The legitimacy of an English king depended (in a way) on proving the descent of William the Conqueror: the right of conquest was therefore a subject full of constitutional connotations. Locke does not say that all subsequent English monarchs were illegitimate, but he makes their legitimate authority dependent solely on the approval of the people. In the second treatise, Locke develops a number of remarkable themes. It begins with an account of the state of nature, where individuals are not obliged to obey one another, but each judge for himself what natural law requires. It also includes conquest and slavery, property, representative government and the right to revolution. Locke is not opposed to different institutions being called courts, but he does not see interpretation as a function or power in itself. For Locke, legislation is primarily about enacting a general rule that determines what types of actions should receive what types of penalties. The executive branch is the power to make the judgments necessary to apply these rules in certain cases and to use force in accordance with the instructions of the rule (Two Treaties 2:88-89). Both actions involve interpretations. Locke asserts that positive laws are “on the right only to the extent that they are based on the natural law by which they must be regulated and interpreted” (2.12).
In other words, the executive branch must interpret laws in light of its understanding of natural law. Similarly, legislation implies the clarification of the laws of nature and the determination of their application to particular circumstances (2.135), which also requires an interpretation of natural law. Locke did not think of interpreting the law as a separate function because he thought it was part of both legislative and executive functions (Tuckness 2002a). If we compare Locke`s formulation of the separation of powers with the later ideas of Montesquieu (1989), we see that they are not as different as they may seem at first glance. Although Montesquieu gives the more familiar division of legislative, executive, and judicial, as he explains what he means by these terms, he asserts the superiority of legislative power and describes executive power as dealing with international affairs (Locke`s federal power) and the judiciary as concerned with the internal execution of laws (Locke`s executive power). It is more the terminology than the concepts that have changed. Locke viewed the arrest of a person, the conviction of a person, and the punishment of a person as part of the law enforcement function and not as a separate function (Tuckness, 2002a). The difference with Hobbes is most evident in Locke`s argument about ownership. Hobbes and Locke agree that individuals have a right to property in the state of nature, but Hobbes denies that individuals have an obligation to respect the property of others. This makes Hobbes` natural property more or less useless. Locke says that individuals have a duty to respect the property (and life and freedoms) of others, even in the state of nature, a duty he attributes to natural law. [2] Natural law and natural rights coexist, but natural law is paramount and requires respect for the rights of others.
Still other commentators focus on the third argument, namely that the magistrate may be wrong. Here is the question of whether Locke`s argument is questionable or not. The two most promising arguments are as follows. Wootton (1993) argues that, from the perspective of a particular individual, there is very good reason to think that governments will be wrong about which religion is true. Governments are motivated by the pursuit of power, not truth, and are unlikely to be good leaders in religious matters. Since there are so many different religions held by the rulers, if only one is true, then my own leader`s views are probably not true. Wootton therefore accepts Locke as proof that, from the point of view of the individual, it is irrational to accept state support for religion. Another interpretation of the third argument is presented by Tuckness. He argues that the likelihood of a judge being wrong creates a principle of tolerance based on what is rational from the point of view of a legislator, not from the point of view of a citizen or leader.
Drawing on Locke`s later writings on tolerance, he argues that Locke`s theory of natural law assumes that God, as the author of natural law, takes into account the fallibility of judges who will execute the commandments of natural law. If “using force to promote true religion” were a commandment of natural law addressed to all judges, it would not favor true religion in practice because so many judges mistakenly believe that their religion is the true one. Tuckness argues that in Locke`s later writings on tolerance, he moved away from accepting arguments based on what is instrumentally rational for an individual. Instead, he emphasized human fallibility and the need for universal principles. This does not say why an individual is allowed to extract from nature`s common supply.