The Civil State In John Locke’s Political Philosophy

The Civil State In John Locke’s Political Philosophy: Its Relevance To Nigerian Democracy

CHAPTER TWO

  • THE ORIGIN OF CIVIL STATE

2.1          The State of Nature                                                                                  At the beginning of the second Chapter in the Second Treatise on Government, Locke tells us that if we are to have a good understanding of political power of the civil government, we should discover how it all originated. Locke’s notion was that men were in the state of nature prior to the foundation of civil state, and he stressed the necessity of knowing this prior condition of men by stating that:

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We must consider what state all men were naturally in, and that is a state of perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or depending upon the will of any other man[1].

The state of nature is “intrinsically characterized by freedom and equality, a state in which all powers is equal, no one having more than the other”[2].In other words, it is a state where equality reigns. Unlike Hobbes’ state of nature where there was “war of all against all, and life was nasty, short and brutish”[3], in Locke’s state of nature though there is state of liberty, it is not a state of license[4] . This means that though men have liberty in the state of nature, no one has the right to destroy himself or the lives of others.

The question that needs to be answered now is: what makes the harming of oneself and others illegitimate in the state of nature? Locke’s answer is that:

The state of nature has a law of nature to govern it, which obliges everyone, 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 possession….[5]

Locke sees the law of nature as law of reason known by the individuals in the state of nature. It is by this ability to reason by the men in the state of nature, that guide their conducts, and it is written nowhere but in the minds of men. This is perhaps why he describes the state of nature as that of men living together according to reason without common superior on earth with authority to judge them[6].

Furthermore, this law of nature, which is law of reason, can be called the law of God, because it is a declaration of the will God and its fundamental purpose being the preservation of mankind on which no human sanction can be good or valid against[7]. This means that, the natural moral law is not simply the egotistical law of self-preservation, but the positive understanding of each person’s value by virtue of his status as a creature of God[8]. Since all men are creatures of one omnipotent God, He has given them the reason to understand and execute the law of nature, and this is why the law of nature which is the law of reason, is called the law of God.

Locke’s view of state of nature is that of state of perfect freedom, for men “… to order their actions and dispose their possessions and as they think fit, within the bounds of the law of nature”[9]. It is pertinent to show in whose hands the execution of the law of nature is. For Locke, in the state of nature, the execution of its law is put in every man’s hand[10]. The idea of punishment in the state of nature is that everyone has the right to punish the transgressor of that law to such a degree, as may hinder its violation. Having power of the law of nature by every man, means that everyone has two distinct rights: “the one of punishing the crime for restraint, and preventing the like offence… the other of taking reparation, which belongs only to the injured party”[11]. If someone violates another’s natural rights, not only do the offended have the right that this should not happen, they also have the additional right to attempt to enforce this executive power of the law of nature, because the offender has put himself in the state of war with others. The executive power of the law of nature, therefore, has three main aspects: first, the right to judge for oneself what actions are and are not in accordance with the law of nature. Second, the right to restrain attempts to violate the law of nature, using force if necessary. Third, against those who in the light of one’s judgment have violated the law of nature, the right to judge what is the appropriate punishment and attempt to impose that punishment. Therefore, it can be said that, “this natural law implied natural rights with correlative duties, and among these rights Locke emphasized particularly the right of private property”[12], which everyone has the right to protect.

2.2          The Right to Private Project

Locke traced man’s right to private property to the state of nature. In other words, the right to ownership of private property did not start in the civil state, but was prior to it in the state of nature, as a natural right. It can be said that, “The central Lockean conception of man in a state of nature is, of course, that of property”[13]. Locke’s notion of the term property is that, it generally means lives, liberties and estates[14]. Laslett in his introduction to Locke’s work stated that man’s rights can be symbolized as property that is something a man can conceive of as distinguished from himself though part of himself. It makes a man’s attributes, such as his freedom, his equality, and his power to execute the law of nature, to become the subject of his consent[15].

Man having the right and duty to preserve himself, he should also have the right to those things which are needed for this purpose. God has given to men the earth and all that is in it for their support and well being. It is of reason therefore, that it is in accordance with God’s will that there should be private property, not just with regard to the fruits of the earth but also with regard to the earth itself[16]. It is true that according to Locke, man has the natural right to acquire private property, but through what means is this acquisition possible and rightful?

Locke’s answer to the above question is that it is only by mixing labour with what nature has given to mankind in common, that one makes the outcome of the labour his own. In his own words:

Though the earth and all inferior creatures be common to all men, yet every man has a property in his own person; this nobody has any right to but himself. The labor of his body and the work of his hands, we may say are properly his[17].

This means that man’s labour is his own and whatever he transforms from its original condition by his labour becomes his own, since he has mixed labour with those things. In other words, it is through labour that property which is commonly and equally meant for everybody by nature becomes private property. Locke explained this with many illustrations. One of them is that, though the water running in the fountain is everyone’s property by nature, the one a person draws out of it becomes his own because he has taken it out of the hands of nature where it was common and belonged equally to all[18].

Locke’s notion of the acquisition of private property does not mean a limitless amassing of property, rather the extent of private property is bound by the law of nature which has given man the right to private property. The limit of amassing property for Locke is:

As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in; whatever is beyond this is more than his share and belongs to others[19].

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It can be stated here that the two essential distinctions Locke makes in relation to human labour and property are, first, that whenever a man appropriates anything, there should be enough of this commodity left for others; second, that even when there is plenty before a man puts in his labour, the law of nature confines the right to property to which anyone can use ‘before it spoils’. The two provisions are meant to secure for the other people what is potentially theirs and to comply with the common law of nature that forbids wastage. This means that it is an offence against the law of nature for anyone’s possession to perish or waste, and in this case the person is liable to punishment because he has invaded his neighbour’s share. It is clear that Locke assumes that there is a natural right to property. In fact, he expressed that,

Every man is born with a double right: first, a right of freedom to his own person… secondly, a right before any other man, to inherit with his brethren his father’s goods[20]

2.3  The Social Contract

Locke viewed the state of nature as a state of perfect freedom and protection of life, liberty and estates, under the bounds of the law of nature. But he realized that men do not always either obey the law of nature, and/or execute the law of nature appropriately. This made the individuals in the state of nature to agree among themselves to set up a civil society, thereby moving themselves from the state of nature to the civil state. In other words, Locke called this medium of leaving the state of nature and entering into civil state, the social contract.

Social contract for Locke means men in the state of nature agreeing among themselves, to enter into civil society. This is consent among all the individuals involved in the formation of any civil society. In other words, the agreement of entering into civil society is not done by force, but rather by the free will of all the individuals concerned to surrender their right of enforcing the law of nature to the community. As A. Appadorai puts it:

The state is created by Locke through the medium of a contract in which each individual agrees with every other to give up to the community the natural right of enforcing the law of reason, in order that life, liberty and property may be preserved[21].

The social contract for Locke is used to preserve natural freedom as much as possible. Men only surrender the right of enforcing the law of nature to the whole community, in order that property might be protected, while each of them still retain all other rights as fully as before. This must be unanimous, since men are by nature free, independent and equal. The social contract in the Lockean view is not a means by which contracting parties forgo their liberty and then live in servitude as obtainable in the rule of Hobbes’ Leviathan. Rather the people forgo only their right of correction and hand them over to a common legislative power for the common good, so that they would preserve their lives, property and freedom[22]. According to Appadorai,

the contract… is also not general, but limited and specific; for the natural right of enforcing the law of reason alone is giving up: the natural rights of life, liberty and property reserved to the individual, limit the just power of the community[23].

Moreover, the contract is an agreement between free individuals to set up a civil society, after which they will agree among themselves on the form of government to rule them. This is in line with Locke’s words that,

…the beginning of politic society depends upon the consent of the individuals to join into and make one society; who, when they are thus incorporated, might set up what form of government they thought fit[24].

This means that the people who have formed the civil society, among themselves give a fiducial power or trust to the government they set up, and this power must be exercised for the sole good of the community.

Furthermore, the social contract can properly be said to be drawn up only once, at the moment of forming a civil society. The problem faced by Locke in this, is that of the way through which the consent of later generations are obtained. But his explanation is that, any man that has any possessions or enjoyment of any part of the domination of any government gives his tacit consent to the society, and is obliged to obey the laws of that government that he enjoys, and under which he is protected like every other citizen[25]. Therefore, tacit consent is given when individuals on reaching maturity continue to accept the protection and benefits of an organized government, instead of withdrawing to other communities, or joining others in forming a new society.

Finally, Locke’s view of the social contract is that each individual involved in the contract must agree to give up all the power necessary to the ends for which they unite into society, to the majority of the community. This means that the original compact must be understood as involving the individual’s consent to submit to the will of the majority. Copleston quoting Locke writes that, “it is necessary the body move that way whither the greater force carries it, which is the consent of the majority”[26]. Willmoore Kendal representing Locke’s view concerning the social contract and its tenets says that:

The original contract is a matter of unanimous agreement; but a central aspect of that agreement is that each will accept the decision of the majority as if it were the act of the whole community[27].

In line with what is stipulated above, contract is made through unanimous consent, and by means of it decision is made by the will of the majority. Therefore, it is through the act of majority that legislative power is set up.

CHAPTER THREE

3.0 THE LOCKEAN CIVIL STATE

3.1 The Purpose of the Civil State

Individuals in the state of nature move from their state and enter the civil state through social contract, as earlier stated.  From Locke’s view of the state of nature, as a state of perfect freedom and equality, where men act within the bounds of natural law, it is of paramount importance to explain why men leave that natural state and enter into civil state. It is on this that Stumpf asked the question: “if the people have natural rights and also know the moral law, why do they desire to leave the state of nature?”1

Though Locke views the state of nature as a state where all men are equal, free and have their natural rights protected by the natural law, yet the enjoyment of these rights is very uncertain and unsafe.  The rights of man in the state of nature, is constantly exposed to the invasion of others, and this makes his life to be insecure.  This happens as Copleston puts it:

For though men, considered in the state of nature, are independent of one another, it is difficult for them to preserve their liberties and rights in actual practice.  For from the fact that in the state of nature all are bound in conscience to obey a common moral law it does not follow that all actually obey this law.  And from the fact that all enjoy equal rights and are morally bound to respect the rights of others it does not follow that all actually respect the rights of others”2.

According to Locke, “the great and chief end, therefore, of men’s uniting into commonwealth and putting themselves under government is the preservation of their property”3.  The word property is not to be taken in the ordinary restricted sense; for Locke explained that he is using the word in a wider sense.  For him men join together in society for the mutual preservation of their lives, liberty and estates which he called by the general name, property4.   The purpose of men going from the state of nature to the civil state being for the protection of their rights shows that there are many things wanting in the state of nature.

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Men in the state of nature are faced with many inconveniences which make the protection of their rights, especially that of property, to be always insecure and unsafe.  The first of the inconveniences is that though the people know the law of nature, or they are capable of knowing it if they turn their minds to it, they do not always develop the knowledge of it, through neglect.  In the words of Locke:

Though the law of nature be plain and intelligible to all rational creatures, yet men, being biased by their interest as well as ignorant for want of studying it, are not apt to all of it as a law binding them in the application of it to their particular cases5.

Therefore, for this inconvenience to be solved there is need for an established, known and written law to define the natural law and decide all controversies, for the security of the rights of the individuals.  This is achieved when men freely contract to enter into civil state.

Another inconvenience in the state of nature is that, by all men being executioners of the law of nature, men are partial in judging others as each person tries to favour himself in his own case. Locke in explaining this stated thus:

… everyone 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 men’s6.

It is desirable, therefore, that there should be a known and indifferent judge with authority to settle all controversies, according to the established law.  In other words, the people while entering the civil state freely surrender their executive power of the law of nature, and give the government the right to independent and just judgment.

The third inconvenience is that in the state of nature men often lack the power to punish crimes, even when their sentence is just.  The person harmed may not have enough power to punish the transgressor who is stronger than he may.  Even if he tries to do it by force, the resistance put up by the offender many a times makes the punishment dangerous and frequently destructive to the executioner7.  In order that this ugly situation continues not to prevail, the people enter into civil state where the power of the execution of the law is only in the hand of trustworthy and well-established government.

Finally, Locke summed up these inconveniences in the state of nature and stated that men go into civil state to remedy these inconveniences in the state of nature.  In his own words:

The inconveniences that they are therein exposed to by the irregular and uncertain exercise of the power every man has of punishing the transgressions of others make them take sanctuary under the established laws of government and therein seek the preservation of their propety8.

Therefore, men leave the state of nature, and enter the civil state for the proper protection of their rights through the establishment of the government whose primary duty is to ensure the maximum protection of the rights of the people and to act for the common good of the community.

  • The Separation of Powers

Locke views that people first of all enter into civil state through Consent, and secondly, they agree among themselves to set up the form of government they think fit through the power of the majority.  Copleston in explaining this stated thus:

By the first compact a man becomes a member of a definite political society and obliges himself to accept the decisions of the majority, while by the second compact the majority (or all) of the members of the new-formed society agree either to carry on the government themselves or to set upon oligarchy or a monarchy, hereditary or elective9.

The people have power to set up a government and entrust it with a definite task; and the government is under an obligation to fulfill this trust.  The people first of all, set up the government by putting the legislative power into such hands as they think fit with trust, so that they be governed by declared laws, for the protection of their rights.  In other words, “the first and fundamental positive law of all commonwealths is the establishing of the legislative power”10, which establishes laws that govern the community for the public good of every person in it.

The members of the legislature have the sole function of making laws, while the power of executing those laws is placed in hands of other group of individuals appointed by the people.  Locke stressed the importance of the division of power chiefly to ensure that those who make the laws do not also execute or administer them, so that they will not be above the law.  For as Locke puts it:

…they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and executing, to their own private advantage, and thereby come to have a distinct interest from the rest of the community contrary to the end of society and government….11

Therefore, another power in the civil state different from the legislative is that of the executive. So the members of the executive have to be distinct from those of the legislative.  The legislative has the duty of making laws, while the executive is in charge of implementing the established laws.

Furthermore, the separation of powers of government is generally referred to the three fold distinction of the executive power, legislative power and judicial power. “But Locke’s triad is different, consisting of the legislative, the executive and what he calls the federative”12.  The power of the federative is that of making war and peace, alliance and treatise; and all the transactions with all foreign persons and communities. Locke regarded it as a separate power, but he remarked that it is almost impracticable for its separation from the executive.  This is because the two powers have the duty of safe guarding the security of the community from ‘within and without’, so when the two powers are entrusted to different persons it would result to ‘disorder and ruin’13.  As for the judicial power, though not explicitly made, Locke seems to have regarded it as part of the executive.

Of the legislative, executive and federative powers, the supreme power lies in the legislative.  This being because they establish laws and for the laws they declare to be effective, they must have supreme power given to them by the people that have appointed them.  Locke therefore explains thus:

In all cases, while the government subsists, the legislative is the supreme power, for what can give laws to another must needs to be superior to him; since the legislative is not other wise legislative of the society but the right it has to make laws for all the parts… the legislative must needs be supreme, and all other powers in any members or part of the society derived from and subordinate to it14.

However, that the legislative is supreme does not mean that it is not under the law as other powers of the government.  In other words, its power is not absolute or arbitrary for the power is held as trust and is therefore only a fiducial power.  Therefore, the points, which Locke insists are that the legislative must be supreme, and that every power including the legislative has a trust to fulfill rather than being absolute or arbitrary.  For the people do not leave the state of nature to enter state of servitude, but rather a state where their rights are to be duly protected by the government. “It is this phenomenon that guarantees checks and balance in the polis”15.

  • The Extent and Limit of Representation

The three powers in the civil state have the extent and limit of their powers.  It is by these extent and limit that their powers are controlled, as against being arbitrary while carrying their functions.

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The executive has the power to enforce the established laws. It has no power to punish anyone unless the person violates an explicitly promulgated law.  “The executive’s right to obedience” as Popkin puts it, “stems only from the fact that it is the person or body vested with the power of the law”16. It has no authority of its own and cannot claim obedience except when it is enforcing that law of the society. The executive may be removed immediately from office if the legislature, or the people, feel that he has violated the limits of the power given him.

The executive, however, has some powers, which enables him to carryout the duties of this office.  One of such is that he can dismiss the legislature, and also invoke it.  In order to avoid the possibility that he will refuse to call it up, there is a limit upon the length of adjournment; he must call it within those limits or be dismissed.  “If he refuses the people have the right to use force against him”17. Another of such powers is that of prerogative.  Locke views the prerogative power of the executive as the “Power to act, according to discretion for the public good, without the prescription of the law and sometimes even against it”18.  This is because, the legislative is not always in session, and there may be matter of urgency, which is not foreseen and prescribed by the established laws.  This power if employed for the benefit of the community and suitably to the trust and end of the government is meant for the common good of the people.

On the part of the legislative, its supremacy is justified because it is specifically concerned with the chief end of the society.  It makes laws to regulate and ensure the protection of people’s life and property. Though the legislative is the supreme power in every common wealth, the limit of its power is that it must not be arbitrary over the lives and fortunes of the people.  This is why Locke emphasized that:

Their power in the utmost bounds of it, is limited to the public good of the society.  It is a power that has no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects19.

The second limit to the use of the legislative supreme authority is that it must govern by promulgated established laws, and is bound to dispense justice and decide the rights of the subjects.  In other words, it cannot assume to itself a power to rule by extemporary arbitrary decrees. This provision is necessary because where there is no standing laws, a person can for one reason or the other, misapply the law of nature.  Again the person may not so easily be convinced of his mistake where there is no established judge.  And the clear result of such a situation is nothing but confusion, uncertainty and fears, which is the situation the people wanted to eliminate by entering into civil state.  Therefore, the supreme power of the legislative should be, as Locke puts it,

…exercised by established and promulgated laws that both the people may know their duty and be safe and secure within the limits of the law and the rulers, to kept within their bounds, and not be tempted by the power they have in their hands to employ it to such purposes….20

Another limit to the legislative power is that it cannot take from any man part of his property without his own consent.  This is so, since it is for the preservation of property that men enter into civil state.  Therefore, when the government takes any man’s property by force, or raise taxes on property without the consent of the people, the purpose of leaving the state of nature becomes defeated.

Fourthly, the people are not bound by any other laws made by anybody else, but by the ones enacted by those they have chosen and authorized to make laws for them.  This being so, the legislative is not authorized to alienate the power of making laws from itself into another person or body.  What the legislative has received from the people is only the power to establish laws, and not equally to transfer it to whomever or wherever it deems fit.  In the words of Locke:

The legislative cannot transfer the power of making the laws to any other hands for its being but a delegated power from the people, they who have it cannot pass it over to others21.

Finally, concerning the federative power and the extent and limit of its representation, Locke did not say much explicitly.  This is so, of course, because it is dependent on the unforeseen foreign affairs that might crop up in due time.  Nevertheless, the general principle of ‘all for the public good’, still binds on it, just as in the legislative and executive powers.

  • The Dissolution of Government

In the civil state when any of the powers of government extends its limits of authority, the people have the right to dissolve the government.  This is because, “Locke would never agree that men had irrevocably transferred their rights to the sovereign”22.  The people can remove the legislative or the executive when they find that they act contrary to the trust reposed in them.  In other words, the government is dissolved when the executive or the legislative act in a manner contrary to their trust.  This can be when either of them invades the property of citizens or tries to obtain arbitrary dominion over their lives, liberties or property. In addition, “the right to rebellion is retained, though rebellion is justified only when the government is dissolved”23 Hence Locke justified the use of rebellious force against unjust and unlawful force.  The reason for this is clearly highlighted in the words of Cranston: “a sovereign who used unlawful force himself created this situation in which it was lawful to resist him”24.

Moreover, Locke further outlined five conditions which can justify the dissolution of government.  These conditions are succinctly captured by Aaron as follows:

But if a monarch seeks to rule without the legislature body, if he interferes with its work and liberty, if he changes the legislative without the consent of the people, if he delivers the people into the subjection of a foreign powers, or lastly, if he so neglects his executive duties as to cause the country to fall into a state of anarchy, then the people have a right to dismiss him”25.

Lastly, it is pertinent to note at this juncture that when the government is dissolved, the political society is not yet dissolved.  By withdrawing their trust from an arbitrary government, the people would in effect, simply be reaffirming their original contract with one another.  The state still remains intact, and the community manifests its power in its right to replace that government by another.  “Thus it is integral to Locke’s system that the government may be dissolved while the society remains intact”26.  This being because the people first of all agreed upon consent to establish the civil state, and then through the power of majority set up the government they thought fit.

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