The use of prerogative powers under the direction of the executive is a contentious subject that has been long faced by both historical and contemporary political theorists. Allowing for the exercise of extra-legal powers set within John Locke’s Second Treatise of Government’s (1689) account of political authority, Lockean prerogative theory aims to set forward the boundaries for the scope of prerogative and the ability for the successful and appropriate application of such powers during contingency and necessity. Locke’s description of prerogative is embedded in an account of political legitimacy according to the separation of powers doctrine; the legislature in a parliamentary system is considered an independent and coequal branch of government along with the executive. Despite this however, one may construe a significant power imbalance between the single-agent executive and the legislative, as a result of the large scope for prerogative imbued upon the executive which may go unchecked.
John Locke’s theory and understanding of the intricate relationship between executive powers relative to that of the legislature are critical to his theory regarding the scope of administrative prerogative, specifically concerning the complex politics of resistance. John Locke describes prerogative as the ‘power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it’; therefore stating that the executive is capable of taking actions that lie beyond the given legal framework of the constitution or written laws, in the case that their actions may advance the common good of the people, and of society as a whole.
Ensuring their use for the advancement of the common good of the people and the understanding that prerogative powers are not imbued as a natural right, Locke emphasises that these powers are accompanied by the right to resist unlawful government by the people. It is for this reason that for many theorists, Locke is viewed more critically as the ‘origin of our contemporary tangle of lawless emergency governance’.
Locke’s theory allows for governments, and executive bodies to step outside of the law in order to deal with public concern or emergency; “where the legislative and executive power are in distinct hands, (as they are in all moderated monarchies, and well-framed governments) there the good of the society requires that several things should be left to the discretion of him that has the executive power”; therefore one may show an understanding of prerogative as a liminal concept: occupying an “in-between” space for the legislature and the executive, it is this liminality that elucidates prerogative’s resilience. These tensions or ambiguities structure contemporary discussions of prerogative and, similarly primary literature focusing on emergency powers more broadly.
Despite the emphasis placed on the executive as the primary body to carry out the motive principle of the given prerogative, one may argue in concordance with Lockean theory that the scope for such prerogative is at the behest of the infrastructure of the legislature, thus allowing for the body to play a key regulatory role. Henceforth, it must be taken into consideration that Locke refrains from calling prerogative executive power, rather Locke explicitly makes prerogative into a right of nature.
In spite of Locke’s emphasis on the scope of prerogative right under an executive body, it may be said that such power is not an inherent right, therefore allowing the deliberative assemblies to close in on executive individuals through the use of authority to make laws for a political entity through the use of primary legislation. In this way the balance of power between the two branches of government allows one to maintain Locke’s theory, in contempt with the belief that such a system would endowing the executive with too much power relative to the legislature.
However, it is critical that we consider the basis for Locke’s literature, as set in its given historical context; therefore in order to critically examine and thoroughly interpret Locke’s assessment of the scope of executive prerogative, it is necessary to first understand the context of John Locke’s work as influenced by his political surroundings. Set in the context of mid to late-16th century British politics, Locke’s work is largely influenced by the political landscape of the English Civil Wars, and the later struggle of the monarchy during the Exclusion Crisis followed by the ascension of William of Orange to the throne.
It is in this setting that Locke’s primary philosophy is centred around the understanding that citizens are living under in a state governed by the ‘rule of law’; principally free from the arbitrary power of any individual. However, this theory was contentious in the circumstances surrounding the Exclusion Crisis, where the potential for tyrannous actions was greatly feared, under both James II and later under William III; the need for the justification of the regulated use of prerogative under the executive was critical and thus is part of the foundation for Locke’s work.
However, there is a constitutive indeterminacy concerning the legal place of prerogative power, and that indeterminacy is resolved not by conceptual analysis but by popular retroactive judgment. In this way, it may be considered that one cannot acknowledge the legitimacy of extralegal action without weakening the conviction that legitimate action must accord with the law. Lockean prerogative is deftly based upon the ideology the such powers are only employed when the use of prerogative can be clearly defined.
It is with this understanding that Locke sets forward the boundaries for reasonable use of such powers, and furthermore “if there comes to be a question between the executive power and the people… the tendency of the exercise of such prerogative to the good or hurt of the people, will easily decide that question”.
This Lockean theory arguably allows for the emergence of a political vacuum where necessity for the use of executive prerogative as suspending law but not creating new law, or necessity as excusing illegal conduct without rendering it legal, or suspending law, may allow for the exploitation of such a political gap by the executive without the adjudication of the legislature. In this way, one cannot acknowledge the legitimacy of extralegal action without weakening the conviction that legitimate action must accord with the law; by imbuing such authority to the executive, it may call into question the natural and authoritative law as set into place by the representatives of the legislature, thus undermining their jurisdiction over the regulation of the scope of prerogative.
Furthermore, Locke’s prerogative theory is largely dependent upon the the legislature as representative of the people, and wider society as elected officials. The enforcement of both natural laws and the executive are, according the Lockean theory, dependent upon the support of the common good; “Such consent is expressed not only through voluntary compliance with a rule, but also through its persistent recognition as authoritative coupled with consistent efforts to adjudicate violations and coerce compliance.”
Thus, it is critical that governments are charged by the consent of the individual, in order for the just execution of such prerogative powers at the hand of the executive; “i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them”. In this way, “the true basis of any “law,” whether constitutional or international, appears to be relatively universal acceptance of—or consent to—a rule within a relevant community.”
It may however be considered that by endowing the executive with such scope regarding the use of prerogative that a state of tyranny may emerge as these powers become unchecked and thus exploited. This may occur situationally where it becomes difficult to distinguish between legitimate use of prerogative and tyranny; moreover alluring “the exercise of power beyond right”. It is in this case, Locke states, that dispute may emerge between the executive and the legislature; rule by legislation and rule by prerogative each preserve the political community and reflect its foundation out of the state of nature. Therefore, one may argue that therefore, the executive and the legislature do not easily coexist in the constitution, furthermore providing no means to judge the rightful use of prerogative.
Others may consider Locke’s power to act outside of normal law as entirely extra- constitutional—its foundation is in natural law, prior to positive law—a natural power. In this way, prerogative is not a grant of the people to the executive in the social contract, embedded in a constitutional structure, but a natural power that persists in civil society.
Therefore one may contend that, in effect that only a countervailing natural force can restrain extralegal power; in this way the manifestation of this force may not be under the authority of the legislative as the representation of the people. A number of counteracting forces may prevent such a body from fully defining such uses of prerogative in order to assert its use beyond, or without the rule of normative law. The powers of the prerogative under the executive are only at balance when the use of prerogative can be clearly defined; thus significantly limiting the scope of power of the legislative in respect to that of the executive.
It is true that Locke’s work is still highly relevant today, and plays a key role in understanding the modern use of prerogative powers at the behest of the executive; Lockean prerogative theory is the basis of a large amount of contemporary scholarship and one may appreciate the echoes of these constitutive ambiguities in the contemporary theory and obdurate practice of emergency powers. There are a number of key theorists regarding this approach to the assessment of the use of prerogative by the executive, allowing an expansive insight into the practice of Lockean theory in modern society.
Citing Locke directly, American political scientist Jack Goldsmith discusses the mobilisation of Lockean theory during post 9-11 contemporary policy debate during the Bush administration of the early 21st century. Such declarations of crisis powers also operate in the ambiguous space between the legal and the extra-legal, and were central to most of the subsequent emergent contemporary debate and literature on the ‘legality’ of extra-legal powers.
In conclusion, although Locke makes an effort in order to charge the legislature with some degree of authority over that of the executive upon the practice and enforcement of prerogative powers, the extent to which this theory provides and equal share in the scope of
power between such bodies is widely contested. Within the boundaries that Locke sets for the use of executive prerogative, the extent that Locke’s model provides exacting requirement of single-agent executives who act in the contrary or absence of the letter of the
law leaves such a gap for tyrannous actions in the event of the emergence of a power vacuum where normative law does not hold authority. Therefore, although this theory is a useful lens through which to view the dilemmas and debates of contemporary crisis governance, Locke’s theory of prerogative is not a solution to the concerns or critiques of prerogative powers, namely the resulting imbalance of power between the executive and the legislative.
28.2.2019