We see this delegation and retention of power in Exodus 22. In general, the adjudication of theft is left to society. The theft is brought before the judges to determine guilt and the amount that must be repaid. However, it begins in Exodus 22:2 with the principle that there is no guilt in killing someone who breaks into your house at night.
Similarly, the person who lies in wait is to be judged and executed, and he is not eligible for the cities of refuge.
The law concerning murder in Exodus also allows family members to execute judgment, a remaining portion of the state of nature. However, we see the general principle that once a crime is no longer in progress, the adjudication and execution of sentence are left to society and not to the individual, except in the case of murder and family members.
Leaving delegated powers to the society, the individual submits to the will of the majority in regard to the delegated powers. In most societies, and for most issues this is a simple majority; except where the compact provides for a supermajority.
Super majorities are generally reserved for weighty issues such as amendments to the society. For societies that are very uniform this system works well, as the majority will seldom be narrow. However, in a divided society such as we now experience, where society is closely divided on basic issues of the greatest significance, I find a simple majority to be problematic.
In such instances a large minority, in our experience nearly half, is sure to be dissatisfied. Keeping in mind the words of the Declaration of Independence, “that mankind are more disposed to suffer, while the ills are sufferable, than to right themselves by abolish the forms to which they are accustomed”, it would be best to require a modest supermajority such as 3/5, so that the fabric of society does not change faster than society can tolerate.
Locke states at this point that history bears out the necessity of delegated power being surrendered completely.
There is no record of a society in which this is not the case, there has never been a record of a society whose members remained in a state of nature. Furthermore, people born into an area under the jurisdiction of a government, are not generally at liberty to establish a new government. The exception to this detailed later on is where the existing government is proven to be at war with the people, and so the government itself puts them into a state of nature.
Locke covers this in a later chapter in how a government by its own actions dissolves the society. Such was the claim of those who put William and Mary on the thrown in 1689, and our founders who claimed independence from Great Britain.
He goes on to discuss the foundings of Rome and Venice, and generally the tribes of America, where men in a state of nature voluntarily congregated, and without specific intent, fell into a civil society. Though the society exists, there is no certain recollection of the formation. He likens this to an individual who as an adult cannot remember their own birth or infancy. Even where the rule came under one person, the association was at the outset voluntary.
To Be Continued…
(Part I)