Locke: The Contract as a Trust

Notice what each defect calls for: a legislature, a judiciary, and an executive. Locke's government is built out of the three holes in the state of nature, which is why his account is so much more useful to constitutional lawyers than Hobbes's.

The contract, and the trust

Locke has two stages, and running them together is the commonest error.

Stage one, the social contract. Individuals agree with each other to leave the state of nature and form one political society or community, agreeing to be bound by the decision of the majority.

Stage two, the trust. The community then entrusts power to a government. This is emphatically not a second contract: it is a trust, or as Locke also calls it, a fiduciary power.

Why "trust" rather than "contract" is the most important word in Locke. A contracting party who breaches gives the other a claim for a remedy. A trustee who breaches loses the trust, and the property returns to the person for whose benefit it was held. So on Locke's model the government is never a party with rights of its own: it is a holder of powers for a purpose, and if it acts against that purpose the power falls back to the community.

For a law student the point is sharper still. Locke's language is the language of the law of trusts, and every doctrine that public power is held for a public purpose and must be exercised in good faith is descended from it.

The limits on government

Locke sets out what the legislative power, the supreme power in his scheme, may not do, and this is examinable material in its own right.

It is not arbitrary. It cannot exceed the power the individuals had in the state of nature and transferred, and no one has an arbitrary power over their own life or another's.

It must govern by settled, promulgated laws, and not by extemporary decrees. Law must be known in advance.

It must be administered by indifferent and upright judges.

It cannot take a man's property without his consent. The preservation of property being the end of government, taking it away without consent defeats the purpose.

It cannot transfer the law-making power to anybody else. The people gave it to this body, and the body cannot hand it on.

Dissolution and the right of resistance

Chapter XIX of the Second Treatise is the classical statement, and Locke begins it with a distinction a student should reproduce.

Dissolution of the society is distinguished from dissolution of the government. The society, the community that people formed by agreement, is dissolved only by conquest from outside. The government may be dissolved while the society continues, and when that happens the people are not thrown back into the state of nature: they remain a community, and may set up a new government.

When is a government dissolved? When the legislative is altered, when the ruler acts against the trust, when the executive prevents the legislature from assembling or from acting freely, when the people are delivered into the subjection of a foreign power, and, generally, when those in power use force upon the people without authority.

And who is to judge? Locke's answer is the one that made his book revolutionary: the people shall be judge. Where there is no earthly authority to decide between a ruler and the people, Locke says the remedy is an appeal to heaven, which is his phrase for a resort to force in the last extremity.

Locke defends himself against the charge that this lays a foundation for rebellion, and the defence is worth knowing. He says the doctrine does not encourage disorder, because people are slow to change what they are accustomed to and bear a great many mistakes without complaint; that resistance follows only a long train of abuses making the design visible; and that it is the ruler who breaks the trust, not the people, who are properly called rebels, since it is the ruler who returns to a state of war.

A worked example

A State government, elected for five years, passes a law in its fourth year postponing the next election indefinitely, and orders the police to prevent the legislature from meeting.

On Hobbes's account the subject has nothing to say. The sovereign judges what is necessary and the subject authorised that judgment.

On Locke's account several of his dissolution triggers have fired at once. The legislative has been altered otherwise than by the people's authority; the executive has prevented the legislature from assembling; and force is being used on the people without authority. The government is therefore dissolved, the power reverts to the community, and the people may constitute a new government.

Notice what has and has not happened. The society is intact: there is still a community of people bound to each other. Only the government has fallen. So Locke does not predict chaos; he predicts a new government, which is exactly what a constitutional order provides for by other means.

And notice the modern version of the appeal to heaven. In a constitutional state with an independent court, Locke's last resort is rarely reached, because there is an earthly authority to decide between the ruler and the people. The court doing what Locke could only give to heaven is the single largest difference between his world and a student's.

Distinctions that carry marks

What Locke is NOT

He is not a democrat in the modern sense. The trust is enforced by the community, but Locke's community acts by majority and his political nation was narrow.

He does not say the people may rebel whenever they dislike a law. The trigger is a long train of abuses making a design visible, not a single grievance.

The trust is not a contract. Getting this wrong loses the whole force of his argument, because a contract would give the government rights against the people.

Dissolution of government is not dissolution of society. Locke opens chapter XIX with that distinction precisely because his opponents ran the two together to make his doctrine look like a recipe for anarchy.

Quick revision

1. State of nature: perfect freedom and equality, governed by the law of nature, which teaches that no one ought to harm another in life, health, liberty or possessions.
2. Property is a natural right, arising from mixing one's labour with what was held in common, and it exists before government.
3. Three inconveniences: no settled known law, no indifferent judge, no power to execute the sentence. They correspond to legislature, judiciary and executive.
4. Two stages: a contract forming the society, then a trust placing power in a government. The government is a fiduciary, never a party.
5. Limits on the legislative: not arbitrary; by settled promulgated laws; through upright judges; no taking property without consent; no transfer of the law-making power.
6. Dissolution of government is not dissolution of society. On dissolution the power reverts to the people, who may set up a new government.
7. "The people shall be judge", and in the last extremity there is an appeal to heaven.
8. Locke's defence against the charge of encouraging rebellion: people bear much before acting, resistance follows a long train of abuses, and it is the ruler who is properly the rebel.

Test yourself

1. Describe Locke's state of nature and the three inconveniences of it. It is a state of perfect freedom to order one's actions and dispose of one's possessions, and of equality in which no one has more jurisdiction than another, governed by the law of nature which teaches that no one ought to harm another in life, health, liberty or possessions. Its defects are three: there is no established, settled and known law received by common consent; no known and indifferent judge with authority to decide disputes by it; and no power to support and execute the sentence when given.

2. Why is it important that Locke calls the second stage a trust rather than a contract? Because a contracting party who breaches merely gives the other side a claim, and would have rights of its own against the people. A trustee who breaches loses the trust altogether, and what was held returns to those for whose benefit it was held. On Locke's model the government therefore never holds power in its own right but only for a purpose, so that acting against the purpose ends the authority and returns the power to the community. Every modern doctrine that public power is held for a public purpose descends from this.

3. Set out the limits Locke places on the legislative power. It cannot be arbitrary, since it cannot exceed what individuals possessed in the state of nature and transferred, and nobody has arbitrary power over life. It must govern by settled and promulgated laws rather than extemporary decrees. It must act through indifferent and upright judges. It cannot take a person's property without consent, since preserving property is the end for which it was established. And it cannot transfer the law-making power to any other body, since the people entrusted it to this one.

4. When is a government dissolved, and what follows? When the legislative is altered otherwise than by the people's authority, when the ruler acts contrary to the trust, when the executive prevents the legislature from assembling or acting freely, when the people are delivered to a foreign power, and generally when those in power use force without authority. What follows is not a return to the state of nature, because the society survives; the power reverts to the community, which may constitute a new government. Locke opens the chapter by distinguishing dissolution of the government from dissolution of the society for exactly this reason.

5. How does Locke answer the charge that his doctrine encourages rebellion? By three arguments. People are slow to leave what they are accustomed to and bear many mistakes and inconveniences without rising. Resistance follows only a long train of abuses that makes the design visible, not a single grievance. And the person properly called a rebel is the ruler, since it is the ruler who breaks the trust and returns to a state of war with the people, so the people resisting are restoring the arrangement rather than destroying it.