Content Supersedes Origin of Law
While both political philosophers John Locke and Jean-Jacques Rousseau contend that every individual should be free and no one should be forced to give his or her rights to a king, they propose radically different conceptions on how laws promulgated should be adhered to under the social contract. On Locke’s account of the external legitimization of laws, he argues that legitimacy is contingent on respecting natural rights. Natural rights are rights to life, liberty, and property and these must be the foundation of law. In this sense, there are extra-legal norms that set boundaries for legitimate law, specifically, the content of the law itself. On the other hand, Rousseau contends that internal aspects of the law, explicitly its origin and nature, make it legitimate and believes laws must be adhered to without exception. Rousseau claims the origin of law is created by the “General Will”, and since people have seeded their individual wills into this “General Will”, there can be no reason to deflect from the laws that have been created. Ultimately, the legitimization of law should be primarily based on protecting human rights and such strict adherence to law is not necessary when these rights are violated, no matter their origin.
In John Locke’s Second Treatise of Government, he contends that every man, by consenting with others to make one body politic under one government are granted a secure enjoyment of their properties, and a greater security against outsiders (Locke 52). In terms of his conception of social contract, he says that consent to be governed can either be given explicitly or tacitly. Tacit consent is defined as consent given indirectly by living within the boundaries of a country. As long as their natural rights defined as life, liberty and property are secured by said country, people are consenting to be governed. Locke accompanies this belief by stating that the authority is “bound to dispense justice” (Locke 71) and there are natural limits on the legal exercise of political power. Locke presents a rational version of government that is unable to interfere with the property of its citizens, and forced to rule by a set of strict procedural laws that protect rights. To Locke, when a government violates one’s natural rights, the government has “no right to obedience” (Locke 79) and the people have the freedom to create a new government.
Unlike Locke, Rousseau proposes a view that government is legitimized by the “General Will” of the people. For Rousseau, laws concerning property, religion, and civic duty must be strictly adhered to if they are promulgated via direct democracy. Conversely, Locke states that sometimes strict adherence to the law can do harm. He provides the hypothetical example of a house burning down. He holds that if a house is burning and the only way to stop it is to tear down the house next door, it must be done even though it is against the law (Locke 84). Some suggest that this idea is in reference to the Great Fire of London in 1666 where fire could not be stopped because citizens did not have the consent of owners to tear houses down in order to cease the fire. Consequently, the fire continued to spread, destroying large amounts of infrastructure. This appeal to common sense that Locke uses is essential as there are circumstances (such as this fire) where it is appropriate to break the social contract to protect the rights of people. When life is at stake, the origin of the law becomes trivial and insignificant. He even coins the term ‘prerogative’ which he defines as “the name for this power to act according to discretion, for the public good, without the support of the law and sometimes even against it” (Locke 84). This natural reason that we are all endowed with, should allow us to rightfully disregard the law when necessary because our life, liberty, and property are the main priorities.
To Rousseau, the “General Will” is to be tolerated, even if we are in disagreement with the laws because “the citizen gives his consent to all the laws, including ones that are passed against his opposition, and even laws that punish him when he dares to break any law.” (Rousseau 82). This general will is the source of the laws and Rousseau believes laws based on the general will are legitimate and therefore it is not possible to challenge laws. Rousseau assumes everyone is inherently good and everyone wants to obey the general will, which is a main flaw to his argument. The general will only reflects the opinions of the majority. For Rousseau, whatever the majority says, is to be followed as you have submitted yourself to the general will. This can lead to the tyranny of the majority and the undermining of the voice of the minority. For example, in the United States, for decades the majority was opposed to gay marriage. However, choosing who to marry is a natural right that is not to be violated by the government. In other words, it is necessary to use our own human reason with concern to the laws. Locke acknowledges the minority by stating that if natural rights are infringed upon by the majority, the minority does not have to oblige. It is necessary to state that sometimes the majority acts wrongly, meaning that they inflict upon these natural rights. Additionally, the majority of citizen’s did not believe that women or visible minorities should recognize that the minority can sometimes account for 49% of the population which can consist of millions of people.
Rousseau mistakenly assumes that people are inherently good and will not do harm to others. Therefore, he thinks the “General Will” will always be in the best interest of the people, so there is no need to remove oneself from a political society. However, people have proven to not be inherently good and so it is necessary to use one’s own reason and natural faculty to decide whether a law is right or wrong. For example, sometimes there are international human rights laws that we are obligated to respect that national laws do not. Locke’s argument is substantially more attractive because it appeals to natural reason and an objective standard of law. To reiterate this point, I give the example of a country who does not provide education to a minority. Locke believes that in this circumstance, the people have every right to revolt against the government. If Rousseau’s argument were used in this situation, the affected people would have no right to do anything, which is immoral. The sovereign does not have a right to take away people’s natural rights, even if it is in favor of the majority.
To conclude, both Rousseau and Locke have ideas that are fundamental to the conception of good governance. We can see Locke’s idea that the government can be replaced if they do not respect natural rights in the American Declaration of Independence. That being said, Rousseau’s appeal to the “General Will” can be seen in the U.S. Constitution with the commencement of “We the People”. However, I believe that laws need to protect basic human rights in order to protect the minority and having a strict scrutiny approach to abiding laws is not conducive to that.
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