John Locke: No One is Above the Law, which Must Be Established and Promulgated and Designed for the Good of the People; Taxes and Governmental Succession Require Approval of Elected Representatives

John Locke’s views are important because so many of the framers of the US Constitution had read his works. In Sections 141-142 of his 2d Treatise on Government: Of Civil Government, he completes and summarizes his Chapter XI (“Of the Extent of the Legislative Power”) delineation of what powers rulers have and what they don’t have. In reading these sections, it is important to remember that John Locke uses the word “legislative” to refer to the ruler or rulers of a commonwealth.

As with taxation, John Locke views the transfer of power from one ruler to another as something that requires authorization by elected representatives—though his lack of insistence that a monarchy must be elective suggests that this authorization by elected representatives could be long prior to the existing ruler dying or stepping down:

§. 141. Fourthly, The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and authorized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.  

In addition to succession within a commonwealth of a given geographical extent, this seems to imply that annexation of lands that were outside the commonwealth—or cession of lands that were in the commonwealth to the control of some ruler outside the commonwealth—requires approval by elected representatives of the people in those lands. However, John Locke does not directly address that issue in this passage.

In Section 142, John Lock gives a good summary of the limits to the power of rulers, I have boiled down this summary still further into the title of this post.

§. 142. These are the bounds, which the trust, that is put in them by the society, and the law of God and nature, have set to the legislative power of every commonwealth, in all forms of government.  

First, They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court, and the country man at plough.  

Secondly, These laws also ought to be designed for no other end ultimately, but the good of the people.  

Thirdly, They must not raise Taxes on the property of the people, without the consent of the people, given by themselves, or their deputies. And this properly concerns only such governments, where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves.  

Fourthly, The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have.

For links to other John Locke posts, see these John Locke aggregator posts: