Abstract:
By looking at examples of different classes and the consequences of breaking the law, one can see that Locke’s claim “govern by promulgated established laws, not to be varied in particular cases, but to have one rule for the rich and poor, for the favourite at court and the country man at plough” (1689) is unrealistic and unachievable.
John Locke claimed that all governments should “govern by promulgated established laws, not to be varied in particular cases, but to have one rule for the rich and poor, for the favourite at court and the country man at plough.” (1689). What Locke meant by this is that he believed a government should rule a state by the enforcement of well established law and that all members of society regardless of their social standings should be treated equal in front of it. This was a revolutionary statement at time, which is probably why Locke’s publication, the Two Treatise of Government was published anonymously. My claim for this paper is that while Locke’s statement theoretically sounds perfect, it very is rarely adhered to. People who have power bend and often break the law and get away with it.
To understand a little more about what may have lead Locke to hold such a view, lets examine some aspects of his time period. Locke was born into a wealthy family. His father was a lawyer (Stanford Encyclopedia of Philosophy, 2007), which most likely played an important role in influencing his position on the rule of law. Locke was born in Britain and at that time a monarch ruled Britain. In Locke’s period, Monarchs were notoriously hypocritical when it came to following the laws that they made. Monarchs often bent the law in their own self-interest. This type of monarchy is often referred to as Absolute Monarchy. (Baker, 1998). Now we can know about possible influences that may have affected Locke’s concept of what the rule of law should. How did Locke actually get to this conclusion?
In Thomas Hobbs’s book, The Leviathan, Hobbs developed this idea of the Social Contract. The Social Contract according to Hobbs was where people came together and gave up a small piece of their natural rights to the state in order the receive the protection offered by the rule of law. (1651). Locke was fascinated by this concept and further developed it. Contract theory for Locke meant that people in a state of nature would inevitably come together to form a political unit. It also meant that this would only last for as long as the government adhered to the social contract between it and its citizens. When Lock speaks about “established laws” (1689), he is speaking about laws that were created in the general interest of society and not to protected the vested interests of the elitist class.
As history has showed us time and time again, all too easily governments fall to greed and the lust for power at the expense of its citizens. This claim from Locke is a widely accepted theory of how things should be. Whether the system of rule is liberal capitalism on the right or communism on the left, most forms of modern political governance accept it. Political power seekers accept Locke’s theory when they are searching for votes. Unfortunately once they assume power they tend to act in their own self-interest. Examples of this can be seen around in South Africa and around the world.
An example of this is only too obvious in South Africa. The leader of South Africa’s ruling party, the African National Congress was indicted on charges of corruption. Jakob Zuma was charged with accepting bribes from a French arms firm. (Associated Press, 2005). These charges were, however, dropped. Zuma never saw his day in court and carried on to become the president of South Africa. (BBC News, 2009) The charges were completely dropped against him. The timing of this coincided with the South African general elections. How did this happen? What forces were at play that allowed a citizen to escape the due process of trial?
The ANC has had a long-standing alliance with two major groups in the South African political scene. The Tripartite Alliance as this alliance is internally referred to, consist of the African National Congress (ANC) as chair member, the South African Communist Party (SACP) and the Congress of South African Trade Unions (SACP). (COSATU, 2010). Zuma got off by rallying public support. Thousands of Zuma supporters gathered out the courthouse where the trial was to be held. This applied pressure on the authorities prosecuting the case. Eventually the Nation Prosecuting Authority (NPA) had to give in to these pressures. This is an example of how a person in a position of power bent the judicial system to escape the reach of law. It is in effect a breach of the Social Contract. Locke would say that the ANC should not be in power and that this would be just cause for a revolution. South Africa is, however, in a relatively infant stage of its democracy. The majority of the South African population is uneducated and loyalist supporters of the ANC. What about more mature nation states? Can one see the warping of the law there to?
What exactly constitutes to the legitimacy of a law? Is it the people that back it or is it the intention behind the law that defines whether or not it is in the interest of society? It appears that more modern states have gotten better at breaking laws. Why break a law when you can pass a new one that allows you to get what you want? This appears to be thinking of mature states. If what you are doing no is no longer against the law, then you will not be held accountable for your actions. Locke’s concept of how the rule of law should be used would then seem to be no longer being applicable as accountability would unattainable. This may indeed be the unseen fatal flaw of the modern state.
In 2001, in response to the 911 attacks on the Twin Towers, the United States of America passed a federal law called the Patriot Act. The Patriot Act loosened the bindings of law enforcement that were established to protect the liberty of the citizens it investigated. Anyone that the government now suspected of terrorism could be detained for an unspecified period of time. The Patriot Act also infringed upon the right of privacy of individuals. (Doyle, 2002). Law enforcement can now tap into any individual’s private communications without a warrant from the court as long as that individual is suspected of terrorist related activates. While this seems like a necessary safety measure, it is, however, open to abuse from the elitist class.
The Patriot Act was passed under the veil of it being in the general interest of the society as a whole. Unfortunately innocent people have been caught in its cross fire and had their rights violated. The government is using the Patriot Act for their self-interest. How is this any better that the instance in South Africa where someone from the ruling class directly broke the law and got away with it?
Maximilien Robespierre's claim that “the characteristic of a popular government is confidence in the people and severity towards itself” (1794) sums up how a government should behave and compliments Locke’s idea of equality for all before the law. What Robespierre is say is that a government that truly abides by the social contract it has sworn to uphold has trust in its electorate and is strict is enforcing the rule of law upon itself. How can a poor man steal and go to prison while someone from the elitist class steals and is elected president? Why when a poor man breaks into your home does he get arrested when government can break into your personal communications without accountability?
In conclusion, Locke’s idea about the equality of the rule of law is just a theory of how things should be. Humans are far too complex with their myriad of emotions, thought and diversity to ever be able to live up to Locke’s expectations. After all, humans tend perform actions that are in their self-interest and very rarely in the general interest of the society as a whole. Law also needs to be enforced. How can this enforcement ever be non-biased when it is the elitist class doing the enforcement? As we have seen in South Africa, social status does matter in a courtroom. Even in mature states where processes and watchdogs are better educated, people find a way to legally break the law as in the case of the USA. People who have power want more power. Whiles Locke’s claim may be valid in a parallel universe where people are free from greed and self-interest; in this universe people are not and subsequently the law can never be non-biased. Perhaps our politicians and leaders should go back to the drawing board and rework a better political system. This is, however, not in their self-interest.
List of references:
· Locke, J, 1690. Second Treatise on Government.
· Robespierre, M, 1794. Justification of the use of Terror.
· Hobbs, T, 1651. Leviathan.
· Baker, D.J, 1998. Absolute Monarchy and the Stuart Constitution. New Haven: Yale University Press.
· BBC News. Zuma corruption charges dropped. [Online]. Available: http://news.bbc.co.uk/2/hi/7985273.stm [Accessed 3 March 2010].
· COSATU. Tripartite Alliance. [Online]. Available: http://www.cosatu.org.za/show.php?include=docs/intropages/2009/webcont0805a.html [Accessed 3 March 2010].
· Doyle, C, 2002. CRS Report for Congress.
· Stanford Encyclopedia of Philosophy. John Locke. [Online]. Available: http://plato.stanford.edu/entries/locke/ [Accessed 3 March 2010].
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