Does Locke's argument on Prerogative fatally undermine his case for resisting tyranny?

Locke’s argument for Prerogative “the power to act according to discretion for the public good, without the prescription of the law”[1], does not fatally undermine his case for resisting tyrannical governments, although it challenges the extent to which rulers should be allowed to have such powers. There are a few main reasons for that, which will be looked at. This essay will first look at the different descriptions Locke has for tyranny and prerogative and how they do not conflict, evaluating all the challenges that might appear. It will later look at the aims of these two different actions that could be brought about by the executive, and again, how these two do not conflict. This will be followed by assessing the main challenge to this argument, which is how can the people be sure that the executive will not turn tyrannical and how to prevent that. Finally, it looks at the importance of the question in today’s world, and the impact the prerogative powers different executive branches of government have around the world have impacted their rule.

Locke sees prerogative not as a way for the executive to override the legislative for their own gain but for the common good[2], thus not being tyrannical. He also states that this should only happen when the law provides “no direction”[3] and until the legislative branch of government can assemble to come up with legislation regarding the issue in question[4]. This shows how the prerogative powers the executive power enjoys are not a way for rulers to break the law at their own discretion.

Nevertheless, this argument is limited by Locke’s famous “wherever law ends, tyranny begins”[5], as going outside the law is what prerogative powers allow the executive to do. However, this famous quote is followed by an explanation of when tyranny happens, which can comfortably sit together with the prerogative argument.

On the one hand, Locke considers tyranny to be “the exercise of power beyond right, which nobody can have a right to”[6]. On the other hand, he argues that the executive branch of government has a right to make use of the force in his hands where the law gives no direction[7]. Therefore, the executive, when acting outside the law, not for their own pleasure but because the law does not provide guidance[8], is not being tyrannical as it is within their rights.

However, one could argue that Locke does undermine the case of resisting tyrannical governments as on chapter XVIII he states that whosoever in authority exceeds his power given by the law, acts without authority, and thus can be opposed by anyone who feels threatened[9] by their actions. Because the executive, when making use of their prerogative power, is acting outside the power given to him by the law, can be resisted and does not have to be obeyed. Nevertheless, the prerogative powers Locke gives the executive are not meant to be used to act outside of the law but to act when the law does not provide guidance[10].

Thus, it is clear that Chapter XIV does not undermine his argument for resisting tyrannical governments as he clearly identifies and explains where both Prerogative powers and tyranny sit in relation to the law, and they do not conflict with each other.

The Prerogative argument doesn’t undermine resisting tyrannical governments as they both have different aims.

Locke believes, as he states in Chapter XIV, that Prerogative powers should be used when there is no time for the legislative to come up with laws and for the good of the community[11]. He also says that someone is a tyrant when he uses his power “for his own private, separate advantage”. This shows how, although it might seem that prerogative powers and tyranny are very close to each other, because the aim of them is so radically different, the arguments Locke uses in chapter 14 don’t undermine those for resisting tyrannical governments.

Nevertheless, it could be said that although the executive might use the prerogative powers for the good of the community, it could later use those powers for himself, thus becoming a tyrant. Locke himself tackles this issue at the end of Chapter XVIII. He admits that this could be the case but then follows on to suggest that if that is indeed the case, the people have a right to overthrow the government[12].

Thus, Chapter XIV doesn’t fatally undermine his case for resisting tyrannical governments, although it does give an easier path for governments to become tyrannical.

Locke argues, in one of his most famous passages, that because the people will not know that they are governed by a tyrant until they are “perfectly under it”[13], they have a right to get out of it and also, to prevent it[14]. As it has already been mentioned above, he admits that prerogative powers could, if abused, turn a ruler into a tyrant[15]. This puts the whole Prerogative argument at stake. If the people have a right to prevent tyrannical rule, and prerogative powers could lead to tyrannical governments, it implies that the people have a right to oppose any sort of prerogative actions by the executive as a prevention of tyranny. This argument is supported by Locke’s chapter “Of the State of War”, where he argues that it is lawful for a man to kill a thief, not because of his direct actions, him wanting to take your money, but rather because if he is willing to put you under his power, without your consent, and he could take everything else from you, including your life[16]. Therefore, it is lawful to kill him not for what he is done, but for what he could do. If we apply the same rule to the executive, when he uses his prerogative powers, the people should lawfully be allowed to get rid of him, not for him going outside the law, as we have already stablished that prerogative powers are used when there is no existing law, but because of what he could do in the future with those powers.

The answer to the challenge this poses to my argument is a complicated one, which rests on trust. The people must trust the executive with the prerogative powers. When this trust is lost, and the people fear the beginning of a tyrannical rule, they have the right to replace the executive. For this trust to hold, the people must be sure that the freedom they are giving up when the executive uses prerogative power, is for their benefit, and not the sole, individual benefit of the ruler. Locke mentions this already at the beginning when talking about slavery. He believes that humans should not be under any power but that which is stablish, by consent and by trust put in it by the people[17].

Nevertheless, this does not answer the question on how people should get rid of the executive when the ruler has already turned tyrannical, as Locke himself admits that once the non-tyrannical government has been dissolved, it is too late and “the evil is past cure”[18].

He finds the answer to this issue by making the people vigilant of their ruler’s actions[19]. He believes that the people should carefully observe the path the executive takes, and when it is clear that is going towards tyranny and it is not acting for the good of the community, the people have the right to replace it[20].

It could be argued that this clashes with his idea that the people only know they are governed by tyrants once they are completely under it[21]. Nevertheless, this is not the case, as in page 197, Locke says what the situation is, that people do not realise that they are governed by tyrants until they are completely under it, and in page 199, he suggests a way for people to be saved, which is to regularly check on the ruler’s behaviour. Therefore, these two ideas do not clash as one is a description and the other is a recommendation on how to improve the situation.

To start wrapping it off, the conflict between prerogative and tyrannical government, and the trust the people have on their rulers, is of much importance in any scenario, but especially now a days.

Around a year ago, when the COVID-19 pandemic started to spread across the world, many governments, such as the Spanish one, used their prerogative powers to override the legislative bodies and implement policies including lockdowns, social restrictions etc. This was for the good of the community, so that less people would suffer and/or die, because as Locke said the end of government is the preservation of all[22]. Had the governments no had these powers, Parliaments would have had to gather, discuss and approve legislation regarding the health crisis. This would have costed many extra lives, which through direct executive action would have been and were saved.

Moreover, had the people not trusted their executive branches of government and followed the advice they gave to stop the spread, many more lives would have been lost.

Nevertheless, it is fair to say that the prerogative powers governments have, do not always result in actions which the majority of the population would agree.

Such is the case for when the then President of the United States passed emergency legislation to secure funding to increase the size of the physical barrier between the United States and Mexico, without the approval of Congress. Donald Trump became president without a majority of the votes and Congress, which is more representative of the American population than the Electoral College, did not support him either. Therefore, the prerogative powers did not lead to tyranny as such, but they were used for policies which did not have the backing of the majority of the population.

This shows how prerogative powers have to be kept under control, with checks and balances, as Locke suggested in Chapter XIV by saying that the people could limit the prerogative of rulers through “positive laws”[23].

To conclude, although the argument for Prerogative does not fatally undermine Locke’s case for resisting tyrannical government, it does challenge the extent to which the people should allow the executive to have such powers. There is a clear difference between tyranny and prerogative, one is the exercise outside of the law for the individual gain of the rule while the latter is acting outside of the law, when there’s no law, for the good of the community. Nevertheless, this poses the issue of a ruler acting outside the law for the good of the community and then change course and only looking for himself, when this is the case, the people have the right to not obey and replace the executive, as outside the law there is no authority. It is therefore clear that the power the ruler has over the people, is based on the trust they have on him not abusing his powers, when this is broken, the ruler loses all legitimacy and authority, and the people have a right to place him. However, this poses the issue of people realising the trust has been broken when it is too late for the situation to be corrected. To solve this, Locke suggests that the people should be careful about the rule’s actions. This debate is key in political philosophy but also in day-to-day politics, as I have said above. That is the reason why, although may executive governments have prerogative powers, they are also under a lot of scrutiny from the legislature bodies, through PM questions in the UK parliament or “control sessions” in other national assemblies.

[1] Locke, Second Treatise of Government, p. 172 [2] Locke, Second Treatise of Government, p. 171 [3] Locke, Second Treatise of Government, p. 171 [4] Locke, Second Treatise of Government, p. 171 [5] Locke, Second Treatise of Government, p. 189 [6] Locke, Second Treatise of Government, p. 188 [7] Locke, Second Treatise of Government, p. 171 [8] Locke, Second Treatise of Government, p. 171 [9] Locke, Second Treatise of Government, p. 189 [10] Locke, Second Treatise of Government, p. 171 [11] Locke, Second Treatise of Government, p. 171 [12] Locke, Second Treatise of Government, p. 193 [13] Locke, Second Treatise of Government, p. 197 [14] Locke, Second Treatise of Government, p. 197 [15] Locke, Second Treatise of Government, p. 193 [16] Locke, Second Treatise of Government, p. 108 [17] Locke, Second Treatise of Government, p. 110 [18] Locke, Second Treatise of Government, p. 197 [19] Locke, Second Treatise of Government, p. 199 [20] Locke, Second Treatise of Government, p. 199 [21] Locke, Second Treatise of Government, p. 197 [22] Locke, Second Treatise of Government, p. 172 [23] Locke, Second Treatise of Government, p. 173

Bibliography:

Locke, J. ‘The Second Treatise: An Essay Concerning the True Original, Extent, and End of Civil Government’ in Two Treatises of Government and A Letter Concerning Toleration, ed. I. Shapiro (Yale University Press, 2003)

Dunn, John (2000) ‘Trust and Political Agency’, in Gambetta, Diego (ed.) Trust: Making and Breaking Cooperative Relations, electronic edition, Department of Sociology, University of Oxford, chapter 5, pp. 73-93, https://www.sociology.ox.ac.uk/papers/dunn73-93.pdf

Arnhart, L. “‘The God-Like Prince’: John Locke Executive Prerogative, and the American Presidency.” Presidential Studies Quarterly, vol. 9, no. 2, 1979, pp. 121–130.

Corbett, Ross J. “The Extraconstitutionality of Lockean Prerogative.” The Review of Politics, vol. 68, no. 3, 2006, pp. 428–448.

Jenkins, David. "The Lockean Constitution: Separation of Powers and the Limits of Prerogative." McGill Law Journal / Revue de droit de McGill, volume 56, no. 3, 2011, p. 543–589.

Nacol, EC. The Risks of Political Authority: Trust, Knowledge and Political Agency in Locke’s Second Treatise. Political Studies. 2011; vol 59 pp. 580-595.

Fatovic, C. “CONSTITUTIONALISM AND CONTINGENCY: LOCKE'S THEORY OF PREROGATIVE.” History of Political Thought, vol. 25, no. 2, 2004, pp. 276–297.