John Locke and the Separation of Powers
CHAPTER 1: Locke and the Enunciation Originating in the Doctrine of Separation of Powers
1. John Locke, Theorist of the English Revolution
John Locke (1632-1704) is the political philosopher of the English Revolution of 1688.
The adoption of the Bill of Rights in 1689 meant the ultimate establishment of constitutional monarchy in England and the establishment of the political and constitutional principle of separation of powers.
Both the Agreement of the People (1649), which established a constitutional structure reflecting the separation between the legislative and executive, and the Instrument of Government (1653), which was the first written constitution in England, marked the establishment of the principle of separation of powers outside the constitutional scheme of mixed government.
2. Origin and Purpose of Political Power
The social contract is the foundation of state political power. The state of nature is a state of peace, equality, and freedom. Man decides to enter into society due to uncertainty and the threat of being invaded by others.
He distinguishes three components of the State functions: regulatory, judicial, and coercive.
The constitution of the laws of society requires man’s surrender of part of the freedom enjoyed in the state of nature, a waiver that will allow people to enjoy freedom “in society”, i.e., the freedom guaranteed by law. This connection makes law and human freedom closely connected constituents of the state. The maintenance of these goals requires the limitation of state political power. Whoever holds the supreme legislature of a State is obliged to govern according to the dictates of the established laws, promulgated and known to the people. Maintaining the rule of law, the rule of law, is the fundamental condition of existence of political power; the justification is that the branches of government must act under the rule of law and remain separate.
3. The Limits to Political Power and Guarantees: The Separation of Powers
The direct relationship between how a state government and ownership of the legislature:
- The legislative power is not absolute and may not be exercised arbitrarily on the fortunes and the lives of the people. This is because the law of nature is superior to the laws of society.
- Legislative or supreme authority cannot claim power and rule by extemporaneous arbitrary decrees. It means affirming the principle of legality.
- The supreme power cannot seize any part of a man’s property. Principle of economic freedom.
- The legislature cannot transfer to anyone the power to make laws. Principle of the nature of legislative power delegated.
The prohibition of absolute and arbitrary exercise of legislative power, the affirmation of the principles of legality and economic freedom, or the postulation of the delegated legislative power is directed to establish a proper mechanism for the effectiveness of the above constraints.
For Locke, the differentiation between executive and federative power is simply functional. A highlight of the separation of powers is the absence of the judiciary within its definition of state powers.
Locke emphasizes two powers of the executive:
- To convene the legislature (parliament)
- To determine the percentage of parliamentary representation territorially
This convening power is temporary.
The power to determine the territorial proportion of parliamentary representation is conceived by Locke as a power of adaptation to changing circumstances of society. He sees this ability as an executive prerogative.
The prerogative is a power attributed to the King for the purpose of this act, in all those cases in which laws cannot foresee, outside the law and even against the law.
The town has no choice, facing the possibility of undermining the executive power of attorney, or both jointly try to abuse their powers over the people themselves, to turn to the right of resistance or insurrection.