What is Legislative Power, What Does It Mean?June 27, 2021
A. Source of Legislation
We have mentioned above that Locke defined the legislative power as the power that has the right to explain how the power of the state is to be used to protect the community and its members. How does this legislative power arise and what is its source?
According to Locke, the state is a power to punish the harm done by another outsider to any of the members of the community. It is also the power to make war and peace. Again, the state emerges with a power to determine what appropriate punishment should be given for the various crimes committed among the members of the community. This power is the legislative power. The emergence of legislative power is to protect as much as possible the property of all members of society. However, it should not be forgotten that everyone who enters civilized society and is a member of any state has given up their power to punish crimes against the law of nature. Therefore, they have given the power to prosecute crimes to the legislature. The legislature is actually made by the community itself or its representatives. This means that the state’s judgments are in fact its own, and therefore it has given the state a right to exercise its power at any time. Here is the source of legislative power (as well as executive power).
When people establish political society, they want to enjoy their property in peace and security. For this, the greatest apparatus and tools are needed to ensure that laws are made in society. Here, this is the first and fundamental positive law of all states, and also establishes the legislative power. It is like the first and fundamental natural law that governs the legislation itself for the protection of society, each person in the society and the public good.
Locke reduces the source of legislative power, as well as executive power, to the people. This means that the source of power cannot be sought outside of the will of individuals. Therefore, it rejects the understanding of legitimacy accepted until then regarding the source of political power, especially monarchies. In other words, Locke bases the birth of political society on the will and will of free people, and thus attributes the birth of a legitimate government to this.
B. Nature, Scope and Limits of Legislation
Hayek describes the history of constitutionalism, which is the same as the history of liberalism, as the history of the struggle against the positivist understanding of sovereignty and its ally, the omnipotent state, at least since Locke. The root cause of these statements is Locke’s views on legislative power.
According to Locke, the legislative power is not only the supreme power of the state. It also has a sacred and unalterable place in the hands of the community. The legislative power belongs to the authority created by those who founded the society with their consent, while the society is being established, and it does not belong to any other person or power. Legitimate authority is the body that is given the authority to use this power while establishing a society.
While people are connected to the society with a ceremony, they are under a debt of obedience to the society. It can only be compelled by the supreme power determined at the foundation of society and declared by law. Neither any oath nor any foreign power or any subordinate power in society can separate any member of society from obedience to the legislature established in accordance with the safety of the members. The situation of someone who is attached to any non-superior power in society is not taken seriously. The legislative power, which is the supreme power in every society, can be given to one or more people temporarily or indefinitely.
Defining the legislative power in this way, Locke states that the legislature is a limited power in his work titled “A Letter on Tolerance”: they may lose them because of their violence. Weapons, wealth, and vulgarity (against external forces) are the way to prevent them; a community of citizens; (against internal dangers) are laws. The responsibility of all these has been given to the civil administration by the society. This is the basis, this is the right to use, they constitute the limits of the legislative power, which is the (highest) power in every state”.
Not only does Locke express very clearly and precisely that the legislative power is not an unlimited power, he also clearly states four limitations against the arbitrariness of the legislation.
First, the legislature cannot do whatever it wishes on the life and property of the people. In the state of nature, no one has discretionary power over the life, property, and freedom of another. Therefore, in the transition to political society, it is out of the question for them to give such discretionary power to legislators that no one else has. Therefore, legislative power is limited to the rights and powers that people have in establishing political society. The biggest limit is the public good. The task of the legislature is the souls of the people.