Victoria Trahey | To Be Alone DEPAUL UNIVERSITY 117
LOCKE’S DANGEROUS PROVISION: PREROGATIVE POWER IN THEORY AND PRACTICE Emily Hermann* Department of Political Science John Locke’s theory of liberal representative government advocates for a new civil society of political equality based on compact between the governed and the government to ultimately “preserve and enlarge freedom.” 1 The foundation of his theory is the protection of mankind’s inalienable right to life and preservation. Another necessity for Locke is eliminating the arbitrary creation of laws by paternal power, so he argues for political power that executes laws for the public good via natural law. Distinct from this model of equality and consent is Locke’s often overlooked provision for the use of prerogative power. 2 This power allows for the executive to act “according to discretion, for the public good, without the prescription of the law, and sometimes even against it.” 3 Locke contends that legislators cannot foresee all laws that will serve the common good. Hence, prerogative power was established as “the most expedient way to accomplish an end during special circumstance.” 4 Locke understood the provision for prerogative power as better than arbitrary decrees of divine right monarchs because every end of his form of government is for the good of the body politic. 5 Nevertheless, his conception of prerogative * This essay was originally written for Professor Katy Arnold’s course Contemporary Political Thought (PSC 331) during the winter quarter 2016. I also would to thank Professor Arnold for helping me to revise the paper. I would also like to thank professors Joe Mello, Ben Epstein, and Valerie Johnson for selecting the article for publication and for providing helpful feedback during the review process. 1 John Locke, Second Treatise of Government, ed. C.B. Macpherson (Cambridge: Hackett Publishing, Classic Series, 1980), 32 (section 57). 2 Pasquale Pasquino, “Locke on King’s Prerogative,” Political Theory 26, no. 2 (1998), 199. 3 Locke, 84 (section 160). 4 Arnold, Kathleen, “Domestic War: Locke’s Concept of Prerogative and Implications for U.S. Wars Today,” Polity (January 2005), 3. 5 Locke, 85 (section 163). remains open-ended and unlimited by any restrictions on when and where it could be used. Locke’s provision is problematic because it has the potential to undermine both the rule of law and mankind’s inalienable rights. In modern liberal governments, this extra-legal power has become a way for executives to use the law to justify any potentially necessary action, at home or abroad, under their own discretion in the name of national security. Centuries after Locke’s Second Treatise of Government, Hannah Arendt analyzed the unforeseeable result of Locke’s theory. The danger of prerogative came to devastating fruition when Adolf Hitler, president of the Weimar Republic, unilaterally proclaimed the Decree for the Protection of the People and State, which legally suspended the personal liberties and rights of the people protected by the Weimar Constitution for twelve years. 6 This suspension allowed the Nazis to legally expel Jews from the nation, strip them of their “right to have rights,” and to exterminate them without consequence. 7 When executives are given the power to act at their own discretion with total impunity, these states of total domination and lawlessness can be justified as a temporary necessity while simultaneously becoming the ultimate solution. Locke’s prerogative unintentionally gave Nazi totalitarianism democratic justification because he did not account for the danger of a racialized common good whose special circumstance required violent means to a genocidal end. 6 Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005), 2 (1.2). 7 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, 1986), 296. 118 CREATING KNOWLEDGE
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D E PAUL UNIVERSITY Creating Knowle
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2016 EDITOR Warren C. Schultz ART J
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86 Amy Reece Outrages on the Women
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FOREWORD Dear Students, Colleagues,
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