The Missing Judiciary in Locke’s Separation of Powers
Ross J. Corbett
Brown University
I
Judicial independence is a cornerstone in modern liberal democracies. We
can easily regard it as a sine qua non of constitutional government, or a regime
structured to avoid the oppression of those who do not control the state. The rule of
law seems more than just unlikely, but rather indefinable, without a separate court
system, one that neither makes nor executes the law. We are predictably surprised,
then, to see that John Locke did not treat judging as a separate power in the Two
Treatises of Government. Here, the three different aspects of political power are
instead the legislative, executive, and federative powers (II 143–8).
We can begin to appreciate what is going on by looking to Montesquieu’s
Spirit of the Laws. Montesquieu makes explicit what was only implicit in Locke’s
account: each power differs from the others in its relation to laws of various sorts.
The legislative power is the source of positive law. The executive power employs the
force of the community according to that positive law.
The federative power
addresses those without obligations to positive law, and consequently applies what
Locke calls the law of nature in dealing with them. Montesquieu calls the two nonRoss J. Corbett
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legislative powers the “executive power over the things depending on civil right”
and the “executive power over the things depending on the right of nations,”
respectively.1 While two things are named “executive power,” he is clear that what
is essential is the law according to which they are exercised, more than the fact that
they are applications of force: they are, as he says, different “sorts of power.”2
Montesquieu further distinguishes the executive power regarding civil right
into the punishment of crimes and the judging of disputes between individuals.
This split seems to track the difference between criminal and civil law, with
Montesquieu deciding that the former will be referred to as “simply the executive
power of the state” and the latter “the power of judging.”
Yet his subsequent
discussion reveals that this is instead our familiar distinction between the executive
and judicial powers, regardless of whether the latter are involved in public law or
private.3 This separation is justified because it tends to preserve that “tranquility
of spirit” which is definitive of political liberty. This is to say that Montesquieu,
agreeing with Locke that the executive and judicial powers are essentially the same
in their relation to civil right, says that they must be treated as if distinct for the
sake of political liberty.
This is a long introduction to the idea that Locke’s Second Treatise does not
contain a separate judicial power because it is comprehended within his executive
power. This is accepted as largely unproblematic. Scholars tend to clarify the place
Montesquieu, The Spirit of the Laws, ed. and trans. Anne M. Cohler, Basia C. Miller, & Harold S.
Stone (Cambridge: Cambridge University Press, 1989): Pt. II, Bk. 11, Ch. 6; p. 156.
2 ibid.
3 Montesquieu, 157. Perhaps Montesquieu considers all crimes to be disputes between individuals.
1
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of the judicial power with nothing more than a subordinate clause. Yet they do
clarify it nonetheless. The explanation is simple, but it is still necessary. Which is
to say that, while the resolution to the problem of the missing judiciary seems
obvious after it has been articulated, it was not so obvious that it never presented
itself as a problem in the first place.
I wish to suggest that the placement of the judicial power within Locke’s
executive power should be problematic. We accept it as a resolution to the problem
of the missing judiciary because it comports so harmoniously with so much of our
regime and a generally accepted interpretation of Locke.
I indicate by this,
however, that the subsumption of the judiciary under the rubric of executive power
need not be self-evident. It can be supported from within the civil law tradition,
where legislation is the primary source of law. It can likewise be defended on the
basis of legal positivism. Yet it seems at odds with a jurisprudence of natural law,
to say nothing of a reasonable interpretation of the common law tradition within
which most Anglo-American philosophy of law operates. It is this opposition, I wish
to suggest, that accounts for the fact that this subsumption is not self-evident, for I
will argue that it most certainly does not comport with other essential facets of our
regime.
Why might we contend that the judiciary does not simply exercise executive
power? One possibility is that we have been persuaded by legal realism that judges,
in declaring what the applicable law is, do not so much “discover” what was already
there as “create” new law.
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But we do not even have to go this far.
William
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Blackstone, for example, could deny that the judge alters the substance of the
common law by articulating it more clearly; yet he says also that a major part of
Parliamentary legislation is also merely declarative of “what the common law is and
ever hath been.”4 Again, a major function of the common law judiciary seems akin
to legislation.
Perhaps we must distinguish, therefore, between what Blackstone calls a
declaratory statute and what Locke means by legislation. Perhaps Locke had in
mind more what Blackstone calls remedial statutes, which supply defects or remove
superfluities in the common law “as arise either from the general imperfection of all
human laws, from change of time and circumstances, from the mistakes and
unadvised determinations of unlearned (or even learned) judges, or from any other
cause whatsoever.”5 I shall ignore for the moment that one source of the common
law’s need for amendment is prior judicial action. I mean instead that remedial
statutes are new laws, and need not make a show of conformity to the previous one.
This is legislation if anything is, and is certainly beyond the domain of ordinary
courts of law.
Our previous certainty that the judicial function is subsumed under the
executive power assumed a mechanistic account of jurisprudence: the act of judging
is a moment in the execution of the law which is therefore in principle distinct from
the articulation of that law. Ronald Dworkin has called this the plain-fact view of
4
5
Blackstone, Commentaries on the Laws of England, vol. I, p. 86.
Blackstone, vol. I, p. 86.
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jurisprudence.6 It now appears that the subsumption of the judiciary can be saved,
however, if we are clearer about what Locke means by legislation. If it is a break
with the system of law as it stood prior to the legislative act (i.e., remedial rather
than declarative of the law), then it does appear radically distinct from judging. We
might then debate what it would mean for a judge to declare the law without
making this break. We might ask whether a judge has more leeway in determining
the content of the law than an executive does, or vice versa. Yet the judge and the
executive would be engaged in fundamentally the same task, at least when
compared with that of legislation.
We are not, however, at the end of our uncertainty. The view of legislation I
have just outlined is entirely positivistic. The legislature creates some laws, as it
were, ex nihilo. Yet there are statements in Locke’s Two Treatises which suggest
that this is not the case. One gets the impression that a good part of its duty is to
interpret the law of nature. “The Obligations of the Law of Nature, cease not in
Society, but only in many Cases are drawn closer, and have by Humane Laws
known Penalties annexed to them, to inforce their observation” (II 135). One reason
that the supreme power must govern by laws, not by extemporary decrees, is that
men disagree about the natural law and so need definite articulations of it in the
form of positive laws if they are to live together in peace (II 136).
This in itself is not an obstacle to the continued subsumption of the judicial
power within the executive. We could, after all, say that only the legislative power
6
Dworkin, Law’s Empire (Cambridge: Belknap Press, 1986), 6 ff.
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is to interpret the law of nature. To a jurist, its decrees seem like free acts, wholly
unbound by anything that he would recognize as law. Legislators, however, would
recognize that they simply interpret natural law, just as the jurist in turn interprets
their positive laws. This distinction, however, would be crucial: the fidelity of every
member in society to the social contract would be judged by the support that
positive law gives to their actions, public and private. The same fidelity of the
legislature, on the other hand, would be judged by a law which no human court
could recognize. We can recast the relation among the political powers in terms of
the law of nature. The federative power interprets and executes the law of nature
with regard to persons external to the commonwealth.
The legislative power
interprets it with regard to members. The executive executes the legislative power’s
interpretation with regard to members. Again, the judge possesses executive power.
The problem arises again when we combine this account of legislation with a
natural law account of jurisprudence. By a “natural law account” I mean simply the
sort of naturalism to which Dworkin will admit, viz. “that what the law is depends
in some way on what the law should be.”7 I want to argue that it is just such an
account that William Blackstone offers in his Commentaries on the Laws of
England. And this does present us with a problem, for then Locke’s treatment of
judging would be incompatible with the common law tradition.
To sum up thus far:
the generally accepted view that Locke means the
executive power to comprehend the act of judging attributes to Locke a particular
Ronald Dworkin, “‘Natural’ Law Revisited,” University of Florida Law Review 34.2 (Winter 1982):
165–88, 165.
7
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view of jurisprudence. If we can accept that Blackstone’s account of the law would
have been recognized by jurists in Locke’s day as a description of the common law
as they understood it, then the Lockean view of jurisprudence stands against the
view that prevailed in his day. We might desire greater textual support for this
conclusion. This paper will initially reaffirm the view that Locke includes judging
in execution. Political society could not function as required were this not so. Yet I
will also argue that this cannot simply be the case, pointing us beyond Locke’s focus
on legislative supremacy to his more considered principle of legitimate government.
II
Blackstone’s Commentaries on the Laws of England is not primarily a
theoretical work. He promises to the gentlemen who read it or attend his Oxford
lectures that they will be better able to defend their estates from conniving
inferiors, that they will ensure that their last wills and testaments are respected,
that they will not embarrass themselves when their dignity requires they serve on
juries or as justices of the peace, and that they will be prepared to pursue illustrious
careers as leaders in Parliament.8 The Commentaries is not consequently devoted
to the philosophy of law.
Nor does Blackstone so scandalize convention as to
suggest that it needs unconventional arguments for its justification; his account of
the various kinds of law, of its sources and limitations, of the purpose and
foundations of society, etc. is respectably Whiggish (if not entirely orthodox).
8
Blackstone, vol. I, pp. 6–10.
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Yet Blackstone does object to the legal education provided in his day. The
full practice of law requires a liberal education. The inns of chancery and the inns
of court, on the other hand, both fail to provide one and are of a sort as to drive all
who might possess one away from the study of law.9 He does not, then, provide only
a technical education in the law, and so we cannot treat his more theoretical
statements as having been presented strictly pro forma.
Considering what is
needed at present, however, I think we can safely leave aside most of what
Blackstone says regarding the most general and comprehensive sense of law; the
relation between the law of nature on the one hand and God’s power, wisdom, and
goodness on the other; the nature of freewill which makes the law of nature unlike
the law of animal digestion; etc. Let us instead turn to the genesis and authority of
the common law.
The common law is the municipal law particular to England.
We might
object that this is, properly speaking, only the English common law, but Blackstone
intimates that the common laws of all other peoples have been obliterated by the
introduction of the civil law.10 If by “common law” we mean a method, as legal
sociologists counsel we understand it, then it is a method peculiar to England. This
is because this method of legal practice depends upon the existence of something
which can be called the “common law.” Its maxims “receive their binding power and
the force of laws by long and immemorial usage, and by their universal reception
throughout the kingdom;” it is called the lex non scripta because its “original
9
Blackstone, vol. I, pp. 25–34.
Cf. Blackstone, vol. I, pp 63–7.
10
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institution and authority” are not written down, which is to say that they did have a
(now forgotten) original institution and authority.11
The obliteration of the
“monuments and evidence” of these ancient legal customs in other European lands
prevents appeal to them. The legal customs which constitute the common law, like
the traditional social practices which those customs may or may not express, are
venerable for their antiquity.
This is no mere conservatism on Blackstone’s part, however. There is a sort
of republicanism at work here. We see this in his remarks on how the Romans
deferred to custom.
Roman law valued popular customs very highly during its
liberty, but less so “when the imperial tyranny came to be fully established.” 12
Under the republic, the law followed custom only where the written law had not yet
spoken, but Blackstone assures us that the reason given for this deference will fully
justify the English reliance on precedent whenever the written law has not
explicitly spoken to the contrary. To ensure that this justification is not inaccessible
to the unlearned, Blackstone takes the (for him) unusual step of translating it into
English:
For, since (say Julianus) the written law binds us for no other reason
but because it is approved by the judgment of the people, therefore
those laws which the people have approved without writing ought also
to bind every body. For where is the difference, whether the people
declare their assent to a law by suffrage, or by a uniform course of
acting accordingly?13
Returning to Latin, Blackstone notes that custom is denigrated as a source of law as
Blackstone, vol. I, p. 63; cf. 67.
Blackstone, vol. I, p. 74.
13 Blackstone, vol. I, pp. 73–4; cf. Digests of Justinian 1.3.32.
11
12
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soon as the emperor becomes a legislator and interpreter of the law. “And indeed it
is one of the characteristic marks of English liberty, that our common law depends
upon custom; which carries this internal evidence of freedom along with it, that it
probably was introduced by the voluntary consent of the people.”14
Blackstone, it turns out, is largely unconcerned with the true antiquity of the
common law. He doubts Fortescue’s assertion that its customs are as old as the
ancient Britons; he honors as “likely” the story that the common law was compiled
and regularized by Alfred the Great in the Dome-Book, restored under Edward the
Confessor, and has continued in operation to this very day. The actual historical
legislator of the common law seems irrelevant regarding its authority. All that is
really important is that it is very old:
in our law the goodness of a custom depends upon its having been used
time out of mind; or, in the solemnity of our legal phrase, time whereof
the memory of man runneth not to the contrary. This it is that gives it
its weight and authority: and of this nature are the maxims and
customs which compose the common law, or lex non scripta, of this
kingdom. 15
In a strange twist, we have stronger reason to suspect that a custom has the
consent of the people if we have no evidence of its initiation. This of course is
plausible if one accepts that the people are no longer free to approve or disapprove
what legal customs they will; in that case, innovations would fail to carry the
internal evidence of freedom. We would say this if the people had been conquered.
At this point, we should note that the common law predates the Norman conquest.
14
15
Blackstone, vol. I, p. 74.
Blackstone, vol. I, p. 67.
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We are almost forced to say that it is evidence of the people’s will, and hence
authoritative, because it predates the conquest. The common law is a relic from a
bygone era when laws were made by consent, and so retains whatever authority
consensual arrangements possess in preference to those that have been compelled.
The discovery of this ancient law of freedom requires historical research.
Jurists therefore engage in something like Richard Fallon’s “historical ideal type” of
jurisprudence.16 The best evidence for the law is not, however, statutory. Alfred’s
Dome-Book might have served as a reference should the existence of a custom be in
doubt, but all that remains are the decisions of past jurists.
If they did not
themselves base their decision on Alfred’s laws, then at least they bore witness to
the existence of a custom at their time, and that at their time the custom was
ancient enough to count as custom.
What is interesting is how these precedents are treated. Because they are
not sources of law, but rather only “monuments and evidence” of the law (if the
“principal and most authoritative evidence” of it), 17 they can be discredited in a way
that positive law cannot. Namely, they are set aside if they are “evidently” contrary
to reason or “clearly” contrary to the divine law:
But even in such cases the subsequent judges do not pretend to make a
new law, but to vindicate the old one from misrepresentation. […] And
hence it is that our lawyers are with justice so copious in their
encomiums on the reason of the common law; that they tell us, that the
law is the perfection of reason, that it always intends to conform
Richard H. Fallon, Jr., “‘The Rule of Law’ As a Concept in Constitutional Discourse,” Columbia
Law Review 97.1 (January 1997): 1–56, esp. 11–14.
17 Blackstone, vol. I, pp. 63, 68
16
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thereto, and that what is not reason is not law.18
This is another way of saying that precedents contrary the law of nature are void. 19
This need not be taken as an assertion that an irrational or impious law is no law at
all, as some contemporary natural law advocates are wont to proclaim. It is rather
an extension of the rule that laws not be interpreted as to give them absurd
consequences when this is avoidable.20 And where the text of the statute is itself
absent, or indeed never existed, this is always avoidable. This is substantially less
discretion than Dworkin would authorize, but it still makes the correct answer to
legal questions depend in some cases on the correct answer to moral ones.
This might not address the question of the Lockean judiciary, since here the
court decides in the absence of statutory laws: the only evidence of there ever
having been a legislative decision is that the courts have behaved as though there
were. Yet in the Lockean case, we are given to assume that this evidence will not
(or ought not) be lacking.
There is also less reason to mistrust statutory
innovations in the law when the legislature actually is representative (and
reasonably well-versed in the law as it stands). We can detect an intimation of this
by comparing Blackstone’s willingness to entirely subordinate the common law to
statute during the reign of Queen Victoria21 with Edward Coke’s assertion of
Blackstone, vol. I, p. 70.
The law of nature is such that the individual’s true happiness can be attained only by following it,
and that following it invariably leads to this happiness; it is therefore in principle wholly
discoverable by reason. As the Fall corrupted human reason, however, the law of nature is
supplemented by the divine law, which does nothing more than inform men of the law of nature.
Blackstone, vol. I, pp. 40–43.
20 Blackstone, vol. I, p. 60.
21 “Where the common law and statute differ, the common law gives place to the statute;”
18
19
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something like judicial review under that of James I.22 So we must ask, What of
statutory interpretation?
Blackstone begins his general discussion of interpretation with a bad method;
he ends it with another, but one that evolves from the attempt to avoid the first. 23
The bad method is to refer questions that arise in particular disputes to the
legislature, and is problematic for the same reason that Roman rescripts were
pernicious: they removed every protection provided by the generality of law by
asking the legislator to “clarify” his intention in light of a particular case.
“Contrary to all true forms of reasoning, they argue from particulars to generals.”24
The emperor Macrinus had abolished the authority of rescripts, but it was
restored by Justinian; Blackstone does not give the latter’s reason, but Justinian’s
Institutes tie it to the emperor’s absolute possession of the people’s sovereign
authority.25
That is, recourse to the legislature appears to be a necessary
consequence of respecting its sovereign authority. It goes without saying that the
courts’ refusal to defer to the legislators’ interpretations in particular cases cannot
be founded on a challenge to the sovereign’s sovereignty.
When Edward Coke
informed James I that he was forbidden by law from sitting in judgment, his
reference to Bracton emphasized that to be under the law was not to be under the
Blackstone, vol. I, p. 89.
22 “The Common Law doth controll Acts of Parliament, and sometimes shall adjudge them to be
void;” Dr. Bonham’s Case, 8 Rep. 113b, 118a.
23 Blackstone, vol. I, pp. 58–62. He also discusses rules of interpretation particular to England; cf.,
vol. I, pp. 86–91.
24 Blackstone, vol. I, p. 59.
25 Institutes of Justinian 1, 2, 6.
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authority of any other man.26 Blackstone begins, therefore, to discuss how one can
respect the sovereign will without inviting it to judge individuals according to post
hoc clarifications of its intent.
“The fairest and most rational method to interpret the will of the legislator is
by exploring his intentions at the time when the law was made, by signs the most
natural and probable.”27 Prime among these are the actual words of the statute,
judged by their general and popular use.
But if the meaning of the words is
dubious, Blackstone continues, clarification should be sought by reference to the
preamble; or to other laws made by the same legislator, or that have some affinity
with the subject, or that expressly relate to the same point; or to the subject matter.
The express meaning of the words may be bent, however, if they “bear either none,
or a very absurd signification, if literally understood.” 28 The absurdity comes in
their effect or consequences, e.g., a physician punished for opening a vein in order to
save a life when the law forbids “drawing blood in the streets.”
It is Blackstone’s final means of determining the legislator’s intention that is
of the most interest at present. The reason or the spirit of the law, he says, is “the
most universal and effectual way of discovering the true meaning of a law, when the
words are dubious,” and “when this reason ceases, the law itself ought likewise to
cease with it.”29 Blackstone provides an example. The law might make all who stay
with a ship in a storm owners of it and its lading in preference over those who
Prohibitions del Roy, 12 Rep. 63, 65.
Blackstone, vol. I, p. 59.
28 Blackstone, vol. I, p. 60.
29 Blackstone, vol. I, p. 61.
26
27
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abandon it. Yet, if everyone were to abandon a ship except for one passenger who
was too sick to do so and the ship were somehow saved, this law would not give him
ownership:
it was intended to give encouragement to those who might risk
defending the vessel, and he could not pretend to this merit.
Blackstone’s conclusion in this case is not a matter of equity (let alone Coke’s
judicial nullification). The law is not set aside because its application would be
unreasonable, for there is no need to set it aside here: the law simply does not
grant the survivor ownership, and only an erroneous interpretation might suggest
otherwise.
Rather, equity arises from this method of interpreting the laws
according to their reason or spirit; equity differs from this method.
But how different are they? Recall Blackstone’s earlier criticism of the inns
of chancery and of court. The education they provide, he said, is fit only for those
wishing to become juristic automatons:
the least variation from established precedents will totally distract and
bewilder him: ita lex scripta est is the utmost his knowledge will arrive
at: he must never aspire to form, and seldom expect to comprehend,
any arguments drawn, a priori, from the spirit of the laws and the
natural foundations of justice.30
It is equity that appeals to the natural foundations of justice, while the law is
interpreted according to its spirit. These are made to seem two different things, yet
it is clear that both are the same sort of enterprise. We need only ask how the judge
determines the spirit or reason of the law to see that he is no longer engaging in an
activity entirely distinct from legislation.
30
Blackstone, vol. I, p. 32.
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This is made even clearer by Blackstone’s concluding remarks on equity:
the liberty of considering all cases in an equitable light must not be
indulged too far, lest thereby we destroy all law, and leave the decision
of every question entirely in the breast of the judges. And law, without
equity, thought hard and disagreeable, is much more desirable for the
public good than equity without law; which would make every judge a
legislator, and introduce most infinite confusion; as there would then
be almost as many different rules of action laid down in our courts, as
there are difference of capacity and sentiment in the human mind.31
The problem of equity is similar to the problem of rescripts. In order to avoid the
latter by means of statutory interpretation, one is led directly back to its
inconveniences.
This requires moderation on the part of judges, yet even the
moderate stance makes the content of the law depend occasionally on the judge’s
understanding of what the law should be. The determination of a statute’s reason
or spirit, or of the absurdity of its consequences, is not so easily sundered from the
natural foundations of justice.
III
Legal positivism makes a great deal of the distinction between law and
morality. Intuitively it is quite striking. Every child knows that its not liking the
rules does not mean that those are not the rules, while adults are taught to
appraise laws by their justice. Positivism likewise has a strong political appeal; it is
easier just as a matter of practice to organize opposition to an unjust law than to a
law-like command that nevertheless lacks a necessary condition of lawfulness. And
while the distinction between law and morality does not itself demand a
31
Blackstone, vol. I, p. 62.
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jurisprudence of strict construction or originalism, both Republicans and Democrats
have found it useful to attack rulings they dislike for substituting the judges’
personal opinions of what is right for the law. The appeal of positivistic constraints
on judges makes a positivist philosophy of law quite attractive.
Blackstone does not say that an unjust law is no law at all, but it does turn
out that the common law is never against reason and that Parliament really has to
go out of its way before a court should accept that it intended its statutes to work
harm upon the public. Law may not be by definition rational, but it seems that
English law is. Yet Locke in fact says that men do not resist an unjust political
society:
the Glorious Revolution was all about the people’s resisting the
deprivations of criminals masquerading as the officers of a political society that had
in reality dissolved (cf. II 220, II 226–9, II 231–3, II 240–3).
Legitimacy is
inseparable from the existence of political society. We find out that “Law, in its true
Notion, is not so much the Limitation as the direction of a free and intelligent Agent
to his proper Interest, and prescribes no farther than is for the general Good of
those under that Law” (II 57).
How, then, could a judge in the Lockean
commonwealth not say that an unjust law is no law at all? This would require, in a
strange reversal of Blackstone, that although law may always conform to the law of
nature, the law need not.
Locke justifies political society by recourse to the state of nature.
A
reasonably attentive reading will reveal, however, that his description of that state
has a polemical purpose. The allusions to history and various travel journals quite
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often undermine his account, and it is obvious that his goal in presenting it was not
anthropological science. This is to say that Locke puts into the state of nature what
he wants various readers to take out of it. Whatever else might be said about this,
it is an interpretive boon. It means that ambiguities regarding political society can
be clarified by reference to the inconveniences of the state of nature.
A primary motive for leaving the state of nature is to avoid the state of war
(II 21). Yet the problem is not that the world is simply filled with nasty people, or
that men face prisoners’ dilemmas with lethal stakes whenever a sovereign with the
power to overawe them all is lacking. Rather, it is that every least difference is apt
to end in the state of war when there is no one to authoritatively judge among the
disputants, and that there will invariably be disputes. This is an inconvenience
which even conscientious human beings would feel. It arises from three defects for
which political society must supply the solution.
First, There wants an establish’d, settled, known Law, received and
allowed by common consent to be the Standard of Right and Wrong,
and the common measure to decide all Controversies between them.
(II 124)
Secondly, In the State of Nature there wants a known and indifferent
Judge, with Authority to determine all differences according to the
established Law. (II 125)
Thirdly, In the state of Nature there often wants Power to back and
support the Sentence when right, and to give it due Execution. (II 126)
We might say that what is needed is a legislature, a judiciary, and an executive.
This only intensifies our perplexity as to why these are not the three powers in
Locke’s schema.
I wish to focus on the first defect. Locke suggests that we might think it
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curious that there is a problem at all. After all, isn’t there already a law that is
“plain and intelligible to all rational Creatures,” viz. the law of nature (II 124)?
The State of Nature has a Law of Nature to govern it, which obliges
every one: And Reason, which is that Law, teaches all Mankind, who
will but consult it, that being all equal and independent, no one ought
to harm another in his Life, Health, Liberty, or Possessions. (II 6)
All that should be needed, then, is a judge, a jury, and an executioner, so to speak.
And indeed, the asserted existence of such a law leads to a discussion of why it must
have human enforcement — not clarification (cf. II 7–13).
It is even easier to
understand by the light of reason than are the municipal laws of most countries (II
12). That is, political society should have only two tasks. God himself has already
legislated for us and endowed us with reason enough for his law to have been
sufficiently promulgated.
All that should be needed is a body devoted to the
enforcement of God’s law, i.e., a theocracy. Yet Locke is not a theocrat.
The problem is not that there is no law which could seem to settle disputes
between individuals in a rational manner.
The existence of such a law would
require only that the judgments arrived at by reasoning be articulable in the
imperative with such a mixture of specificity and generality as to give them the
recognizable form of law. The problem is that the authority of this law is denied
when men consider their own particular cases (II 124). Because men deny the
authority of this law, it cannot govern them; absent effectual human enforcement, it
may as well be no law at all (cf. II 7, II 219). Political society must determine the
principles by which cases are to be judged in addition to actually judging them.
Locke enumerates four rules by which the supreme power is to be
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constrained. First, it cannot be a right to act contrary to the public good (II 135).
Second, the supreme power must rule by (positive) law, not by decrees. In arguing
this, Locke again refers to the fact that men do not know the law of nature (II 136).
Whether by interest or by passion, they mis-cite or misapply it in their own cases.
Again, this is not rapaciousness: human beings believe that what they are doing is
just when in fact it is criminal — does not justice reward the just man? In the state
of nature, injustice is equipped with all the arms of righteous indignation. Murders
are thought to be executions, robberies reparations (cf. II 7–13, II 123–7). Out of a
desire to avoid this, each surrenders his right to judge the law of nature for himself,
accepting society’s determinations as his own (II 128–30; cf. II 87–9, II 96–9).
Positive law must teach men what justice is; each individual’s sense of justice will
be conventional, not natural (II 87). The purpose of law is to settle disputes, in
principle before they even arise.
Yet Locke now interrupts his enumeration, in §137, to re-justify the first two
rules; this restatement is important. To understand why, we need only be attentive
to what he has not yet said. Prior to this interruptive recapitulation, there was
nothing to suggest that law serves as a fence around the people’s liberties: the
second rule was independent of the first. Rule by law was not advocated as an
obstacle to the government’s betrayal of the public good. Human beings required
law in order to know how to behave, not because they could not trust their rulers.
Locke repeats that “stated Rules of Right and Property” are needed so that
the people “may know their Duty, and be safe and secure within the limits of the
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Law,” but this is now only one reason. Rulers, too, must “be kept within their due
bounds” (II 137). Locke states with confidence that one
who is exposed to the Arbitrary Power of one Man, who has the
Command of 100000. [is in a much worse condition] than he that is
expos’d to the Arbitrary Power of 100000. single Men: no Body being
secure, that his Will, who has such a Command, is better, than that of
other Men, though his Force be 100000. times stronger.
What this statement turns on is the unknown character of the magistrate. This
now becomes the reason that “whatever Form the Common-wealth is under, the
Ruling Power ought to govern by declared and received Laws, and not by
extemporary Dictates and undetermined Resolutions.” Standing laws do not only
inform the people of their duties: they reveal the quality of their rulers’ wills. The
requirement that there be a government of laws, Locke concludes in this section, is
not merely for the sake of regularity and predictability, but so that the rulers “not
be tempted by the Power they have in their hands, to imploy it to such purposes,
and by such measures, as they would not have known, and own not willingly32” (II
137). Laws prevent deception.
Locke was not so naïve as to seriously think that laws could restrain the
government — or anyone, for that matter. He vividly notes that law is nothing
without enforcement; in every society, there must be someone to act as a “Terror to
Evil Doers, and by that Terror to inforce Men to the positive Laws of the Society” (I
92; cf. II 7, II 219). The laws constituting the legislative power are enforced by the
people, should there be a need for enforcement. Now we have an answer for why we
32
Italics added.
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cannot just allow princes to do as they will for the public good, keeping them honest
through oversight by a spirited and vigilant people (cf. II 105–12, II 162–8). Locke
traces the claim to a right to rule without law to a desire to conceal one’s designs;
law functions to make these manifest. Here, rule by law is preferable to trust in the
prince’s goodness.
In order that the people may know whether they ought to trust their rulers,
these must employ the force of the community placed at their disposal only as the
application of a general rule to particular cases.
They are not to judge the
particular according to its perceived justice, but according to its legality.
This
makes ad hoc justifications of injustice more difficult. Questions of justice are to
arise only in framing the general rule. There must then be two different modes of
judgment, one for legislating, another for executing. The former should be obsessed
with the natural law; the latter, willfully positivistic.
The essence of each is
determined by its relation to positive law. Understanding and acting upon this
distinction is the separation of powers, and for there to be the rule of law in the
Lockean sense there need be only this conceptual separation: it is not essential that
these powers be lodged in institutionally distinct bodies.33
It is unlikely, however that the rule of law will be maintained if one person or
group wields both legislative and executive power: the general rule will be crafted
with a particular case in mind, its crafter secure in the knowledge that he will
That the separation of powers need not entail their distribution among numerous hands is seen
from the federative power, which while distinct from the executive is best held together with it (II
147–8). The chief executive may (cf. II 213) or may not (cf. II 152) possess legislative authority.
33
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himself execute it according to his liking (II 143). At most there would be but the
bare form of the rule of law, without its substance.34 The distribution of these
powers among several persons is not in this view the rule of law, but rather a fence
protecting the rule of law, just as this latter is not so much the public good as its
protector.
This leads to the fourth rule by which the supreme power, now properly a
legislature, is constrained,35 viz. that it cannot delegate legislative power to
another.
It may not break down whatever institutional barriers were erected
between itself and the bearers of executive power, or even grant its discretion to
some other body that wasn’t responsible for the execution of the laws. We might
wonder how much discretion a legislature can grant to an executive agency before it
has delegated legislative authority. It is interesting to consider in this regard what
sorts of actions Locke considered extra-legal in his discussion of prerogative: the
prince’s right to demolish homes, for example, in order to create a firebreak while
the city is aflame stands outside of the law, forcing us to ask whether emergency
powers acts and the like are impermissibly vague delegations of authority.36 The
amount of discretion compatible with legislative supremacy appears to rely on the
Locke asserts, “ancient Names, and specious Forms, are so far from being better, that they are
much worse, than the state of Nature, or pure Anarchy,” if “the ends for which Government was at
first erected” are not secured (II 225).
35 The third states that the individual’s property may not be taken without his consent. Much has
been debated regarding the meaning of this. This rule is not insignificant for our present purposes,
considering the role judges play in property disputes, but it is not so important that it must be
treated along with the proper interpretation of the sections in question.
36 This example is discussed in greater detail in Ross J. Corbett, “The Extraconstitutionality of
Lockean Prerogative,” Review of Politics 68.3 (Summer 2006), forthcoming. Also of interest is the
example of pardon, for reasons I discuss in that article.
34
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extent to which such authorizations require the people to trust in their rulers’
virtue or goodness. This strongly suggests that law must take the form of rules
rather than standards, with the practical problems this occasions addressed
extralegally through prerogative.37
So, it is through positive legislation that we remedy the first defect in the
state of nature, viz. the lack of a law by which the common judge on earth is to
judge offenses. And this aids us in determining what Locke means by the second
defect, which I shall quote in full.
Secondly, In the State of Nature there wants a known and indifferent
Judge, with Authority to determine all differences according to the
established Law. For every one in that state being both Judge and
Executioner of the Law of Nature, Men being partial to themselves,
Passion and Revenge is very apt to carry them too far, and with too
much heat, in their own Cases; as well as negligence, and
unconcernedness, to make them too remiss, in other Mens. (II 125)
As I said above, we might think that what is needed is an impartial judge of the law
of nature. Locke’s description of the defect would confirm us in this opinion, as
would his description of the judge as known and indifferent. Judgment is to proceed
“according to the established Law,” but it is possible to question what Locke means
by this: Locke suggests that the law of nature is not known by men, but is it now no
longer even “established” or “settled” (cf. II 124)? I hope to have demonstrated in
the foregoing discussion that political society requires judges who judge according to
positive law. This would make judges the bearers of a form of executive power.
For the distinction between rules and standards, see Pierre Schlag, “Rules and Standards,” UCLA
Law Review 33 (December 1985): 379–429; cf. Cass Sunstein, “Problems with Rules,” California Law
Review 83 (July 1995): 953–1023.
37
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So where are we with respect to the common law of England? How much
discretion may a judge exercise before it ceases to be executive and begins to be
legislative power?
To which we must answer, significantly less than judges in
England exercised. Locke’s executive power must apply the law as created by the
legislative authority. If the law grants some discretion, it must be guided by the
intent of the legislature, not by the executive’s independent appraisal of what
justice requires; otherwise, the people would have to trust in their executive’s virtue
or goodness.
Where the prince may judge for himself what the law of nature
requires, he divests himself of the mantle of executive power and exercises
prerogative, with all of the consequences this entails (cf. II 168). This is to say that,
for Locke, there are gaps in the law which are not filled in by appeal to the
principles of natural justice, even when the executive must nonetheless act. In
Blackstone’s account, judges must occasionally determine what the law is, both
written and unwritten, by recourse to those principles. For Locke, this would be
legislation. The common law of England, because not narrowly positivistic, seems
to have no place within the Lockean commonwealth.
IV
There is, of course, an insurmountable problem with the interpretation I have
just advanced. Locke states that the content of the law of nature is as plain, and in
most cases plainer, than the positive laws of a commonwealth,
As much as Reason is easier to be understood, than the Phansies and
intricate Contrivances of Men, following contrary and hidden interests
put into Words; For so truly are a great part of the Municipal Laws of
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Countries, which are only so far right, as they are founded on the Law
of Nature, by which they are to be regulated and interpreted. (II 12)
Locke’s one explicit statement on legal interpretation points us to something more
extreme than Blackstone’s description of the common law.
Put plainly, the requirements of political society demand that the judiciary be
understood as exercising executive power. Locke’s clearest pronouncement on the
interpretation of law gives it a share of what he calls legislative power: he allows
judges to interpret the law of nature directly. This is a contradiction. However
much I have attempted to resolve it, I have been unsuccessful; I am faced with the
possibility that the only option is to explain it. Why does Locke contradict himself
here?
I can only provisionally attempt to address this question. I begin with the
observation that this contradiction might reveal that Locke did not think deeply
about the judiciary. The Two Treatises were intended as a defense of the right of
revolution against claims made on the basis of the divine right of kings. But this
observation is incomplete. The surface structure of Locke’s argument suggests his
polemical purposes should have been accomplished by the end of the First Treatise,
by which point he has demolished any authority that might stand in the way of the
exercise of that right. The Second Treatise is needed, Locke says, to show that
legitimate government can exist (II 1), which is to say that its argument is that the
right of revolution is not absolute. In fact, he concludes by focusing on how limited
it actually is, even while indicating (indirectly yet without subtlety) that the Stuarts
have brought about those rare conditions in which it is justified (II 243). Yet we all
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know that the right of revolution is not that limited, and that Locke’s account of
legitimate government artfully shows this to be true. This gives sufficient cause to
suspect that Locke’s thoughts concerning legitimate government were not crudely
unreflective, and so that he must have thought about where the judiciary fits into
the rule of law.
Locke designates the legislative power as supreme within society and
remarks repeatedly that the executive power is by definition subordinate to it; this
is often taken to be his advocacy for Parliamentary sovereignty. Of course, nothing
within the doctrine he actually lays out demands this result — the king may have a
share of the legislative power, in which case he is not personally subordinate to
Parliament, which could then do nothing without his assent (cf. II 218) — but this is
the prejudice it fosters. It may be that Locke sought to do nothing more than foster
a prejudice in favor of the Parliament. He does suggest, after all, that the king may
legitimately act against it (cf. II 157–8, II 218).
This is important because it is Locke’s emphasis on legislation that makes
the common law tradition of interpretation problematic. This emphasis served his
immediate partisan allegiances.
If, then, we can accept as a plausible
interpretation that these caused him to exaggerate the primacy and supremacy of
legislation, perhaps we can say that his considered judgment regarding politics was
not so alien to the legal traditions of his countrymen as we might otherwise suspect.
Perhaps then we can say that he did not actually support a civil law notion of
jurisprudence in the same manner as did, say, Thomas Hobbes. And we have good
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reason to suspect this to be the case. For example, Locke’s doctrine of prerogative is
irreconcilable with legislative supremacy. Prerogative, rather, is justified by the
maxim salus populi suprema lex (II 158), which is given more specific content in the
next section as a “Fundamental Law of Nature and Government, viz. That as much
as may be, all the Members of the Society are to be preserved” (II 159). This is but a
restatement of the “first and fundamental natural Law, which is to govern even the
Legislative it self, [viz.] the preservation of the Society, and (as far as will consist
with the publick good) of every person in it” (II 134); and this is in turn restated as
“the good of the People” (II 142). That is, this is the principle which renders the
exercise of lethal force upon those who “have Property in their own disposal”
legitimate, for it is only upon this principle that such men would consent to be
subject to that force (II 174; cf. II 134–7, II 169–74). And this principle, we might
say, could justify common law methods of interpretation. William Blackstone, for
example, seems to have thought so.
Yet an emphasis on this could very well undermine the polemical importance
of Locke’s remarks on the legislative power. After all, if the courts may interpret
Parliament’s statutes so as to make them conform with the law of nature, why
cannot the king? Or, more importantly, what if the courts side with the king in his
disputes with Parliament? One of Locke’s strictly partisan efforts was an attempt
to prove that English law forbade the justices presiding over Shaftesbury’s treason
trial, who were Tories, from disqualifying Dissenters from the grand jury, the
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members of which were chosen by the sheriffs, who were themselves Whigs.38
Locke was immediately aware that the judiciary is liable to capture. The insistence
that an independent judiciary is necessary for the rule of law does not guarantee
judicial independence. In fact, it would seem to threaten it precisely when it is most
imperiled by drawing attention to the importance of capturing it: Shaftesbury’s fate
rested on who would prove more successful in corrupting the court!
Still, this does not resolve all of the problems which Locke’s missing judiciary
raises. The principle of legitimate political power is stated in two different ways. In
one, it is the salus populi; in the other, it is the law of nature. The people are the
best judges of the first (cf. II 161, II 242), while their inability to judge the second is
the whole reason why political society is required in the first place (cf. II 123–7).
Judges are ordered to interpret the law according to the latter (II 12), but a respect
for the people’s judgment regarding the former would seem to require stripping the
judiciary of this authority wherever the legislative power is not corrupted, i.e.,
wherever elected representatives can articulate the people’s desires just fine.
Which is to say that the fact that law must be interpreted before it can be applied —
that this is an unavoidable step in the determination of the applicable law in
particular cases — focuses us intently upon an ambiguity in the principle of
legitimate political power. This ambiguity can be exorcised only if the rule of reason
can be reconciled with rule by popularity. Whether by discomforted avoidance or by
subtlety, Locke compels us to confront this ambiguity by his silence on the place of
John Locke, “Selecting the Grand Jury,” in Political Essays, ed. Mark Goldie (Cambridge:
Cambridge University Press, 1997): 283–7.
38
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the judiciary in his separation of powers.
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