government theory

Chapter 43 Of the Scope of the Legislative Power

134．Since the enjoyment of all kinds of property in peace and security is the great end of men in joining society, and the great instruments and means by which he can attain this end are the laws made by that society, the establishment of the legislative power is the first of all states. as the first and fundamental law of nature which governs the legislative power itself, the end of which is the protection of society and (so far as is consistent with the public good) every member of it.

This legislative power is not only the supreme power of the state, but when the community once entrusts it to certain persons to exercise it, it is sacred and unalterable; unless it is approved by a legislature elected and entrusted by the public, no matter what No order of man in any form or backed by any power can be legally valid and enforceable.Because without this supreme power, the law will lack the absolutely necessary condition for it to become law, that is, social approval.No one can have the power to make laws over society except on the basis of their consent and authority conferred.From this it can be said that the absolute obedience which any man is obliged to show under the most solemn restraints, always comes at last to the supreme power, the Legislative Power, and is directed and restricted by the laws which it makes.Nor can any promise made to any foreign power, or inferior power at home, relieve any member of society from submitting him to the legislature which he authorizes, nor compel him to obey the laws which it has made, or which the laws permit.It would be ridiculous to imagine that a person could be compelled to submit to any power in society that is not the highest power.

135．The legislative power, whether belonging to one or a majority or existing constantly or periodically, is the supreme power of a state, but:

First, it is not, and cannot be, absolutely arbitrary as to the life and property of every people.For, since it is only a combined power committed by the various members of the society to that person or assembly as legislator, it cannot exceed the residual powers of that person or assembly, which were in the state of nature before joining the society, Even the power that people have enjoyed and relinquished to society.The reason is that no one is willing and able to transfer to another more power than he himself enjoys; a person's life or property.

As has been proved, a man cannot subject himself to the arbitrary power of another; and in the state of nature there is no arbitrary power over another man's life, liberty, or property, but what he enjoys is the law of nature. Those powers given to him for the protection of himself and the rest of mankind; these are all the powers which a man relinquishes, or may relinquish, to the State; and the State relinquishes these powers to the Legislature, which cannot therefore exceed this limit. .The power of the legislator, even at its greatest extent, is limited to the general welfare of the society.This power is a power that has no purpose other than protection, which means that there can never be a power to destroy, enslave, or willfully impoverish subjects.The duty imposed by the law of nature has not disappeared, but on many occasions has been expressed more clearly, and through the law of mankind has attached clear penalties to make people obey it.The law of nature, therefore, is the eternal norm of all men, legislators, and others.The laws they make to regulate the actions of others, and their own and others' actions, must be in accordance with the law of nature, which is the will of God, and natural law is a declaration of God's will, and the basic natural law is If the purpose is to protect human beings, then all human sanctions that go against it are not correct or effective.

136．Second, the legislature or the highest authority cannot seize power and rule by temporary arbitrary orders. On the contrary, it must use the long-term effective laws that have been promulgated, and the judicial decisions must be executed by qualified and well-known judges to judge the subjects. right.The reason is that natural law is unwritten and can only be found in people's consciousness. If there is no full-time judge, people will easily cite or apply it wrongly because of their lust or interest, and it is not easy to admit their own mistakes.In this way, natural law loses its proper function, and cannot be used to determine the rights of people living under it, and cannot protect their various properties.When everyone becomes the adjudicator, interpreter and executor of their own cases in the natural law, the natural law is even more useless; usually the reasonable party can only rely on its own personal strength to protect itself, and lacks sufficient strength to Defend yourself from harm, and have no power to punish the offender.In order to avoid damaging people's property in the state of nature, human beings unite into a society, use the power of the whole society to protect their property, and restrict it through long-term effective rules, so that everyone can know what belongs to him of.To this end, men surrender to the society into which they enter, all their natural powers, which may be delegated to whomever they think fit, and entrusted to them, so that they may be governed by duly promulgated laws, and secure their Peace, tranquility, and property will not be as precarious as they were formerly in the state of nature.

137．The use of absolute arbitrary power, or the failure to unify through definite, long-lasting laws, is inconsistent with the purposes of society and government.Men would not forsake their liberties in the state of nature, would not join society, and submit willingly to its constraints, were it not for the protection of their lives, rights, and property, and the absence of long-lasting provisions for securing their peace and tranquility.It is inconceivable that, if they had the power to do so, they would deliberately transfer to another an absolutely arbitrary power over their persons and property, and give power to their magistrates to instill in them at will an unlimited will.This would be to place themselves in a worse position than in the state of nature, where they still enjoy the liberty to defend their rights against others, and to defend them with equal force, whether the defense comes from The aggression of an individual is also the aggression of many assembled together.But if they were supposed to surrender themselves to the absolutely arbitrary power and will of a legislator, this would not only disarm themselves, but arm the legislator at his mercy.

One man is in a far worse position to have power over a hundred thousand men than to be under the arbitrary power of a hundred thousand individuals.Although the strength of a person with this kind of dominance is one hundred thousand times stronger, no one can guarantee that his will will be more correct than that of others.Thus, whatever form the state may take, the ruler should govern by established, accepted laws, not by ad hoc decrees and undecided resolutions.For if the collective power of the public were given to one man or a few, and forced to obey them, whose decisions were made by whim, or by an unrestrained will unknown until the time of use, Severe and presumptuous orders are issued, and again when the man or few have no line or ground for action, and man is in a state much worse than the state of nature.Since all government powers can only serve the welfare of the society, they should not be arbitrary and whimsical, but should be exercised in accordance with established and promulgated laws; thus, on the one hand, the people can know Their responsibilities are safe and secure within the scope of the law; on the other hand, it also properly limits the rulers so that they will not be tempted by the power they have, and use means they are not familiar with and unwilling to admit. So as to achieve the above purpose.

138．Thirdly, the supreme power cannot take any part of anyone's property except with the consent of the person himself.Because the protection of property is both the purpose of the government and the purpose of people joining society, it is necessary to assume and require that people should enjoy property rights, otherwise it must be assumed that they have lost their purpose of joining society because they joined society; this paradoxical It's something no one will admit.Therefore, people in society who have property rights have such a right to the property that the law defines as theirs, that is, no one has the right to take their property or any part of it without their own consent, otherwise they have no property rights.Just imagine, if others have the right to take my belongings without my consent, it means that I have no property rights over these things.

It is therefore a mistake to think that the supreme or legislative power in any country can do as it pleases, and dispose of the people's property at will, or take any part of it at will.If it is supposed that the whole or part of the legislative power of the government belongs to Parliament, and that its members, when it dissolves, are as subject to the common laws of the country as the rest, there is no need to fear this happening.There is danger, however, in governments in which the legislative power is vested in a long-standing assembly, as in a despotism, to a single individual.They will think that they have different interests from other members of the society, so they will take it from the people at will to increase their wealth and power.From this it follows that if he who governs those subjects has the right to take from any subject what part of his private property he wants, and to use and dispose of it as he pleases, then even if good and just laws delimit him from the subjects in general The scope of property rights between the subjects, the subject's individual property rights are still not guaranteed.

139．As has been stated above, whoever holds the government, since it is entrusted to secure the property of the people, and the sovereign or parliament has the power to make laws, and thereby regulate the property rights of the subjects among themselves, without their consent, The monarch and the parliament have absolutely no right to take all or part of the property of the subjects.For this would render the subjects practically no longer entitled to property at all.Let us see, that even an arbitrary power, established when it is necessary, is not arbitrary because it is absolute; limit.Just look at the general application of military discipline.

The act of protecting the army, and thus the whole state, required the absolute obedience of the subjects to the orders of every superior magistrate; their orders, however dangerous or unreasonable, were punishable by death for disobeying or dissenting from them.But we have seen that even if a sergeant can order a soldier to advance to the muzzle, or order him to hold the position alone, the soldier is almost certain to die at that time, but the sergeant still cannot ask the soldier for a penny.In the same way, a general may execute a desperate soldier who evades his duties or disobeys orders, but he cannot dispose of a penny of the soldier's property by virtue of his power of life and death, nor can he take any of the soldier's property. property; even if he could order everything, the slightest disobedience of a soldier would be death.This blind obedience is necessary to the purpose for which the commander has power, which is to protect the rest; on the contrary, the possession of the soldiers' property has nothing to do with this purpose.

140．Government, it is true, cannot be maintained without a great expense, and therefore whoever enjoys its protection should pay a share out of his own property to keep it going.However, this still has to be agreed by everyone, either by themselves or by a majority of their chosen representatives.If any one, in his own position, claims to have the right to tax the people without their assent, he violates the basic provisions concerning the right of property, and defeats the purpose of government.For what property do subjects have if another has the right to take what belongs to them at will?
141．Fourthly, The legislature cannot transfer to any other the power of making laws; and since the legislative power is but a delegated power from the people, he who has it cannot transfer it to someone who has not been delegated.It is only the people who can constitute the legislature, designate the subjects exercising the legislative power, and choose the form of the country.No one can claim that others make laws in their stead, when the people have expressed their will to be regulated, and to be governed by laws which have been made and taken by those men.Subjects are bound by no other laws than those made by those whom they have chosen to entrust the power to make laws for them.

142．These are the duties assigned to them by society, and the limitations which God and the law of nature have placed upon the powers of the legislatures of every country under various forms of government:
First, they should be governed by established laws that treat rich and poor, rich and powerful alike, and peasants alike, and cannot be differentiated by particular circumstances.

In the second place, the purpose of these laws can only be the benefit of the people, and should have no other purpose than that.

Thirdly, the property of the people should never be taxed without the consent of the people or their representatives.This is of course only relevant to such governments, where the legislature is permanent, or at least the people leave no part of the legislative power to their periodically elected representatives.

Fourthly, The legislature should not and cannot yield to any other the power of making laws, nor place it anywhere but in the arrangement of the people.

(End of this chapter)