Editing Separation of powers (section)

=== John Locke's legislative, executive, and federative powers ===

[[File:John Locke by John Greenhill.jpg|thumb|[[John Locke]]]]

An earlier forerunner to Montesquieu's tripartite system was articulated by [[John Locke]] in his work ''[[Two Treatises of Government]]'' (1690).<ref>{{Cite journal |last=Kurland |first=Phillip |date=1986 |title=The Rise and Fall of the 'Doctrine' of Separation of Powers |url=https://chicagounbound.uchicago.edu/journal_articles/8021 |journal=Michigan Law Review |volume=85 |issue=3 |page=595 |doi=10.2307/1288758 |jstor=1288758|url-access=subscription }}</ref> In the ''Two Treatises'', Locke distinguished between legislative, executive, and federative power. Locke defined legislative power as having "the right to direct how the force of the commonwealth shall be employed" (''Second Treatise'', §&nbsp;143), while executive power entailed the "execution of the laws that are made, and remain in force" (''Second Treatise'', §&nbsp;144). Locke further distinguished federative power, which entailed "the power of war and peace, leagues and alliances, and all transactions with all persons and communities without [outside] the commonwealth" (''Second Treatise'', §&nbsp;145), or what is now known as [[foreign policy]]. Locke distinguishes between separate powers but not discretely separate institutions, and notes that one body or person can share in two or more of the powers.<ref>{{Cite book |last=Tuckness |first=Alex |title=Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law |publisher=Princeton University Press |year=2002 |isbn=0691095043 |page=133 |chapter=Institutional Roles, Legislative View |chapter-url=https://books.google.com/books?id=i-YA3RtI5boC&pg=PA133}}</ref> For instance, Locke noted that while the executive and federative powers are different, they are often combined in a single institution (''Second Treatise'', §&nbsp;148).

Locke believed that the legislative power was supreme over the executive and federative powers, which are subordinate.<ref>Tuckness, ''Locke and the Legislative Point of View: Toleration, Contested Principles, and the Law'', at p. 126</ref> Locke reasoned that the legislative was supreme because it has law-giving authority; "[F]or what can give laws to another, must need to be superior to him" (''Second Treatise'', §&nbsp;150). According to Locke, legislative power derives its authority from the people, who have the right to make and unmake the legislature. He argues that once people consent to be governed by laws, only those representatives they have chosen can create laws on their behalf, and they are bound solely by laws enacted by these representatives.<ref>{{Cite book |last=Locke |first=John |url=https://books.google.com/books?id=K1UBAAAAYAAJ&pg=PA215 |title=Two Treatises of Government |publisher=C. and J. Rivington |year=1824 |publication-date=1824 |page=215 |author-link=John Locke}}</ref>

Locke maintained that there are restrictions on the legislative power. Locke says that the legislature cannot govern arbitrarily, cannot levy taxes, or confiscate property without the [[consent of the governed]] (cf. "[[No taxation without representation]]"), and cannot transfer its law-making powers to another body, known as the [[nondelegation doctrine]] (''Second Treatise'', §&nbsp;142).