John Locke, in his 2d Treatise on Government: Of Civil Government, Chapter XI (“Of the Extent of the Legislative Power”), Sections 134 and 135, limits governmental power to laying out specific laws to interpret and put into practice the law of nature. He makes this clear in two steps. First, in Section 134, he declares legislative or parliamentary supremacy in the sense of the legislatures supremacy over every other arm of government or anyone claiming to be a governor. The reason the legislature is supreme is that it represents better than any other political body “the consent of society.”
§. 134. THE GREAT end of men’s entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power: as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it. This legislative is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have once placed it: nor can any edict of any body else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law, which has not its sanction from that legislative which the public has chosen and appointed: for without this the law could not have that, which is absolutely necessary to its being a law, the consent of the society, over whom no body can have a power to make laws, but by their own consent, and by authority received from them; and therefore all the obedience, which by the most solemn ties any one can be obliged to pay, ultimately terminates in this supreme power, and is directed by those laws which it enacts: nor can any oaths to any foreign power whatsoever, or any domestic subordinate power, discharge any member of the society from his obedience to the legislative, acting pursuant to their trust: nor oblige him to any obedience contrary to the laws so enacted, or farther than they do allow; it being ridiculous to imagine one can be tied ultimately to obey any power in the society, which is not the supreme.
Note 1 makes this clearer:
Note 1. The lawful power of making laws to command whole politic societies of men, belonging so properly unto the same entire societies, that for any prince or potentate of what kind soever upon earth, to exercise the same of himself, and not by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not therefore which public approbation hath not made so.
Hooker’s Eccl. Pol. l. i. sect. 10. “Of this point therefore we are to note, that sith men naturally have no full and perfect power to command whole politic multitudes of men, therefore utterly without our consent, we could in such sort be at no man’s commandment living. And to be commanded we do consent, when that society, whereof we be a part, hath at any time before consented, without revoking the same after by the like universal agreement.
Laws therefore human, of what kind soever, are available by consent.” Ibid.
Second, John Locke argues that the legislature, while supreme among political bodies in the nation, only has the combined power that all the members of the nation had in the state of nature. Anything that is illegitimate for an individual in the state of nature to do is illegitimate for the legislature to do. What is legitimate for people to do in the state of nature? To preserve their life, liberty and possessions.
§. 135. Though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every commonwealth; yet, First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community; for nobody can transfer to another more power than he has in himself; and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the commonwealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions, must, as well as their own and other men’s actions, be conformable to the law of nature, i. e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good or valid against it.
There are different possible interpretations of preserving life, liberty and possessions. One could argue that talking about “life, liberty and possessions” is a way of pointing to all of the many things people care about. In that case, John Locke would be saying that the government has no right to do anything except that which raises an appropriate social welfare function that can answer to the descriptions “preservation of mankind” and “the public good of the society.”
In other places John Locke puts limits on taking away one person’s life, liberty and possessions to benefit others, since at some point that individual would prefer to have remained in the state of nature.
In my evaluation of government policies, I have found I can identify many government policies clearly worth fighting against by this criterion: at a minimum, to be legitimate, government action must either lead to more of that freedom that people would have in a state of nature, or raise the value of a a social welfare function that includes the inequality that most of us feel in our bones (see “What is a Supply-Side Liberal?” and “Inequality Aversion Utility Functions: Would $1000 Mean More to a Poorer Family than $4000 to One Twice as Rich?”). Therefore it is easy to see one should oppose as an illegitimate use of government power policies that both worsen inequality and reduce freedom. There are many policies of exactly this type: some of the big ones are land-use restrictions that have the effect of excluding the poor from a community, occupational licensing requirements that have the effect of excluding the poor from providing for pay services they are capable of providing, and immigration restrictions that exclude the desperately poor from from working in a country where someone is willing to pay them a better wage than they could get at home. (At a minimum, other great benefits would have to be proven to make up for these obvious harms. The burden of proof for demonstrating the existence of great indirect benefits is on those who would both directly take away freedom and directly hurt the poor.) Taking away freedom to help the relatively richer at the expense of the relatively poorer is not only ugly and wrong, laws that do so deserve no obedience—though pragmatic considerations in the face of the brute force of the state apparatus may lead one to obey them.
By contrast, anything that leads to greater freedom, or to higher social welfare (which typically is by providing public goods in the usual sense, establishing good rules, or by helping the poor) is a law that one should defer to, since one’s own judgment about the appropriate tradeoff between social welfare and freedom is probably not as good as the collective judgment of society or as good as the judgment of the median person in the society on this tradeoff.
For links to other John Locke posts, see these John Locke aggregator posts: