke if the Bible commands a moral code that is stricter than the one that can be derived from natural law, but there is a real problem if the Bible teaches what is contrary to natural law. In practice, Locke avoided this problem because consistency with natural law was one of the criteria he used when deciding the proper interpretation of Biblical passages. In the century before Locke, the language of natural rights also gained prominence through the writings of such thinkers as Grotius, Hobbes, and Pufendorf. Whereas natural law emphasized duties, natural rights normally

emphasized privileges or claims to which an individual was entitled. There is considerable disagreement as to how these factors are to be understood in relation to each other in Locke's theory. Leo Strauss, and many of his followers, takes rights to be paramount, going so far as to portray Locke's position as essentially similar to that of Hobbes. They point out that Locke defended a hedonist theory of human motivation (Essay 2.20) and claim that he must agree with Hobbes about the essentially self-interested nature of human beings. Locke, they claim, only recognizes natural law obligations in those situations where our own preservation is not in conflict, further emphasizing that our right to preserve ourselves trumps any duties we may have. On the other end of the spectrum, more scholars have adopted the view of Dunn, Tully, and Ashcraft that it is natural law, not natural rights, that are primary. They hold that when Locke emphasized the right to life, liberty, and property he was primarily making a point about the duties we have toward other people: duties not to kill, enslave, or steal. Most scholars also argue that Locke recognized a general duty to assist with the preservation of mankind, including a duty of charity to those who have no other way to procure their subsistence (Two Treatises 1.42). These scholars regard duties as primary in Locke because rights exist to ensure that we are able to fulfill our duties. Simmons takes a position similar to the latter group, but claims that rights are not just the flip side of duties in Locke, nor merely a means to performing our duties. Instead, rights and duties are equally fundamental because Locke believes in a robust zone of indifference in which rights protect our ability to make choices. While these choices cannot violate natural law, they are not a mere means to fulfilling natural law either. Another point of contestation has to do with the extent to which Locke thought natural law could, in fact, be known by reason. Both Strauss and Peter Laslett, though very different in their interpretations of Locke generally, see Locke's theory of natural law as filled with contradictions. In the Essay Concerning Human Understanding, Locke defends a theory of moral knowledge that negates the possibility of innate ideas (Essay Book 1) and claims that morality is capable of demonstration in the same way that Mathematics is (Essay 3.11.16, 4.3.1820). Yet nowhere in any of his works does Locke make a full deduction of natural law from first premises. More than that, Locke at times seems to appeal to innate ideas in the Second Treatise (2.11), and in The Reasonableness of Christianity (Works 7:139) he admits that no one has ever worked out all of natural law from reason alone. Strauss infers from this that the contradictions

exist to show the attentive reader that Locke does not really believe in natural law at all. Laslett, more conservatively, simply says that Locke the philosopher and Locke the political writer should be kept very separate. More recent scholarship has tended to reject this position. Yolton, Colman, Ashcraft, Grant, Simmons, Tuckness and others all argue that there is nothing strictly inconsistent in Locke's admission in The Reasonableness of Christianity. That no one has deduced all of natural law from first principles does not mean that none of it has been deduced. The supposedly contradictory passages in the Two Treatises are far from decisive. While it is true that Locke does not provide a deduction in the Essay, it is not clear that he was trying to. Section 4.10.119 of that work seems more concerned to show how reasoning with moral terms is possible, not to actually provide a full account of natural law. Nonetheless, it must be admitted that Locke did not treat the topic of natural law as systematically as one might like. Attempts to work out his theory in more detail with respect to its ground and its content must try to reconstruct it from scattered passages in many different texts. To understand Locke's position on the ground of natural law it must be situated within a larger debate in natural law theory that predates Locke, the socalled voluntarism-intellectualism, or voluntarist-rationalist debate. At its simplest, the voluntarist declares that right and wrong are determined by God's will and that we are obliged to obey the will of God simply because it is the will of God. Unless these positions are maintained, the voluntarist argues, God becomes superfluous to morality since both the content and the binding force of morality can be explained without reference to God. The intellectualist replies that this understanding makes morality arbitrary and fails to explain why we have an obligation to obey God. With respect to the grounds and content of natural law, Locke is not completely clear. On the one hand, there are many instances where he makes statements that sound voluntarist to the effect that law requires a law giver with authority (Essay1.3.6, 4.10.7). Locke also repeatedly insists in the Essays on the Law of Nature that created beings have an obligation to obey their creator (ELN 6). On the other hand there are statements that seem to imply an external moral standard to which God must conform (Two Treatises 2.195; Works 7:6). Locke clearly wants to avoid the implication that the content of natural law is arbitrary. Several solutions have been proposed. One solution suggested by

Herzog makes Locke an intellectualist by grounding our obligation to obey God on a prior duty of gratitude that exists independent of God. A second option, suggested by Simmons, is simply to take Locke as a voluntarist since that is where the preponderance of his statements point. A third option, suggested by Tuckness (and implied by Grant), is to treat the question of voluntarism as having two different parts, grounds and content. On this view, Locke was indeed a voluntarist with respect to the question why should we obey the law of nature? Locke thought that reason, apart from the will of a superior, could only be advisory. With respect to content, divine reason and human reason must be sufficiently analogous that human beings can reason about what God likely wills. Locke takes it for granted that since God created us with reason in order to follow God's will, human reason and divine reason are sufficiently similar that natural law will not seem arbitrary to us. Those interested in the contemporary relevance of Locke's political theory must confront its theological aspects. Straussians make Locke's theory relevant by claiming that the theological dimensions of his thought are primarily rhetorical; they are cover to keep him from being persecuted by the religious authorities of his day. Others, such as Dunn, take Locke to be of only limited relevance to contemporary politics precisely because so many of his arguments depend on religious assumptions that are no longer widely shared. More recently a number of authors, such as Simmons and Vernon, have tried to separate the foundations of Locke's argument from other aspects of it. Simmons, for example, argues that Locke's thought is over-determined, containing both religious and secular arguments. He claims that for Locke the fundamental law of nature is that as much as possible mankind is to be preserved (Two Treatises 135). At times, he claims, Locke presents this principle in rule-consequentialist terms: it is the principle we use to determine the more specific rights and duties that all have. At other times, Locke hints at a more Kantian justification that emphasizes the impropriety of treating our equals as if they were mere means to our ends. Waldron, in his most recent work on Locke, explores the opposite claim: that Locke's theology actually provides a more solid basis for his premise of political equality than do contemporary secular approaches that tend to simply assert equality. With respect to the specific content of natural law, Locke never provides a comprehensive statement of what it requires. In theTwo Treatises, Locke frequently states that the fundamental law of nature is that as much as possible

mankind is to be preserved. Simmons argues that in Two Treatises 2.6 Locke presents 1) a duty to preserve one's self, 2) a duty to preserve others when selfpreservation does not conflict, 3) a duty not to take away the life of another, and 4) a duty not to act in a way that tends to destroy others. Libertarian interpreters of Locke tend to downplay duties of type 1 and 2. Locke presents a more extensive list in his earlier, and unpublished in his lifetime, Essays on the Law of Nature. Interestingly, Locke here includes praise and honor of the deity as required by natural law as well as what we may call good character qualities. State of Nature Locke's concept of the state of nature has been interpreted by commentators in a variety of ways. At first glance it seems quite simple. Locke writes want [lack] of a common judge, with authority, puts all persons in a state of nature and again, Men living according to reason, without a common superior on earth, to judge between them, is properly the state of nature. (Two Treatises 2.19) Many commentators have taken this as Locke's definition, concluding that the state of nature exists wherever there is no legitimate political authority able to judge disputes and where people live according to the law of reason. On this account the state of nature is distinct from political society, where a legitimate government exists, and from a state of war where men fail to abide by the law of reason. Simmons presents an important challenge to this view. Simmons points out that the above statement is worded as a sufficient rather than necessary condition. Two individuals might be able, in the state of nature, to authorize a third to settle disputes between them without leaving the state of nature, since the third party would not have, for example, the power to legislate for the public good. Simmons also claims that other interpretations often fail to account for the fact that there are some people who live in states with legitimate governments who are nonetheless in the state of nature: visiting aliens (2.9), children below the age of majority (2.15, 118), and those with a defect of reason (2.60). He claims that the state of nature is a relational concept describing a particular set of moral relations that exist between particular people, rather than a description of a particular geographical territory. The state of nature is just the way of describing the moral rights and responsibilities that exist between people who have not consented to the adjudication of their disputes by the same legitimate government. The groups just mentioned either have not or cannot give consent,

so they remain in the state of nature. Thus A may be in the state of nature with respect to B, but not with C. Simmons' account stands in sharp contrast to that of Strauss. According to Strauss, Locke presents the state of nature as a factual description of what the earliest society is like, an account that when read closely reveals Locke's departure from Christian teachings. State of nature theories, he and his followers argue, are contrary to the Biblical account in Genesis and evidence that Locke's teaching is similar to that of Hobbes. As noted above, on the Straussian account Locke's apparently Christian statements are only a faade designed to conceal his essentially anti-Christian views. According to Simmons, since the state of nature is a moral account, it is compatible with a wide variety of social accounts without contradiction. If we know only that a group of people are in a state of nature, we know only the rights and responsibilities they have toward one another; we know nothing about whether they are rich or poor, peaceful or warlike. A complementary interpretation is made by John Dunn with respect to the relationship between Locke's state of nature and his Christian beliefs. Dunn claimed that Locke's state of nature is less an exercise in historical anthropology than a theological reflection on the condition of man. On Dunn's interpretation, Locke's state of nature thinking is an expression of his theological position, that man exists in a world created by God for God's purposes but that governments are created by men in order to further those purposes. Locke's theory of the state of nature will thus be tied closely to his theory of natural law, since the latter defines the rights of persons and their status as free and equal persons. The stronger the grounds for accepting Locke's characterization of people as free, equal, and independent, the more helpful the state of nature becomes as a device for representing people. Still, it is important to remember that none of these interpretations claims that Locke's state of nature is only a thought experiment, in the way Kant and Rawls are normally thought to use the concept. Locke did not respond to the argument where have there ever been people in such a state by saying it did not matter since it was only a thought experiment. Instead, he argued that there are and have been people in the state of nature. (Two Treatises 2.14) It seems important to him that at least some governments have actually been formed in the way he suggests. How much it matters whether they have been or not will be discussed below under the topic of consent, since the central question is whether a good

government can be legitimate even if it does not have the actual consent of the people who live under it; hypothetical contract and actual contract theories will tend to answer this question differently. Consent, Political Obligation, and the Ends of Government The most direct reading of Locke's political philosophy finds the concept of consent playing a central role. His analysis begins with individuals in a state of nature where they are not subject to a common legitimate authority with the power to legislate or adjudicate disputes. From this natural state of freedom and independence, Locke stresses individual consent as the mechanism by which political societies are created and individuals join those societies. While there are of course some general obligations and rights that all people have from the law of nature, special obligations come about only when we voluntarily undertake them. Locke clearly states that one can only become a full member of society by an act of express consent (Two Treatises 2.122). The literature on Locke's theory of consent tends to focus on how Locke does or does not successfully answer the following objection: few people have actually consented to their governments so no, or almost no, governments are actually legitimate. This conclusion is problematic since it is clearly contrary to Locke's intention. Locke's most obvious solution to this problem is his doctrine of tacit consent. Simply by walking along the highways of a country a person gives tacit consent to the government and agrees to obey it while living in its territory. This, Locke thinks, explains why resident aliens have an obligation to obey the laws of the state where they reside, though only while they live there. Inheriting property creates an even stronger bond, since the original owner of the property permanently put the property under the jurisdiction of the commonwealth. Children, when they accept the property of their parents, consent to the jurisdiction of the commonwealth over that property (Two Treatises 2.120). There is debate over whether the inheritance of property should be regarded as tacit or express consent. On one interpretation, by accepting the property, Locke thinks a person becomes a full member of society, which implies that he must regard this as an act of express consent. Grant suggests that Locke's ideal would have been an explicit mechanism of society whereupon adults would give express consent and this would be a precondition of inheriting property. On the other interpretation, Locke recognized that people inheriting property did not in the process of doing so make any explicit declaration about their political obligation.

However this debate is resolved, there will be in any current or previously existing society many people who have never given express consent, and thus some version of tacit consent seems needed to explain how governments could still be legitimate. Simmons finds it difficult to see how merely walking on a street or inheriting land can be thought of as an example of a deliberate, voluntary alienating of rights (69). It is one thing, he argues, for a person to consent by actions rather than words; it is quite another to claim a person has consented without being aware that they have done so. To require a person to leave behind all of their property and emigrate in order to avoid giving tacit consent is to create a situation where continued residence is not a free and voluntary choice. Simmons' approach is to agree with Locke that real consent is necessary for political obligation but disagree about whether most people in fact have given that kind of consent. Simmons claims that Locke's arguments push toward philosophical anarchism, the position that most people do not have a moral obligation to obey the government, even though Locke himself would not have made this claim. Hannah Pitkin takes a very different approach. She claims that the logic of Locke's argument makes consent far less important in practice than it might appear. Tacit consent is indeed a watering down of the concept of consent, but Locke can do this because the basic content of what governments are to be like is set by natural law and not by consent. If consent were truly foundational in Locke's scheme, we would discover the legitimate powers of any given government by finding out what contract the original founders signed. Pitkin, however, thinks that for Locke the form and powers of government are determined by natural law. What really matters, therefore, is not previous acts of consent but the quality of the present government, whether it corresponds to what natural law requires. Locke does not think, for example, that walking the streets or inheriting property in a tyrannical regime means we have consented to that regime. It is thus the quality of the government, not acts of actual consent, that determine whether a government is legitimate. Simmons objects to this interpretation, saying that it fails to account for the many places where Locke does indeed say a person acquires political obligations only by his own consent. John Dunn takes a still different approach. He claims that it is anachronistic to read into Locke a modern conception of what counts as consent. While modern theories do insist that consent is truly consent only if it is deliberate and voluntary, Locke's concept of consent was far more broad. For Locke, it was

enough that people be not unwilling. Voluntary acquiescence, on Dunn's interpretation, is all that is needed. As evidence Dunn can point to the fact that many of the instances of consent Locke uses, such as consenting to the use of money, make more sense on this broad interpretation. Simmons objects that this ignores the instances where Locke does talk about consent as a deliberate choice and that, in any case, it would only make Locke consistent at the price of making him unconvincing. A related question has to do with the extent of our obligation once consent has been given. The interpretive school influenced by Strauss emphasizes the primacy of preservation. Since the duties of natural law apply only when our preservation is not threatened (2.6), then our obligations cease in cases where our preservation is directly threatened. This has important implications if we consider a soldier who is being sent on a mission where death is extremely likely. Grant points out that Locke believes a soldier who deserts from such a mission (Two Treatises 2.139) is justly sentenced to death. Grant takes Locke to be claiming not only that desertion laws are legitimate in the sense that they can be blamelessly enforced (something Hobbes would grant) but that they also imply a moral obligation on the part of the soldier to give up his life for the common good (something Hobbes would deny). According to Grant, Locke thinks that our acts of consent can in fact extend to cases where living up to our commitments will risk our lives. The decision to enter political society is a permanent one for precisely this reason: the society will have to be defended and if people can revoke their consent to help protect it when attacked, the act of consent made when entering political society would be pointless since the political community would fail at the very point where it is most needed. People make a calculated decision when they enter society, and the risk of dying in combat is part of that calculation. Grant also thinks Locke recognizes a duty based on reciprocity since others risk their lives as well. Most of these approaches focus on Locke's doctrine of consent as a solution to the problem of political obligation. A different approach asks what role consent plays in determining, here and now, the legitimate ends that governments can pursue. One part of this debate is captured by the debate between Seliger and Kendall, the former viewing Locke as a constitutionalist and the latter viewing him as giving almost untrammeled power to majorities. On the former interpretation, a constitution is created by the consent of the people as part of the creation of the commonwealth. On the latter interpretation, the

people create a legislature which rules by majority vote. A third view, advanced by Tuckness, holds that Locke was flexible at this point and gave people considerable flexibility in constitutional drafting. A second part of the debate focuses on ends rather than institutions. Locke states in the Two Treatises that the power of the Government is limited to the public good. It is a power that hath no other end but preservation and therefore cannot justify killing, enslaving, or plundering the citizens. (2.135). Libertarians like Nozick read this as stating that governments exist only to protect people from infringements on their rights. An alternate interpretation, advanced in different ways by Tuckness, draws attention to the fact that in the following sentences the formulation of natural law that Locke focuses on is a positive one, that as much as possible mankind is to be preserved. On this second reading, government is limited to fulfilling the purposes of natural law, but these include positive goals as well as negative rights. On this view, the power to promote the common good extends to actions designed to increase population, improve the military, strengthen the economy and infrastructure, and so on, provided these steps are indirectly useful to the goal of preserving the society. This would explain why Locke, in the Letter, describes government promotion of arms, riches, and multitude of citizens as the proper remedy for the danger of foreign attack (Works6: 42) 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, Lockes 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 (Tuckness 2002a). 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 2.8889). 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 Lockes 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 (Lockes federative power) and the judicial power as concerned with the domestic execution of the laws (Lockes 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, Lockes 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 (2.21217). 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 (2.2246). 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. Lockes 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 Lockes 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 executives 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 Lockes 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.