Locke on Sovereignty in the Second Treatise.

I had intended to start the week with a different post. But last week during a lecture, I confidently asserted that for Locke the people remain sovereign. In support I quoted the following passage: “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 in them.” The problem was I had with equal confidence — quoting “there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate,” — asserted that parliament is sovereign about forty minutes earlier on another slide. An alert student caught the inconsistency. Sheepishly, I had to use ‘bubu’ in the technical sense (as in, ‘I made a bubu’). But I saw that I couldn’t improvise may way to a solution, so I promised to think about it.

Subsequently I queried my direct colleagues and academic friends on social media, on Locke’s account of sovereignty (in the sense used by Hobbes, Rousseau, Dicey, and Schmitt—these have diverging views about who and what it is, but it’s pretty clear what they mean). Much to my amazement there was no consensus view. People offered widely diverging views: parliament, God, the people, society, individuals, etc. This left me further baffled, how could there be such disagreement on such a canonical text on such a relatively straightforward matter? I recalled a mysterious passage from Russell’s History of Western Philosophy, where he says about Locke, “He is always sensible, and always willing to sacrifice logic rather than become paradoxical.”

Now, the two passages that I quoted above are both from chapter 13, section 149 in the Second Treatise of Government (hereafter Second Treatise or ST). When read in full that section provides us with important clues, but before I get to that it may be useful to offer some preliminaries.

In the Second Treatise Locke uses ‘sovereign’ (and its cognates) only eight times. The first occasion tells us that we are born equal in the state of nature. He then goes on to write:

unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.—ST 2.4

This passage has four important implications: (i) God has sovereignty. This is confirmed by a passage a few lines down: “men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business.” (ST 2.6)

Clearly, (ii) God may confer sovereignty on individuals if there are “evident and clear” signs of God’s intent. It’s natural to think Locke has Moses in mind here or means to evoke him to his readers. Be that as it may, it does seem that (iii) an individual can posses sovereignty (see also my discussion of ST 6.61 below). And it (iv) is characterized here in rather Hobbesian terms. (In chapter 20 of Leviathan, dominion and ‘Soveraignty’ are pretty much used as synonyms.)

Before I move on two comments. First, it’s natural to think of the individual sovereignty in (iii) as a kind of delegated or derived sovereignty. Such delegation of power is, in fact, ubiquitous in Locke’s Second Treatise, so we shouldn’t ignore it. Second, how to understand Locke’s views on what can be known about God’s intentions is itself rather contested terrain. It’s worth noting, however, that in the Letter Concerning Toleration, Locke very strongly implies that no existing government has such sovereignty delegated from God. And this is one very reason why he leaves open the path to our salvation to our individual conscience and the church we opt to join.

Three other occasions of the use of ‘sovereignty’ involve an explicit attack on patriarchy. In particular, on the idea that the father is sovereign in the family (a view associated with Filmer). This is strongly denied. I quote one such instance: “all this puts no scepter into the father’s hand, no sovereign power of commanding.” (ST. 6.69; see also ST 7.83 & ST 8.115) The passage at 7.83 is worth noting because, while Locke is as Mary Astell noted not a proto-feminist (in the way, say, Hobbes, Toland, and Mandeville are), he clearly rejects the husband’s dominion over the women and allows the civil magistrate considerable freedom to order equitable marriages.

There is a related passage, which also is offered in the context of an attack on patriarchal sovereignty which comes first and is worth quoting. While responding to Filmer’s patriarchal defense of monarchy, it occurs in the context of Locke's explanation of how we can both have equal “natural freedom” while a “child” has temporary “subjection to parents:”

The necessities of his life, the health of his body, and the information of his mind, would require him to be directed by the will of others, and not his own; and yet will any one think, that this restraint and subjection were inconsistent with, or spoiled him of that liberty or sovereignty he had a right to, or gave away his empire to those who had the government of his nonage? (ST 6.61)

What’s neat about this passage is that it clearly claims that conceptually each of us has a natural right capacity for to sovereignty, and so reinforces my claim about (ST 2.4) that (iii) an individual can posses sovereignty. [My correction is due to comments by Abe Stone, who thinks all of the part I quoted from ST 6.61 is not Locke’s own view, but only asserted at arm’s length. What follows below does not rely on ST 6.61 ] In addition, adding to (iv), here (v) Locke seems to be treating sovereignty as dominion and liberty.*

The last passage in which Locke uses ‘sovereignty’ explicitly is itself quite interesting. I quote:

Thus we see, that the kings of the Indians in America, which is still a pattern of the first ages in Asia and Europe, whilst the inhabitants were too few for the country, and want of people and money gave men no temptation to enlarge their possessions of land, or contest for wider extent of ground, are little more than generals of their armies; and though they command absolutely in war, yet at home and in time of peace they exercise very little dominion, and have but a very moderate sovereignty, the resolutions of peace and war being ordinarily either in the people, or in a council. Tho’ the war itself, which admits not of plurality of governors, naturally devolves the command into the king’s sole authority.—ST 8.108

Because Locke’s reputation as an ideologue of settler-colonialism is now reasonably well entrenched, it is sometimes easy to forget that in the Second Treatise his account of the north American natives is (while at times factually incorrect) actually quite respectful. He treats them as exemplars of what it’s like to live in the early state of nature (they lack extended property and money).

I put it like that because there are other places where Locke suggests he also follows (say) Sepulveda’' (recall) disastrous trope that the natives are inferior, and like backward children: *"If you know the customs and manners of different peoples, that the Spanish have a perfect right to rule these barbarians of the New World and the adjacent islands, who in prudence, skill, virtues, and humanity are as inferior to the Spanish as children to adults." For, in the Essay, Locke, treats the savage mind as if a child's (see, especially, 1.2.27), and he suggests they don't think general propositions (1.2.12). And so, in the Essay Locke anticipates both eighteenth century stadial views of history or nineteenth century views of civilizational hierarchy (some such views date back to the ancients). But in the Second Treatise, Locke does not engage in such argument.

So, ST 8.108 fits the pattern associated with (iii) that individuals can have sovereignty (at least in the state of nature), and (v) that it involves indeed a kind of liberty and dominion. But it also adds three other important features. First (a) sovereignty can come in degrees (“absolute” vs “moderate”). Second (b) the character of sovereignty is organized functionally. In war, it has to be absolute for practical purposes, but not otherwise. Third, (c) sovereignty is clearly divided or distributed. It’s not the king who decides on declaring war and peace, but either “the people” or “a council.”

All three of these features (a-c) are present in the passage that originally confused me. Here we are not in the state of nature anymore, but rather the social contract has created civil society. I quote it now in full.

THOUGH in a constituted commonwealth, standing upon its own basis, and acting according to its own nature, that is, acting for the preservation of the community, 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 in them: for all power given with trust for the attaining an end, being limited by that end, whenever that end is manifestly neglected, or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry on designs against the liberties and properties of the subject: for no man or society of men, having a power to deliver up their preservation, or consequently the means of it, to the absolute will and arbitrary dominion of another; when ever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve, what they have not a power to part with; and to rid themselves of those, who invade this fundamental, sacred, and unalterable law of self-preservation, for which they entered into society. And thus the community may be said in this respect to be always the supreme power, but not as considered under any form of government, because this power of the people can never take place till the government be dissolved.—ST 13. 149

While the term ‘sovereign’ is not used, I think we see in this passage sovereignty (in the sense of supreme power) treated as delegated, as it were, from below, or held in trust (fiduciary). I put it like that to distinguish it from the kind of delegated sovereignty from, as it were, above when God’s intentions are clear. And this delegated sovereignty (from below) is clearly intended to be functional, and (against Hobbes), thereby, revocable and limited.+

In fact, even when the legislative is in charge, the people are not meant to be subject to any “absolute will and arbitrary dominion of another.” So, the point of delegating sovereignty to parliament is to secure freedom to individuals and society (even when it does not exercise sovereignty itself).

In addition, once alerted by ST 8.108, a natural reading of 13.149 is to treat it as offering an account of distributed sovereignty. This also fits Locke’s account of the functional division and differentiation of powers that he offers throughout chapter 13. (In contrast to the tradition following Montesquieu this functional division need not be institutional, a point Rousseau notes in the Social Contract 3.17.)

Where does this leave us?

It’s undeniable that for Locke, God is sovereign. This is not trivial because Locke’s account of the origin of property seems to me modeled on it. (That’s for another time.) But also that for many purposes this can be bracketed because Locke is rather deflationary about our epistemic capacities to discern God’s intentions when it comes to particular possible delegated sovereigns.

When we’re thinking about the Lockean counterpart of Hobbes’ sovereign, it seems plausible to say that nobody is sovereign once we have escaped from the state of nature (he doesn’t use the term when discussing authority once society is around); or to say that society is sovereign; or, if you think he is a bourgeois ideologue of property that parliament is sovereign (Sect. 13. 150.)

Originally, when I started reflecting on this, I wanted to claim that society is sovereign for Locke. But as I discussed it with me friends and reflected on the material discussed above, it’s more apt to say that Locke thinks sovereignty is distributed along functional lines. In a way this is part of the inheritance of the state of nature. And given how important the native Indians of America are to this argument, we might say (as a kind of response to the sort of arguments Graeber & Wengrow make) that the lockean social contract is designed to preserve all the perceived advantages Locke saw in the political life of native Americans, but with the possibility to grow richer and more powerful, albeit much less equal.**

*On my view Locke’s account of ‘liberty’ mixes Hobbesian and what we would now call ‘republican’ elements. See, especially, his treatment of the state of nature as 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” (ST 2.4)

+To be sure, the emphasis on the right to self-preservation is rather Hobbesian in character.

**I thank my students in “Authority, Accountability, and Legislation” as well as Abe Stone, Kevin Vallier, Ruth Groff, Jacob T. Levy, Jamie Mayerfeld, Daniel Layman.