Locke and the Legislative Point of View: Toleration, Contested Principles, and Law

By Alex Tuckness | Go to book overview

CHAPTER 5
Institutional Roles and the
Legislative Point of View

To this point we have looked at the application of the legislative point of view to situations where a person must decide whether to use state power to punish a moral wrong or promote the public good. A Lockean legislative point of view provides a moral perspective that the persons who must make these decisions, particularly legislators and the citizens who elect them, should employ. The previous chapters simplified the discussion by assuming that the actors are either legislators or citizens trying to bring about a change in the law. In fact, the realities of political life are considerably more complicated than that. The government is not a monolith with a single undivided will. Government actions result from the decisions and actions of a multitude of people acting in specific roles and contexts. Many persons who hold judicial or executive positions have opportunities to articulate principles that will direct the way government uses its power. We can ask not only what the government as a whole should do, but also what particular people in particular institutional roles should do. In this chapter I argue that many public officials who do not occupy traditional legislative roles should also make use of the legislative point of view, although in a somewhat different way from the previous chapters. To make that case I must move beyond the argument for a legislative point of view, strictly defined. Whether or not the legislative point of view is applicable to a particular role depends in large part on how we define that role. For example, if the proper role of the executive is simply to follow the orders of the legislature, one might conclude that the former need not take on a legislative point of view. Locke's understanding of these constitutional roles makes interpretation of a “higher law” a pervasive feature of all of them and thus makes the legislative point of view applicable to all of them.

One might object to Locke's characterization of executive and judicial roles on several grounds. One might object that because Locke's was a natural law theory that gave a primary place to individual conscience, there is little room for institutional roles. Since natural law is higher than positive law, it seems to follow that one should always act on natural law as one understands it rather than subordinating one's own interpretation because of an institutional role that is a creation of positive law or

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