Of the Extent of the Legislative Power

Chapter 11 is the constitutional heart of the Second Treatise. The legislative is the supreme power in every commonwealth — but it is supreme within limits, not absolutely. Locke derives four specific limits directly from the purpose for which the legislative was created: the protection of the property — life, liberty, and estates — of every member of the society.

First, the legislative cannot rule by extemporary, arbitrary decrees. It must govern by promulgated, established laws, the same for everyone, applied through authorized judges and ministers. This is the rule of law, as distinct from the rule of persons: the law governs, not the will of whoever holds power at the moment. Second, the legislative cannot take any person's property without consent. Since preserving property is the very reason government was instituted, a legislature that taxes without consent defeats its own raison d'être. This is the principle — no taxation without representation — that became the rallying cry of the American Revolution.

Third, the legislative cannot transfer its power to make laws to anyone else. The people delegated this power specifically and cannot have intended to delegate the right to delegate it further. A legislature that transfers its authority to a king or a committee or a foreign body has exceeded its mandate. Fourth, the legislative cannot exempt any person from the operation of the laws. The same rules must apply to the rich and the poor, the governor and the governed. A legislature that creates one rule for the powerful and another for the weak has violated the trust under which it holds power. All four limits flow from the same source: government is fiduciary, held in trust from the people, and the terms of the trust are defined by the purpose for which it was granted.