John Locke’s Second Treatise and the principle of just war

Enlightenment and Revolution

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John Locke: ‘‘The Second Treatise of

Government’’

‘‘To what extent might it be said that the central

theme of Locke’s Second Treatise is the principle of

just war?’’


2

Introduction

“The People have no other remedy in this, as in all other cases where they have no Judge on

Earth, but to appeal to Heaven”. Locke placed this principle in his Second Treatise1 of

Government, in the chapter dedicated to the subject “of Prerogative”, answering the

question of ‘’who shall be Judge when this Power is made a right use of?” .This people’s

appeal to ‘heaven’, describes an appeal to revolt, in need of a new social contract,

defending their lives, liberties and possessions from the extra constitutional ‘prerogative’

power. In this quote, one can argue, that it is the picture of the lockean ‘just war’.

Nevertheless, in our discussion, over the principle of just war as a central theme in the

Second Treatise, one must include the structural elements of John Locke’s political thought.

Lockean ideology and its principles have made a significant contribution to the study of

political philosophy as part of the debates which bear the fundamental problems and

concepts that frame the study of politics. The following paper is an attempt to present these

fundamental principles of John Locke’s Second Treatise and the principle of just war as a

central theme of his Essay.

There are specific questions to which political philosophers attempt to provide answers for ,

giving their own view of the world and the role of human beings in it. Questions such as,

what is justice? What is a regime? What is citizenship? What is statesmanship, and even

what is God and does He exist? Locke is not an exception in taking this analytical approach.

The Two Treatises of Government is Locke’s doctrine on human nature, the political power

and the civil government. Sir Robert Filmer’s Patriarcha2, or The Natural Power of Kings is

the work on which Locke attempts to construct, as a response, his own theory on

government. The deconstruction of Filmer’s arguments and the intense dialogue between

their writings, are the central theme of Locke’s First Treatise. Locke’s initial book is in many

ways, a deconstruction of the divine right of Kings taken, through the approach of biblical

criticism3. Opposing Filmer’s argument that all political authority derives from the authority

which God gave to Adam and therefore all legitimate authority has a divine right behind it,

Locke, however, sets a different way of governmental approach.

Locke’s approach on Government is mainly part of his Second Treatise, where he sets the

basic axioms of his theory.

‘’Political power then I take to be a Right of making Laws with Penalties of Death, and

consequently all less Penalties, for the Regulating and Preserving of Property, and of

1 Locke J. ,”Two Treatises of Government”, Cambridge University Press, 1967, edited by Peter Laslett.

2 Sir Robert Filmer (1588 – 26 May 1653) was an English political theorist who defended the divine right of

kings. His best known work, Patriarcha, was published in 1680. 3 Introduction to Political Philosophy (Podcast), Dr. Steve B. Smith, Yale University, available at:

http://www.youtube.com/watch?v=5JXgPDgXJC0


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employing the force of the Community, in the Execution of such Laws, and in the defence of

the Common-wealth from Foreign Injury, and this only for the Public Good’’.

In the third paragraph of the Second Treatise Locke defines political power. In the first

chapter, a summary is given of the First Treatise and attempts to forge a connection with

the second part of his Essay and the matters he will address.

Locke begins by developing the idea of equality of human beings in the state of nature and

their natural rights to life, liberty and the state of property. Following this description of the

individual, he develops notions of the community and the civil society. Locke states that

Government is based on the consent of the people and that legitimate government is

limited, constituted by separation of powers. In the last chapters of his Essay, he sets the

specific conditions under which a government becomes abusive and illegitimate, followed

by the people’s right to revolt.

The first part of this research aims to set the fundamental axioms of the human nature,

upon which Locke constructed his own ‘republic’. The structural analysis of the states of

Nature, War and Property, demonstrates the ‘ethos’ of the individual. Thus it is important

in, when evaluating the principle of the ‘just war’ in the Second Treatise, to demonstrate the

ideas deriving from these axioms; the political power, the civil government and their

possible illegitimacy.

Secondly, the nature of political power and the legitimate civil government will be

examined. The beginning and the ends of the political societies, the extent of the legislative

power, the separation and subordination of powers, and the prerogative power, all arise

from the consent of the people, which constitutes the political and governmental structures

of a society. Since the potential arbitrariness of these structures collide with the liberties

and rights of the people, it is important to examine the beginnings and the ends of these

structures, their nature and role in the Lockean system.

The third part of this research is dedicated to the nature of illegitimacy of civil government,

and its forms. The illegitimate civil government and its systematic violation of individual

liberties and rights, but also the deviation from the common interest, are fundamental

causes of conflict within the commonwealth. The intention of this section is to demonstrate

that the nature of illegitimacy is imperative to Locke’s definition of the conditions under

which the people have the right to revolt.

The justification of an action, such as war, derives from the civil government’s potential

violations against the individual and against the society as a whole; this is the main issue

addressed in the final part of the research. Acknowledging the principles that Locke sets in

Second Treatise, this research will elaborate the nature of the ‘just war’ and, the conditions

under which a legitimate revolution might occur and finally, is it the central theme of

Locke’s essay?


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The States of Nature, War and Property

The approach to the concept of ‘just war’ in the Second Treatise is a composite element. The

fundamental principles that Locke sets over the first five chapters of his essay are the main

characteristics of human nature. Locke provides the reader with his philosophical

anthropology, in an effort to rewrite the account of human beginnings. Setting the

individual in the center of the analysis, Locke describes, the passage from the state of

nature to the civil association, which is constructed on fundamental principles, such as, the

states of nature and war and property.

The State of Nature

“To understand Political Power right, and derive it from its Original, we must consider what

State all Men are 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”4.

This passage from the second chapter of the Second Treatise, defines the state of nature.

The state of nature for Locke, similar to Hobbes5, is not a condition of ruling and being ruled

as it is for Aristotle6. The state of nature is not a political condition; it is a state of perfect

freedom without civil authority or civil obligations; a state of equality.

Despite this absence of authority, the state of nature is not an immoral condition, as it is for

Hobbes, instead a condition of war of all against all. The state of nature is a moral condition,

with a natural law, that dictates peace and sociability, determining that no one should harm

another person in their life, liberty or possessions. This state of nature for Locke is a moral

state, in which natural law dictates peace and preservation7.

4 “Two Treatises of Government”, chapter II of the Second Treatise, p. 287

5 See Hobbes T., “Leviathan”, Oxford, 1960, edited by Michael Oakeshott, p. 112. Thomas Hobbes gives the

definition of a commonwealth in chapter 18. The “common defence” of the individuals create a commonwealth, excluding the idea of community from the state of nature. 6 See Aristotle, “Politics”, Oxford, 1961, edited by Ernest Barker, p. 2. In the second chapter of his first book,

Aristotle describes man as a “naturally polis-animal”. For Aristotle the state of nature (naturally) is a combination of nature (animal) and civil association (polis). Hence human is a political animal. 7 Introduction to Political Philosophy (Podcast), Dr. Steve B. Smith, Yale University, available at:



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Thus, for Locke the natural law turns into a right of self-preservation. Under the effect of

this law the state of nature, that is a state of peace, becomes a state of war where every

individual serves as the judge, jury and executioner of the natural law8. By the end of the

second chapter, Locke describes a Hobbesian condition of every man for himself9. At this

point, Locke introduces the concept of conflict in the state of nature, operating for the

preservation of mankind. Locke initially starts by describing the conditions under which a

’just war’ may occur in the state of nature. These natural rights of the individual and his

right of self-preservation and survival, become the elements of the ‘just war’ against the

offender. The elaboration of these principles is an introduction for the third chapter of the

Second Treatise dedicated to the state of war.

The State of War

“It being reasonable and just I should have a right to destroy that which threatens me with

destruction”. With this phrase in the third chapter of the Second Treatise, Locke suggests

one of the key principles of his own theory, which derives from the right of self-

preservation. The destruction of someone who threatens the integrity and freedom of an

individual is “reasonable” and “just”. At this point, Locke lays the foundation upon which he

constructed the concept of ‘just war’. Hence, the conflict and war, which purpose is to

protect the individual from destruction, is a just action, that acquires the form of an

inalienable right.

This state of war, that Locke suggests, is a state of insecurity and distress, similar to

Hobbesian teachings10. Despite the justification of the conflict from reason and the

individual rights, the state of war maintains its structural elements; force and violence.

Deriving from this description of the state of war, Locke gives a different kind of war which

is highly important for the continuation of his theory.

8 “Two Treatises of Government”, chapter II of the Second Treatise, p. 292.The damnified Person has this

Power of approaching to himself, the Goods or Service of the Offender, by right of self-preservation, as every Man has a Power to punish the Crime, to prevent its being committed again, by the Right he has of Preserving Mankind, and doing all reasonable things he can in order to that end”. This passage describes a state of nature similar to Hobbes. Hence the man that executes the law of nature might establish a state of conflict with another person. 9 Ibid., chapter II of the Second Treatise, p. 293. “And hence nothing but Confusion and Disorder will follow,

and that therefore God hath certainly appointed Government to restrain the partially and violence of Men”. The “divine” mission of Government is to “restrain” the “violence of Men”. Another similarity with Hobbes. 10

Ibid., chapter III of the Second Treatise, p. 297. “And one may destroy a Man who makes War upon him, or has discovered an Enmity to his being, for the same Reason, that may kill a Wolf or a Lyon”. The use of examples, deriving from the feral state, to describe the state of war in nature is similar with the “Leviathan”. For Locke, people are able to avoid this state of war only by putting themselves into Society.


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‘’And hence it is, that he who attempts to get another Man into his Absolute Power, does

thereby put himself into a State of War with him; It being to be understood as a Declaration

of a Design upon his Life. For I have reason to conclude, that he who would get me into his

Power without my consent, would use me as he pleased, when he had got me there, and

destroy me too when he had fancy to it: for nobody can desire to have me in his Absolute

Power, unless it be to compel me by force to that, which is against my Right of my Freedom,

i.e. make me a Slave”11.

For Locke each individual has the right to defend their freedom, and through the state of

war, to face the person who wants to violate against his liberties. This fundamental principle

of Locke essentially constitutes the first attempt to approach the limits of governance,

highlighted by the phrase “without my consent”. Therefore any act that affects the freedom

of the individual and does not have his consent, acts in a state of war, in which the person

has every right to defend themselves.

The notion of consent is a fundamental principle of the theory of Locke, which will be

addressed in the second part of the research, examining the nature of political power and

the legitimacy of civil government. Thus using Locke's theory on war and especially

exploring the threat of an absolute power, we continue our discussion on the principle of

‘just war’, focusing on the principle of property.

Property

The fifth chapter of the Second Treatise is one of the most fundamental in Locke’s political

theory. The principle of property is attached with the nature of the individual, but also with

the nature of society in general. Locke describes human nature, as a property acquiring

animal, therefore this concept of property derives from the work of a man, which gives him

legal entitlement to it.

“Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a

Property in his own Person. This no Body has any Right to but himself. The Labour of his

Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he

remotes out of the State of Nature hath provided, and left it in, he hath mixed his Labour

with, and joined to it something that is his own, and thereby makes it his Property”12.

In the above passage, Locke defines the principle of property, which derives from the labor

of the body and the work of the hands. From this, Locke continues his analysis to in

describing the world in which man should act and acquire property.

11

Ibid., chapter III of the Second Treatise, p. 297. 12

Ibid. chapter V of the Second Treatise, p.305.


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“God gave the World to Men in Common; but since he gave it them for their benefit and the

greatest Conveniences of Life they were capable to draw from it, it cannot be supposed he

meant it should always remain common and uncultivated. He gave it to the use of the

Industrious and Rational”13.

With this quote, Locke describes a state of mutual ownership in the state of nature and also

introduces the concept of a ‘natural evolution’. During this process, man has an active role

in the shaping and improving this world and the “Industrious and Rational” are the true

benefactors of the humanity14.

“And thus came in the use of Money, some lasting thing that Men might keep without

spoiling, and that by mutual consent Men would take in exchange for the truly useful, but

perishable Supports of Life” 15.

Locke continues his analysis of property by introducing the concept of money, which has a

nominal value. The introduction of money makes unlimited capital accumulation, not only

possible, but to a certain extent a moral task, enhancing and working upon the resources of

the world. Thus, money is an invention, which replaces the reckless harvesting of raw

materials, which would result in these materials remaining untapped, to the detriment of

mankind.

The principle of property is a central theme in Locke’s political writings and the notions of

labor, money and title turn the lockean ‘republic’ into a state of commerce. Hence property

create a state of inequality of possession by the end of the fifth chapter16. These inequalities

may cause outbreaks of conflict and war between people and it is presented as probable

even within society. The right to property is a fundamental right for every person, according

to Locke, becoming essential in the institutionalisation of the society. “For in Governments

the Laws regulate the right of property, and the possession of land is determined by positive

constitutions”. Therefore, Locke raises the issue of ‘regulations’ of property by laws, as one

of the central subjects in his theory of government.

13

Ibid. chapter V of the Second Treatise, p.309. 14

“The industrious and rational”. With this phrase Locke introduces the middle class ethos, against the nobility. In a way he continues his debate with Filmer. Locke elaborates the ethic of the self-made man; the ethic of work, conquest and domination of work through labour. There are similar ideas and teachings in Max Weber’s “The Protestant Ethic and the Spirit of Capitalism”. This new social class that will replace the nobility is the ‘bourgeoisie’ for the Marxist political thinkers. See also Karl Marx and Friedrich Engels, “The Communist Manifesto”, chapter I." The bourgeoisie, wherever it has got the upper hand, has put an end to all feudal, patriarchal, idyllic relations”. 15

“Two Treatises of Government”, chapter V of the Second Treatise, pp. 318-319 16

See James Madison, “The Federalist Papers”, federal number X. “The diversity in the faculties of men, from which the rights of property originate, is not less an insurable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results[..]”. There is a major influence in the writings of the American founding fathers (Madison, Hamilton, Jay) from Locke’s political teachings.


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According to Locke commercial transactions refine human nature, making it less warlike17.

After the transition from the state of nature to the civil association, the task of a

government is to protect the rights of property and the right to build upon it18. The

inequalities of property within society and the possible intervention of the civil government

against the lives, liberties and possessions of the people, create a state of war. Therefore

the mutual respect of the right of property for Locke is another principle upon which the

individuals construct their commonwealth; but this transition requires the consent of the

people and the formation of a ‘contract’ between them19. As will be demonstrated further

along, the potential violation of the terms of the contract and the arbitrariness of the

government, alongside with the non-observance of the fundamental rights, such as the right

of property, could lead to a ‘just war’.

Political Power and Civil Government

In the first chapter the philosophical anthropology of Locke and the basic principles of the

state of nature were the subject of study. These principles constitute the essential

foundations upon which the transition from the state of nature into the civil association was

structured. Therefore the aim of this chapter is to analyse the structural conditions of this

transition and to focus on the discussion of the principles governing the nature of political

power and the nature of the legitimate civil government. The understanding of the

structural elements cited by Locke on the subject of social association, will lead to a clearer

view of the principle of ‘just war’ within society.

17

See Montesquieu, “The Spirit of Laws”, Cambridge University Press, 1989.Book XX, chapter I, p.338. “Commerce cure destructive prejudices, and it is an almost general rule that everywhere there are gentle mores, there is commerce and that everywhere there is commerce, there are gentle mores.” 18

See Simmons, A.J., “The Lockean theory of rights”, Princeton, 1992. Chapter V, p. 298. “Fairness, then, seems to generate a conflict (on the ‘bounds’, ‘limits’ of property) to generate a conflict. Fair acquisition may result in resources being closed out. But fairness also demands a share for later persons. Governments must settle such conflicts”. 19

See Rousseau, J. J., “On the Social Contract”, Hackett Publishing Company, 1987, p.150. Book I, chapter VIII. “This passage from the state of nature to the civil state produces quite a remarkable change in man, for it substitutes justice for instinct in his behaviour and gives his actions a moral equality they previously lacked”. For Rousseau the civil state is a state of moral equality among the members of the commonwealth.


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Political or Civil Society

Locke begins the debate on civil society in the seventh chapter of the Second Treatise. For

Locke, the concept of society is a relationship; hence the first approaching definition of the

term is through references of the relationship between parents and their children, the

husband and wife, the master and the servant. Locke discusses the examples he sets, by

referring to the “ends” and “bounds” that govern that relationships20.

“Where-ever therefore any number of Men are so united into one Society, as to quit

everyone his Executive Power of the Law of Nature, and to resign it to the publick, there and

there only is a Political, or Civil Society”21.

With this phrase Locke defines the term ‘civil society’. But what is the reason that leads to

this transition and the abandonment of the absolute freedom of the state of nature? For

Locke the problem of the state of nature is the instability, the lack of peaceful enjoyment

and further property acquisition, because there is no civil authority to settle disputes. This

instability and the inequalities within the state of nature create a permanent threat of war

and conflict; a condition of continuous anxiety that derives from the ‘inconveniences’ that

the individual faces. Hence the need of government rises from the need to resolve conflicts

and disputes and the purpose of politics is the protection of property; everything that

surrounds the life and liberties of possession of the individual22.

Subsequently in his analysis, Locke, excludes from the state of civil society, the regime of

absolute monarchy. For Locke the absolute monarchy is not a form of civil government,

continuing his philosophical debate with Filmer.

“Where-ever any persons are, who have not such an Authority to Appeal to, for the

decision of any difference between them, there those persons are still in the State of

Nature. And so is every Absolute Prince in respect of those who are under his Dominion”23.

This exception allows for Locke's definition of political society and the ends it; hence the

people remain in the state of nature when they have no authority to appeal to.

“For the end of Civil Society, being to avoid, and remedy those inconveniences of the State

of Nature, which necessarily follow from every Man’s being Judge in his own Case, by

setting up a known Authority, to which every one of that Society may Appeal upon an Injury

20

“Two Treatises of Government”, chapter VII of the Second Treatise, pp.337-341 21

Ibid. p.343 22

Hobbes emphasises in the absolute fearfulness of the state of nature. For Locke it is a condition of continuously anxiety; a state full of “inconveniences”. 23

“Two Treatises of Government”, chapter VII of the Second Treatise, p.344


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received, or Controversies that may arise, and which every one of the Society ought to

obey;”24.

Thus, people become one body and with their consent, they create the civil society in order

to settle disputes and injuries that may occur. This peaceful settlement becomes a right for

the citizens and under these authorities there are no exceptions25. If these authorities are

absent and the people have nowhere to appeal for justice, they step back to the state of

nature, where every individual has the right to defend his existence according to the law of

nature. Hence the war for establishing such an authority that will adjudicate disputes within

society, acquires an indirect legitimisation, becoming a form of ‘just war’.

The Beginning of Political Societies

The study of the beginning of the political societies cannot be excluded from the

examination of the principle of ‘just war’. In the eighth chapter of the Second Treatise, Locke

develops the structural elements governing the creation of society, inputting principles such

as the consent, the majority and the government. Locke states that the creation of society is

a result of individuals becoming one body with their consent, abandoning their rights that

derive from the law of nature.

“Men being, as has been said, by Nature, all free, equal and independent, no one can be put

out of this Estate, and subjected to the Political Power of another, without his own

Consent”26.

Locke clearly states that there can be no political power, without the consent of the people.

The act of becoming one body, by consent, is prior to elect a form of government to rule the

society. “When any number of Men have so consented to make on Community or

Government, they are thereby presently incorporated, and make one Body Politick, wherein

the Majority have a Right to act and conclude the rest”27.

With this phrase, Locke not only introduces in his theory the principle of the majority, but

essentially confers for the first time the element of the ‘collective’ right. Hence the power

deriving from the will of the majority acts and concludes the rest of the body by right. Locke

does not mention which form of government the people should consent to; he is interested

if the government that rules has the consent of the majority, not in what form it takes.

24

Ibid. p. 344 25

Ibid. p. 348. “No man in Civil Society can be exempted from the Laws of it” 26

Ibid., Eighth Chapter of the Second Treatise, p.348 27

Ibid., p.349


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Hence for Locke the majority will decide the form of government and the ‘body’ should

follow28.

This chapter also introduces some internal problems of Locke’s doctrine of consent, which

may cause war or conflict within society. The form of government that the majority will

consent to, the limits of its actions and the confirmation of the consent, are issues that can

raise social mistrust. For Locke the birth of a human being is not an act for citizenship29,

hence the confirmation of his consent is questioned. For Locke every person is borne free

and equal under the authority only of his parents. The right of the government to rule this

person is not a matter of birth, but a matter of choice30.

After reviewing Locke’s terms regarding consent, we will deal with the form of government,

its limits, and the powers acting within it.

The Ends of Political Society and Government

“The great and chief end therefore, of Mens uniting into Commonwealths, and putting

themselves under Government, is the Preservation of their Property”31.The concept of

property for Locke, as we aforementioned, includes the lives, liberty and possessions of the

individual. The abandonment of the absolute freedom that characterises the state of nature

and the entrance of the individual in the society aims for the mutual protection of property.

This transition raises some specific issue that must to be addressed.

In the state of nature each man operates as judge, jury and executioner of the law of

nature. The need of an authority based upon the common consent, which will be the judge

on what is right and what is wrong is fundamental. The transition into the civil association

demands an established Law received and allowed by common consent, a judge and the

power to enforce the sentence. In this chapter of the Second Treatise, entitled ‘of the Ends

of Political Society and Government’, Locke introduces the powers that operate within

society32.

28

See Dunn J., “The political thought of John Locke”, Cambridge 1969, p.128. Dunn elaborates the principle of the majority into a society without any decision making process, in an attempt to clarify that citizenship creates specific political obligations. “Hence the notion of a political society in the absence of any historically accredited decision-procedure prescribes majority voting on all legislative issues”. 29

“Two Treatises of Government”, p.365. “A child is born a Subject of no Country or Government”. 30

“Two Treatises of Government”, chapter VIII of the Second Treatise. “This is that, which I think, concerning the beginning of Political Societies, and that Consent which makes one a member of any commonwealth” p.367 31

Ibid., chapter IX of the Second Treatise, p.368 32

Ibid., pp.369-371


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The individual within society gives up his powers and follows the rules of the community,

which have been based upon common consent and under the chief end of the preservation

of property. This incorporation of the individual into the commonwealth, demands his

natural force to assist the executive power of the society, which is being regulated by the

laws that the majority have consented to.

If, therefore, people act in pursuance implied by common law and the government acts to

protect the property of each individual, how is to be a conflict and a war in the context of an

ideal well-governed society? The paragraph 131 is one of the most fundamental of the

Second Treatise, giving the obligations and the ends of the powers of government.

“The power of the Society, or Legislative constituted by them, can never be supposed 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 uneasy. And so whoever has the Legislative or Supreme Power of any Common-

wealth, is bound to govern by established 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 employ 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”33.

The peace, safety and the public good of the people are the elements that the government

has to protect under the operation of the powers. The legislative power makes the laws, the

executive power implements the laws and the judicial power interprets and applies the law

in the name of the state, providing a mechanism for the resolution of disputes34. This

separation of powers is fundamental for Locke’s doctrine on government and sets the

legislative power in a supreme position. The principle of ‘just war’ derives from this axiom

because Locke’s purpose for government is to prevent the possibility of the emergence of a

tyrannical or despotic power, or sovereign. Although he does not suggest a particular form

of government, he introduces the principle that whatever form of government the majority

decides upon, it must be one that limits the power of the sovereign, because consent does

not mean ‘subjection’ to an arbitrary ruler35.

Locke’s theory of constitutional government is a theory of restrained government, through

the constitutional restrictions of the rule by law. The legislation protects the rights of the

individuals and it is ‘promulgated’ and ‘known’ to the people and does not include

33

Ibid., p.371 34

From the definition of ‘judiciary’. See also Cardozo, B. N. “The Nature of the Judicial Process”, Yale University Press, 1998. 35

This principle underlines Locke’s indirect comment in chapter VII of the Second Treatise, regarding Hobbes. “This is to think that Men are so foolish that they take care to avoid what Mischiefs may be done them by Pole-Cats, or Foxes, but are content nay think it Safety, to be devoured by Lions.” p. 346


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‘extemporary decrees’. For Locke there is no place for arbitrary and absolute power or

sovereign, everything needs to have the consent of the majority.

The Extent of the Legislative Power

“The first and fundamental positive Law of all Commonwealths, is the establishing of the

Legislative Power”36. The axiom from the eleventh chapter of the Second Treatise reiterates

the importance of the legislative power in Locke’s ‘republic’. Hence the legislative power,

having a central role in the governance of society could be imposed against the other

powers and act arbitrarily against the people. However there are constitutional provisions,

separating the powers of government, which set limits to the initiatives of the legislative

power.

“It is not, nor can possibly be absolutely Arbitrary over the Lives and Fortunes of the

People”37. Every individual gives up his power to the legislator when entering society,

however is not able to give up more power than the one he had in the state of nature. Thus

the legislator is not able to destroy the life and the property of each individual, because the

individual himself did not have this power in the state of nature. This is the first element

that Locke sets as a limit of the legislative power.

“The Legislative, or Supreme Authority, cannot assume to its self a power to Rule by

extemporary Arbitrary Decrees, but is bound to dispense Justice, and decide the Rights of

the Subject by promulgated standing Laws, and known Authoris’d Judges”38.

This is the second element that Locke sets as a limit of the legislative power and although it

is a supreme authority within the society’s government, it cannot rule by ‘arbitrary decrees’.

The legislative power for Locke has a specific purpose, the creation of the rules within the

society and the protection of the property of the people. If the legislative power crosses

that line, it becomes an arbitrary power, threatening the liberties and rights of the

individuals. This arbitrary concept of the legislative power does not have the consent of the

people; as we have mentioned before the people cannot consent to their destruction.

“Whereas by supposing they have given up themselves to the absolute Arbitrary Power and

will of a Legislator, they have disarmed themselves, and armed him, to make a prey of them

36

“Two Treatises of Government”, Eleventh Chapter of the Second Treatise, p.373 37

Ibid., p. 375 38

Ibid., p. 376


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when he pleases”39. With this passage Locke describes a legislator as the absolute

sovereign. This condition for Locke is more dangerous and therefore, more anxious than the

state of nature. He describes a condition of constitutional ‘slavery’ of the individuals, which

may create a state of conflict and war within the society. Under these specific

circumstances, the conflict that will emerge will be legitimate and just, as it is the ultimate

struggle of the people for the protection of their rights and freedoms against a power which

acts arbitrarily against them and does not have their consent40.

The Subordination of the Powers

“There can be but one Supreme Power, which is the Legislative, to which all the rest are and

must be subordinate, yet the Legislative being only a Fiduciary Power to act for certain ends,

there remains still in the People a Supreme Power to remove or alter the Legislative, when

they find the Legislative act contrary to the trust reposed to them”41. With this phrase,

Locke introduces in the thirteenth chapter of the Second Treatise some specific

circumstances under which there may be transformations in the relations of the powers and

overthrows of the primacy of the legislative power.

For Locke the people must forfeit their trust to the legislative power whenever this power

does not serve its purposes and place a new one to defend their safety and security42. Under

these conditions Locke mentions the increased responsibilities of the executive power and

the participation of another branch of government in matters of war and peace in which the

legislator cannot adjudicate. This ‘federative’ branch requires the participation of strong

leaders, who will decide in matters of war or peace preserving the public good43.

Relying on these principles, Locke achieves the connection with the next chapter of the

Second Treatise. His doctrine of prerogative is the result of the inability of the legislative

power to create rules that can apply to all possible events. This doctrine may occur only in

39

Ibid., p. 377 40

Ibid., p. 381. “They must not raise Taxes on the Property of the People, without the Consent of the People, given by themselves, or their Deputies”. Locke describes the raise of taxation as a violation against the liberties of the members of society. Thus government and its policies are based on the Consent of the people. It cannot rule arbitrarily. 41

Ibid., pp. 384-385 42

Ibid., p.385 43

See Machiavelli, “The Prince”, Cambridge University Press, 1988, chapter VI, p.21. “Consequently, all armed prophets succeed whereas unarmed fail”. Locke sets the use of violence in the name of the preservation of the commonwealth and its members. He doesn’t claim that violence is not an option.


15

constituted commonwealths, where there is a separation of powers for the preservation of

the community. As mentioned above, for Locke, this separation creates the proper

circumstances under which the other powers, which are subordinate to the legislative, may

increase their responsibilities for the preservation of the community and its members.

Prerogative Power

“For the Legislators not being able to foresee, and provide, by Laws, for all, that may be

useful to the Community, the Executor of the Laws, having the power in his hands, has by

the common Law of Nature, a right to make use of it, for the good of the Society”44. This

axiom in the fourteenth chapter of the Second Treatise introduces the principle of the

prerogative power, which is the executive power with increased responsibilities.

The executive power must be enforced by the prerogative power in times of danger and

emergency for the good of the community, according to its ‘discretion’ and without the use

of law. Thus the prerogative power is extra constitutional and a potential abuse may occur.

Under this condition the questions that arise are: who shall be judging that is being used for

the public safety and who shall be judge that there is a state of emergency, which the

executive power shall call this state of prerogative power?

In these moments of high constitutional crisis, between conflicting powers of government,

Locke claims that there shall be no judge of earth and “the people have no other remedy in

this, as in all other cases where they have no judge on Earth, but to appeal to Heaven”45. As

mentioned in the introduction, this phrase endorses the principle of ‘just war’ in Locke’s

political writings. This appeal to heaven is an appeal to revolt, against the rulers that

exercise a power that does not respect people’s liberties and rights. As we have seen also in

the chapter of the law of nature, a person does not have the power to destroy himself;

hence he cannot give to another power the right to take his life. This right of self-

preservation acts immediately under these circumstances, inputting a state of ‘just war’ ,

according to the law of nature, in the context of the society; protecting himself from any

arbitrary and absolute power.

44

“Two Treatises of Government”, Chapter XIV of the Second Treatise, p.392 45

Ibid., p.397


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Illegitimate Civil Government and Legitimate Revolution

In the first two chapters of our research we examined the foundations of government and

its relationship with the natural origins of human nature and the source of political power

and legitimate civil government. The purpose of the third and final chapter is the analysis of

illegitimate civil government and its forms and the conditions under which a legitimate

revolution may occur.

Conquest, Usurpation and Tyranny

The nature of illegitimate civil government specifies into three forms of illegitimacy: an

unjust foreign conquest, an internal usurpation of political rule and a tyrannical extension of

power by those who were originally legitimately in power. Locke’s purpose for government,

as aforementioned in our research is to prevent the emergence of a tyrannical, despotic

power or sovereign.

“That the Aggresor, who puts himself into the state of War with another, and

unjusty invades another Man’s right, can by such an unjust War, never come

to have a right over the Conquered, will be easily agreed by all Men, who will

not think, that Robbers and Pyrates have a Right of Empire over whomsoever

they have Force enough to master; or that Men are bound by promises, which

unlawful Force extorts from them”46. In other words, for Locke, “swords do

not give titles” and whoever carries that sword is an unjust conqueror, who

forces an individual into submission. Hence “he that Conquers in an unjust

War, can thereby have no Title to the Subjection and Obedience of the

Conquered”47.

On the other hand, Locke addresses the possibility of a conqueror in a lawful war. This

lawful conqueror does have any power over the people that fought with him on his war and

they should maintain the freedom that they had before. Secondly, the conqueror has power

only on the people that consented or joined the unjust forces that had been used against

him in the first place. But unlike the lawful nature of the war, the nature of the conquest is

perfectly despotical. Hence the conqueror has an absolute power over the conquered but

he does not have their consent for this power. He can make up his damage by using the

46

“Two Treatises of Government”, Chapter XVI of the Second Treatise, p.403 47

Ibid., p.404


17

labor and the estates of the conquered, but he has no power to injure the right of any

other48.

Locke claims that conquest is a foreign usurpation; however in the case of an internal

usurpation of power, “the userper can never have right on his side, it being no Usurpation

but where one is got into the Possession of what another has Right to”49. For Locke, a

usurper is not a person whose power is legitimate, because the people have not consented

to him. Hence he has no title over the people, because he exercised power, without

following the rules deriving from the laws of the community; this is the reason why

usurpation is illegitimate.

“As usurpation is the exercise of Power, which another hath a Right to; so Tyranny is the

exercise of Power beyond Right, which no Body can have a Right to”50. The last form of

illegitimate civil government for Locke is tyranny. This term describes a condition, under

which the sovereign is acting towards the satisfaction of his will and not the preservation of

the properties of the people. For Locke, “where-ever Law ends, Tyranny begin”, describing

the absolute power performed by the ruler in order to satisfy his will. This illegal rule, which

does not follow the law and does not have the consent of the people, is the most dangerous

state; a state of inconvenience; in which people should revolt against the arbitrariness of the

tyrant.

These forms of potential arbitrariness and illegitimacy of civil government, create a

condition of anxiety for the individual and the society as a whole. Under these

circumstances, lawful resistance against these illegal forces may occur. Hence whenever the

people have no option to appeal to for their self-preservation, they appeal to heaven for

justice. The element of the ‘just war’ is based on this principle, reintroducing the law of

nature within society. This conflict is the only measure that people can use as preservation

of their properties and they will consent to a new ‘contract’ that will replace the illegitimate

civil government.

Legitimate Revolution

Throughout the Second Treatise, Locke outlines the concept of civil society according to the

origins of human nature and the law of nature. Furthermore, he presents specifically the

structures of government and the nature of the powers that act within the society. From

48

Ibid., pp. 411-414 49

Ibid., p. 415 50

Ibid., p.416


18

these structures, the possible illegitimacy of the civil government derives and threatens the

welfare of society and its members. This condition of danger and threat is meets the ‘just

war’ of the people that will attempt to protect their property under these circumstances;

therefore, a legitimate revolution may occur as will be examined through the last chapter of

the Second Treatise.

Locke in the last chapter of his book introduces the way that a government dissolves. Except

from the possibility of a foreign force that may cause dissolution, it can also be dissolved by

internal causes. This internal dissolution of government arises in different forms; firstly,

when the legislative power is altered; secondly, when the executive power embodies the

legislative into its own purposes; thirdly, when the executive interferes in the way that

people express their consent through the process of representation; fourthly, when either

the executive or the legislative deliver governance into the subjection of a foreign power51.

These conditions contradict with the fundamental principles upon which the lockean

republic is constructed. "In these and the like Cases, when Government is dissolved, the

People are at liberty to provide for themselves, by erecting a new Legislative”52. For Locke

the people have the right to claim the establishment of a new ‘contract’, of new rules that

will govern their lives. “For the society can never, by the fault of another lose the Native and

Original Right it has to preserve it self, which can only be done by a settled Legislative, and a

fair and impartial execution of the Laws made by it”53. After the dissolution of the

government, the people should consent to a new legislative power, in order to protect their

properties and preserve themselves against a state of anarchy and fear.

For Locke the reason why men enter into society is the preservation of their property54. This

is the basis upon which Locke constructs his political theory; the origin and the end of

political societies. If the properties of the people are under threat from arbitrary powers or

the sovereign, the people have the right to resist, entering a state of war. “But if a long train

of Abuses, Prevarications, and Artifices, all tending the same way”, people “should then

rouze themselves, and endeavor to put the rule into such hands, which may secure the ends

for which Government was as first erected”55. The people have a right to consent into a new

government, into a new ‘contract’ that will arise after the overthrow and dissolution of the

arbitrary power or sovereign.

Locke introduces the principle that people exclude force and they establish laws for the

preservation of property, peace and unity amongst themselves, when they consent to enter

into a political society. For Locke rebellion is “an opposition not to the Persons, but

51

Ibid., pp. 106-115 52

Ibid., p.429 53

Ibid., p.429 54

Ibid., p.430 55

Ibid., p.433


19

Authority, which is founded only in the Constitutions and Laws of Government”56. Hence the

people that “by force break through, and by force justified their violation of them, are truly

and properly Rebels”. According to these axioms the people that put under their grasp the

powers of governing the society and use them, against the ends for which they were

constituted, are guilty of rebellion. This potential violation and arbitrariness against the

properties of the people and the consent of the majority reintroduce a state of war, “which

is that of force without authority”57.

Thus whosoever uses force without having the right; whoever takes away the legislative

power, whoever acts without following the laws; puts himself into a state of war with the

people58. For Locke, the true rebels are those who act arbitrarily against the people and

their property, meaning of course their rights, liberties and possessions. This is Locke’s ‘just

war’ . The people have the right to resist the aggressor, using force, in order to secure their

own existence.

Conclusion

An overall view of the political theory of Locke, as expressed by the Two Treatises of

Government, does support the argument that the principle of ‘just war’ is a central theme in

the Second Treatise. In the first five chapters is the lockean political anthropology, he

defines human nature through the law of nature, giving the fundamental axioms upon

which civil association is constructed.

The states of nature, war and property, are fundamental principles that cannot be excluded

from lockean theory over the political power and legitimate civil government. The people

consent to leave the state of nature, which is full of inconveniences and they enter the civil

state. Within society they establish a government according to the will of the majority, from

whom the powers derive. The supreme position of the legislative power sets the limits

within which the individuals must act as part of one body.

This new condition, the civil association, sets limitations within society and its governance,

according to the origins of human nature. The potential arbitrariness and illegitimacy of the

legislative power, the prerogative power, or the sovereign create a state of war within

society. Under these conditions the individuals have the right to resist and revolt against the

violation of their liberties, lives and possessions; a ‘stasis’ within society59.

56

Ibid., p.433 57

Ibid., p.434 58

Ibid., p.437. Locke’s phrase, “and everyone has a Right to defend himself, and to resist the Aggressor”, is attached to this principle. 59

See Del Lucchese, F. “Conflict, Power, and Multitude in Machiavelli and Spinoza”, Continuum International Publishing Group, 2009, pp.39-40. “When the rhetoric of peace-making and harmony fades away, conflict, internal and external war, stasis and fictional dissensions no longer appear as antipolitical phenomena or as


20

For Locke the principle of ‘just war’ derives from the human nature and the law of nature.

When there is an absolute and arbitrary power that threatens the properties of the people,

the people have a right to resist, entering a condition that is similar to the state of nature; a

state of anxiety, fear and inconveniences. After the overthrow of this arbitrary state, people

have the right to reestablish a new government and a new legislative power, creating new

rules and forging a new ‘contract’ to govern their lives. The new ‘contract’ will have the

consent of the society and will fulfill the basic purposes of the civil association; the respect

and protection of the property of each individual member of society.

This is the core of lockean and liberal political thinking. The view of the politeia through

natural individual rights60. Society will continue to exist even in the state of nature, after the

dissolution of the government. This is because political power returns to the ‘community’,

after the ‘just war’, followed by a creation of a new social contract among individuals61.

Under this axiom, Locke, remains in our days a innovative thinker, justifying the

revolutionary actions that may occur, under an absolute and arbitrary ruling system.

pathologies of the life in common. They are revealed, rather, as the essence of politics, the foundation of the community, setting into motion and fuelling a positive dynamic in the common life of the polis”. 60

See Grant, R.W. “John Locke’s Liberalism”, University of Chicago Press, 1987, pp. 4-5 61

Ashcraft, R. “Revolutionary Politics & Locke’s Two Treatises of Government”, Princeton University Press, 1986.


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Mack, E. “John Locke”, International Journal of Philosophical Studies, Volume 18, Issue 4,

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John Locke’s Second Treatise and the principle of just war

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