In times of dire emergency, societies have long innovated unique political structures to confront existential crises that jeopardize their existence. From the Roman Republic’s convention of nominating amagistratus extraordinariuswith unlimited powers in times of emergency,1 to the United States’ president Lyndon B. Johnson’s decision to escalate United States military involvement in Vietnam2, the methods for ostensibly ensuring the safety and continuity of a state in times of emergency are often as diverse as they are drastic. One of the most influential theoretical endeavors to establish how a society ought to organize on dire occasions is the Lockean notion of executive prerogative. Although it may be conceded that the notion of executive prerogative as John Locke conceived it is likely an effective means of addressing crises, the theory is largely inappropriate for application in the United States. This unsuitability is a consequence of its unbound potential for abuse, the weakness of the proposed check on prerogative power forwarded by Locke when considered in a modern context, and the tension of prerogative theory with other more valuable and foundational political ideas such as social contract and natural rights borrowed from Locke.
Locke writes in his Second Treatise of Government that prerogative is “power to act according to discretion, for the public good, without the support of the law and sometimes even against it.3” Locke describes prerogative as a necessary aspect of govern- ment that includes a legislature,4 but which also requires an agent capable of taking decisive action for the benefit of the public good when decisive action is required. In accomplishing this end, Locke asserts that an executive must necessarily act, on occasion, outside the law, and thus, outside the rule of law, which will be defined as Lon Fuller describes it, having or at least striving for qualities of generality, promulgation, consistency, and prospective intention.5 In establishing what the appropriate societal recourse should be if an executive abuses power in a manner that displeases the people, Locke advocates the method of revolution or open rebellion as a legitimate means for the people to oppose a sovereign and express their desire for a new government or head of state. Finally, it must be recognized that Locke’s theory of prerogative falls within the more fundamental background of his social contract theory. This describes the relationship between citizens and their government as being one of social contract, by which individuals agree to sacrifice a limited portion of their liberties for the attainment of greater security through association with a state. The question of whether or not prerogative should then be implemented into U.S. politics as in stands today will be approached with an appreciation of the holistic theoretical and societal context of Locke’s principles in order to properly analyze prerogative in its entirety as a potential tool for efficient and just governance.6
Locke’s theory of prerogative should it be integrated into the U.S. government, though the notion seems to seek to accommodate the need for decisive action on the part of the executive, creates inherent danger by not providing an explicit, normative, upward limit as to when executive prerogative might become unjustified or immoral. By surrendering to the simplistic notion that untold threats require untold powers granted to the executive in response, Locke inadvertently opens potential for abuse far in excess of the what the consequences of the dangers warranting prerogative themselves might cause. Locke ideally states that the measures of the prerogative should seek to work towards the rather vague “good of the people,7” but does not provide a mechanism to ensure that the actual actions of the executive correspond to the political ideal that he forwards. This omission opens the door to a state of affairs in which not only potential executive abuse but the continuum of potential unforeseen consequences caused by unmitigated and shortsighted enforcement of executive powers are virtually unlimited and not subject to any systematic legal measures restricting or even necessarily guiding the power of the executive in times of crisis. The warrant for the claim that this abuse is not only possible, but likely, is derived from relatively modern observed historical examples in which executives with prerogative-like powers utilize their authority to accomplish a short-sighted goal not to the ultimate benefit of the people, but to their ultimate harm, even if such net harm was not their intention. One oft-cited historical example in the United States is president Franklin Delano Roosevelt’s executive order to intern over one hundred thousand Japanese Americans into internment camps to address what he believed was a threat to national security.8 Such examples highlight that the crux of this problem with unchecked prerogative may stem from the fact that any individual making decisive and sweeping political action, though they may be effective in resolving crises do not seem to have access to perfect information regarding the consequences of their actions, and it is this limitation on the foresight of individuals that a collective legal framework could successfully hedge against as an alternative to Locke’s pure executive prerogative in times of crisis.
1 Hornblower, Simon, and Antony Spawforth. "The Oxford Companion to Classical Civilization." 1998, 219. doi:10.1093/acref/9780198601654.001.0001.
2 Dallek, Robert. "Lyndon Johnson and Vietnam: The Making of a Tragedy." Diplomatic History 20, no. 2 (1996): p. 147-62. doi:10.1111/j.1467-7709.1996.tb00620.x.
3 Locke, John. "Second Treatise." John Locke: Two Treatises of Government: p. 53. doi: 10.1017/cbo9780511810268.011
4 Locke, John. "Second Treatise." John Locke: Two Treatises of Government: p. 46. doi: 10.1017/cbo9780511810268.011
5 Fuller, Lon L. The Morality of Law. New Haven: Yale University Press, 1964.
6 Locke, John. "Second Treatise." John Locke: Two Treatises of Government: p. 22. doi: 10.1017/cbo9780511810268.011
7 Locke, John. "Second Treatise." John Locke: Two Treatises of Government: p. 53. doi: 10.1017/cbo9780511810268.011
8 "World War II Enemy Alien Control Program Overview." National Archives and Records Administration. Accessed April 19, 2016. http://www.archives.gov/research/immigration/enemy-aliensoverview.html.
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- Political Theory John Locke Executive Prerogative Executive Power Social Contract Theory Natural Rights