E. CHECKS AND BALANCES
The doctrine that the legislative, executive, and judicial functions of government should be kept separate is characteristic of liberalism; it arose in England in the course of resistance to the Stuarts, and is clearly formulated by Locke, at least as regards the legislature and the executive. The legislative and executive must be separate, he says, to prevent abuse of power. It must of course be understood that when he speaks of the legislature he means Parliament, and when he speaks of the executive he means the king; at least this is what he means emotionally, whatever he may logically intend to mean. Accordingly he thinks of the legislature as virtuous, while the executive is usually wicked.
The legislative, he says, must be supreme, except that it must be removable by the community. It is implied that, like the English House of Commons, the legislative is to be elected from time to time by popular vote. The condition that the legislative is to be removable by the people, if taken seriously, condemns the part allowed by the British Constitution in Locke’s day to King and Lords as part of the legislative power.
In all well-framed governments, Locke says, the legislative and
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executive are separate. The question therefore arises: what is to be done when they conflict? If the executive fails to summon the legislative at the proper times, we are told, the executive is at war with the people, and may be removed by force. This is obviously a view suggested by what happened under Charles I. From 1628 to 1640 he tried to govern without Parliament; this sort of thing, Locke feels, must be prevented, by civil war if necessary.
“Force,” he says, “is to be opposed to nothing but unjust and unlawful force.” This principle is useless in practice unless there exists some body with the legal right to pronounce when force is “unjust and unlawful.” Charles I’s attempt to collect ship-money without the consent of Parliament was declared by his opponents to be “unjust and unlawful,” and by him to be just and lawful. Only the military issue of the Civil War proved that his interpretation of the Constitution was the wrong one. The same thing happened in the American Civil War. Had States the right to secede? No one knew, and only the victory of the North decided the legal question. The belief-which one finds in Locke and in most writers of his time–that any honest man can know what is just and lawful, is one that does not allow for the strength of party bias on both sides, or for the difficulty of establishing a tribunal, whether outwardly or in men’s consciences, that shall be capable of pronouncing authoritatively on vexed questions. In practice, such questions, if sufficiently important, are decided simply by power, not by justice and law.
To some degree, though in veiled language, Locke recognizes this fact. In a dispute between legislative and executive, he says, there is, in certain cases, no judge under Heaven. Since Heaven does not make explicit pronouncements, this means, in effect, that a decision can only be reached by fighting, since it is assumed that Heaven will give the victory to the better cause. Some such view is essential to any doctrine that divides governmental power. Where such a doctrine is embodied in the Constitution, the only way to avoid occasional civil war is to practise compromise and common sense. But compromise and common sense are habits of mind, and cannot be embodied in a written constitution.
It is surprising that Locke says nothing about the judiciary, although this was a burning question in his day. Until the Revolution, judges could at any moment be dismissed by the king; consequently
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they condemned his enemies and acquitted his friends. After the Revolution, they were made irremovable except by an Address from both Houses of Parliament. It was thought that this would cause their decisions to be guided by the law; in fact, in cases involving party spirit, it has merely substituted the judge’s prejudice for the king’s. However that may be, wherever the principle of checks and balances prevailed the judiciary became a third independent branch of government alongside of the legislative and executive. The most noteworthy example is the United States’ Supreme Court.
The history of the doctrine of checks and balances has been interesting.
In England, the country of its origin, it was intended to limit the power of the king, who, until the Revolution, had complete control of the executive. Gradually, however, the executive became dependent upon Parliament, since it was impossible for a ministry to carry on without a majority in the House of Commons. The executive thus became, in effect, a committee chosen in fact, though not in form, by Parliament, with the result that legislative and executive powers became gradually less and less separate. During the last fifty years or so, a further development took place, owing to the Prime Minister’s power of dissolution and to the increasing strictness of party discipline. The majority in Parliament now decides which party shall be in power, but, having decided that, it cannot in practice decided anything else. Proposed legislation is hardly ever enacted unless introduced by government. Thus the government is both legislative and executive, and its power is only limited by the need of occasional general elections. This system is, of course, totally contrary to Locke’s principles.
In France, where the doctrine was preached with great force by Montesquieu, it was held by the more moderate parties in the French Revolution, but was swept into temporary oblivion by the victory of the Jacobins. Napoleon naturally had no use for it, but it was revived at the Restoration, to disappear again with the rise of Napoleon III. It was again revived in 1871, and led to the adoption of a constitution in which the President had very little power and the government could not dissolve the Chambers. The result was to give great power to the Chamber of Deputies, both as against the government and as against the electorate. There was more division of powers than in
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modern England, but less than there should be on Locke’s principles, since the legislature overshadowed the executive. What the French Constitution will be after the present war it is impossible to foresee.
The country where Locke’s principle of the division of powers has found its fullest application is the United States, where the President and Congress are wholly independent of each other, and the Supreme Court is independent of both. Inadvertently, the Constitution made the Supreme Court a branch of the legislature, since nothing is a law if the Supreme Court says it is not. The fact that its powers are nominally only interpretative in reality increases those powers, since it makes it difficult to criticize what are supposed to be purely legal decisions. It says a very great deal for the political sagacity of Americans that this Constitution has only once led to armed conflict.
Locke’s political philosophy was, on the whole, adequate and useful until the industrial revolution. Since then, it has been increasingly unable to tackle the important problems. The power of property, as embodied in vast corporations, grew beyond anything imagined by Locke. The necessary functions of the State–for example, in education–increased enormously. Nationalism brought about an alliance, sometimes an amalgamation, of economic and political power, making war the principal means of competition. The single separate citizen has no longer the power and independence that he had in Locke’s speculations. Our age is one of organization, and its conflicts are between organizations, not between separate individuals. The state of nature, as Locke says, still exists as between States. A new international Social Contract is necessary before we can enjoy the promised benefits of government. When once an international government has been created, much of Locke’s political philosophy will again become applicable, though not the part of it that deals with private property.
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CHAPTER XV Locke’s Influence
FROM the time of Locke down to the present day, there have been in Europe two main types of philosophy, and one of these owes both its doctrines and its method to Locke, while the other was derived first from Descartes and then from Kant. Kant himself thought that he had made a synthesis of the philosophy derived from Descartes and that derived from Locke; but this cannot be admitted, at least from a historical point of view, for the followers of Kant were in the Cartesian, not the Lockean, tradition. The heirs of Locke are, first Berkeley and Hume; second, those of the French philosophes who did not belong to the school of Rousseau; third, Bentham and the philosophical Radicals; fourth, with important accretions from Continental philosophy, Marx and his disciples. But Marx’s system is eclectic, and any simple statement about it is almost sure to be false; I will, therefore, leave him on one side until I come to consider him in detail.
In Locke’s own day, his chief philosophical opponents were the Cartesians and Leibniz. Quite illogically, the victory of Locke’s philosophy in England and France was largely due to the prestige of Newton. Descartes’ authority as a philosopher was enhanced,
