Idea which Hegel (1770–1831) ridiculed on the ground that the people

comprise an amorphous mass and that, in any sense possible in a

constitution, the state comes first and creates ‘the people’. According

to Locke, however, the people first hypothetically contract with each

other unanimously to establish a government and then choose an

actual government by majority vote. The form the government takes is

less important. The government as such does not enter into a contract

but takes on a trust, a one-sided promise, whereby it undertakes to

perform its functions of protecting natural rights, respecting individual

freedom and advancing well-being. This is not a contract so that the

government has duties but no rights of its own (see Laws J in R v.

Somerset CC ex parte Fewings (1995)).

Locke called for restraints upon the powers of government in the

form of a separation of powers between the different branches of gov-

ernment to make it difficult for any one group to gain absolute power.

He emphasised the rule of law in the sense that the government should

be bound by the same law as everyone else and there should be a judici-

ary independent of the legislature. However, unlike modern theorists,

he was less concerned with the executive and combined it with the

judiciary. His writings have influenced the common law in respect of

its emphasis upon private property rights (see Entick v. Carrington

(1765); Burmah Oil Corp. v. Lord Advocate (1965)).

Locke also influenced the American revolution by virtue of his belief

in the importance of individual rights and the limited role of the state.

Indeed a modified passage from Locke, famously prefaced the United

States Declaration of Independence (1776). Locke wrote in the second

edition of his Essay on Human Understanding: ‘Civil interests I call life,

liberty health and indolency of the body (substituted in the Declaration

29

Constitutional Values

by ‘the pursuit of happiness’). It is the duty of the Civil Magistrate, by

the impartial execution of equal laws, to secure unto all the people . . .

the just possession of these things belonging to this life.’

Locke did not, however, favour legal constraints on the lawmaker

itself. He regarded the contribution of lawyers as ‘artificial ignorance

and learned gibberish’ (Two Treatises on Government, para. 12, p. 275)

and preferred to restrain the lawmaker by political means. Locke can

claim to have introduced the notion of representative democracy.

According to Locke, government should be appointed and dismissable

by a majority vote representing those with a stake in the community.

He justified this on the basis that the majority commands most force.

He also upheld a right to rebel against a government that broke its

trust. The ideas of rights protected by the courts and majority rule by

equal citizens were developed by later eighteenth-century writers such

as Thomas Paine and Jean Jacques Rousseau and implemented in the

French Revolution.