by Jeff Polet
Readers may not be aware of it, but there is a significant academic debate going on about liberalism in general, and “Lockean liberalism” in particular. These debates will have significant consequences for how we understand the American Constitutional order. For example, Catholic “integralists” reject liberalism out of hand and argue that since America is liberal at its inception its very foundations are fragile and flawed.
We will not be adjudicating these claims on this website, but we will be paying attention to the issue. Our view is that Locke is far from decisive in shaping the American founding, but he’s not inconsequential, and this is an independent claim from whether his critics fairly represent his positions.
Locke wrote Two Treatises on Government. In the first treatise, he criticizes arguments that defend the idea that kings rule by divine right. In the second treatise, he lays out his argument for a particular form of government that results not from divine appointment but from the consent of the governed. One way to define liberalism (which is a very slippery term in part because it is used to cover so many disparate ideas) is that it argues from a conception of human beings who pre-exist in any sort of social arrangements, and this pre-existence confers upon them certain “rights” that they negotiate but retain in diminished form once they enter civil society. From the treatise:
But though Men when they enter into Society, give up the Equality, Liberty, and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislative, as the good of the Society shall require; yet it being only with an intention in every one the better to preserve himself his Liberty and Property; (For no rational Creature can be supposed to change his condition with an intention to be worse) the power of the Society, or Legislative constituted by them, can never be suppos’d to extend farther than the common good; but is obliged to secure every ones Property by providing against those three defects above-mentioned, that made the State of Nature so unsafe and uneasie. And so whoever has the Legislative or Supream Power of any Common-wealth, is bound to govern by establish’d standing Laws, promulgated and known to the People, and not by Extemporary Decrees; by indifferent and upright Judges, who are to decide Controversies by those Laws; And to imploy the force of the Community at home, only in the Execution of such Laws, or abroad to prevent or redress Foreign Injuries, and secure the Community from Inroads and Invasion. And all this to be directed to no other end, but the Peace, Safety, and publick good of the People.
The need for clear laws with a neutral agent who can adjudicate disputes and another who can enforce the laws is clearly reflected in our Constitutional system. We’d do well to remember that Locke is giving theoretical shape to a system that was already forming in practice. In this instance, however, I want to draw the reader’s attention to two matters:
- Locke insists that the actions of government pertain to the common good. There is a lot that is contained in this claim, but certainly part of it is the idea that the common good is both a grant of government power but also a limit on it. It cannot serve merely a part, nor can it make claims on individual rights without a justification that it serves the common good. This justification must in term be reasonable.
- But not only reasonable. It must be “promulgated.” This is an idea that Locke gets from Thomas Aquinas, and it’s an important one. By this Locke means two things: the first is that law is meant to “instruct” the citizenry; but it also means that a government has an obligation to make sure the laws are clearly communicated to the people. There are, of course, many ways to obfuscate this communication: one is by couching the laws in jargon and legalese, and another would be by making so many laws that no person can be expected to know what they are. Ignorance of the law may well be a good excuse if the laws are either poorly worded or so overly abundant or complex that no normal person can be expected to the level of mastery they require. Our tax code is a good example of this.
- Does our focus on rights conflict with an interest in the common good?
- Why does Locke place such an emphasis on property? Is this just acquisitiveness, or is something more serious at stake?
- What are the ways in which laws are improperly promulgated? Does a complex and large bureaucracy such as ours make promulgation impossible?