In a commonwealth where the legislative and executive powers are separate from each other, the executive power is given several things. Since the legislature cannot be in session continuously and is unable to foresee everything that may befall the commonwealth, the executive is given the ability to make decisions for the good of society according to his discretion if need arises. In addition to making decisions in the absence of the legislature or relevant laws, the executive can also circumvent the laws if he needs to. Locke’s example is tearing down a house that is next to a house that is burning, something that would not be allowed in any other circumstances but is done here to prevent the entire city from burning down.
This power to use discretion to act for the public good, even when the law does not exist or one has to go against the law, is called prerogative. It is necessary for several reasons: legislatures are not always in session and are sometimes too slow to act; laws cannot foresee everything and accidents may occur; and some laws may do more harm than good. Thus, the executive can exercise his power of prerogative and act outside of the law.
The people rarely question this use of prerogative because it is supposed to be used for the public good only. When the commonwealth is new, it may resemble a family with the governor acting as a father. His power is usually his prerogative at this time, and standing laws are few. However, when the governor begins to use this prerogative for his own private ends, the people can require it to be turned into established laws. This cannot be seen as the people encroaching upon a governor’s prerogative because that power never actually belonged to the governor by right; it should be seen as the people correcting a governor who was using something they placed in his hands for ill. The governor’s interests must be the same as those of his people. It is illogical to assume that men left the state of nature to enter into a commonwealth where the ruler looks upon them as inferior and uses them for his own purposes.
Locke offers another description of prerogative, writing that it is nothing more than the people allowing their rulers to do certain things that the law does not account for or even things that go against the laws if they are for the public good. In fact, a good ruler can have a large degree of prerogative without violating the people’s natural rights. The history of England provides examples of good princes who retained a large degree of prerogative because their usage of this power was for nothing else but the preservation of the public. Their continual use of prerogative was not dangerous because they judged rightly.
Sometimes when wise rulers who exercised a large amount of prerogative were succeeded by new rulers, those new rulers continued the practices of their predecessors but did so in a way that harmed, not helped, their subjects. The people would break into disorder to try to do away with those laws that came from prerogative and never should have been laws in the first place. Since the people should not seek to limit an executive’s power of prerogative when they are using it for good, the executive should not transgress the limitations of prerogative to do the people harm.
Locke concludes this chapter with two more points about prerogative. The first is that calling the legislature into session is an example of the executive’s prerogative, but it should only be done with the public good in mind. The second is an answer to the question that many have: who shall judge whether the power of prerogative is used correctly? Unfortunately, there is no judge on earth and men can only appeal to heaven when the executive and legislative use their power to enslave or destroy their people. God intends for man to preserve himself and he cannot take away his own life or allow another to destroy it. Perpetual disorder on the part of a commonwealth is unwise, but when the majority feels weary of the oppression, they can try to have the power of their government amended. Thus, in extraordinary cases, an attempt to dissolve and reform the government when the legislative and/or executive powers overextend themselves will be judged by God alone.
Chapter XV is a summary of the three types of power Locke has discussed in the Second Treatise. The first of these is parental (or paternal; see chapter VI) power, which is the power parents have over their children to nourish and educate them until they reach a state of maturity and have the knowledge to exercise their own free will. It does not ever extend to their life, and does not extend to their property when they are of age. Children are obligated to honor and respect their parents but are not under their absolute dominion. Parental power is a natural government, but is not political.
The second type of power is political power, which is defined as the power men have in the state of nature that is given up to the authority of a commonwealth. This power is only in existence to preserve men’s property and punish transgressors of the law. This power is not arbitrary or absolute and only comes into existence with a compact between the ruler and the governed. Consent is necessary for political power.
The third type of power is despotical power, defined as absolute and arbitrary power exercised by one man over another. It does not come from nature and cannot be conveyed by a compact. It can only exist by forfeiture, whereby one man puts himself into a state of war with another and is then enslaved. When a tyrant uses force like the beasts of the earth to place others under his dominion, he has created a state of war. Captives taken in a just and lawful war are the only acceptable persons who can be ruled by a despot, and any time a compact is devised between them this enslavement ceases to exist.
In summation, parental power is given by nature, political power is bestowed by voluntary agreement, and despotical power is exercised by forfeiture. Parental power falls short of political power and despotical power far exceeds political power. Parental power only manages a child’s property while he is not of age, political power preserves men’s property, and despotical power does not allow men to have property at all.
Locke’s explanation of prerogative provides fodder for an absorbing discussion. Prerogative is “nothing but the power of doing public good without a rule” (§166). While 17th century political philosophers like Robert Filmer advocated the divine right of kings, Locke claimed that a prince’s ability to act outside the law was not something divinely bestowed upon him but was invested in him by the consent of the people and only liable to be used for the public good. A wise prince can actually exercise a great deal of prerogative without violating the rights of the people. One who does use prerogative in a fashion outside of the quest for the public good is creating a state of war between him and his subjects.
Locke explained in chapter III that in extreme cases of a state of war, men’s last recourse was to appeal to heaven. He reiterates that point in this chapter when discussing a ruler who exercises too much prerogative and is no longer attempting to secure the public good. Men have no earthly judge to assist them with their complaints and thus can only turn to God to deliver judgment. Locke thoroughly takes up the idea of dissolving a tyrannical government in later chapters, but he mentions it here as well. He writes that when “the majority feel [the inconveniency], and are weary of it, and find a necessity to have it amended” (§168) they can use force to dissolve their government and God will judge whether they were justified in doing so. This is another example of the Christian theology that infuses Locke’s political philosophy.
There is a lot of excellent critical writing on prerogative power. One scholar, Ross J. Corbett, takes up the topic of whether or not prerogative is constitutional. He begins his discussion by noting how important this question of prerogative is in 21st century America following the terrorist attacks of September 11, 2001; he notes that the American government under President Bush took many extraordinary steps that were outside the bounds of established law in the stated intention of protecting the American people from further violence. He sees the Bush administration’s circumvention of the law as pure presidential prerogative, and considers a deeper look at Locke very relevant for the modern day.
He then discusses how different theorists have interpreted prerogative. Some argue that Locke meant for it to be constitutionally provided, that “the executive has been previously authorized by the laws to step outside of the laws. Any deviation from the usual legal order would be authoritatively overseen by the legislature, by the cabinet, or by some other political body: a well-made constitution should be equal to any exigency, even if strong leadership is an additional requirement.” Another interpretation argues the opposite, that “nothing within the logic of prerogative compels the prince to perform or cease an action at the command of some other institution of government.” Only the people are to keep the prince from overreaching with the power of prerogative. Both of these interpretations can be supported.
Benjamin Kleinerman put forth another compelling insight into Locke and his theory of prerogative. He begins his article by explaining that while Locke clearly understood that the legislature’s established, standing laws would not be sufficient or clairvoyant enough to deal with the future problems that the commonwealth would face, scholars are wrong in their conclusion that Locke was too optimistic about executive power and did not fully comprehend its dangers. Kleinerman argues that Locke was actually much more pessimistic about the limitations of legislative constitutionalism (his term for the government Locke espoused). He believes the pessimism springs from Locke’s “recognition that the people, although they have advanced beyond their simplistic trust in kingly ‘father-figures’ who would look out for their good, still remain far too passive for the vigilance essential to umpire’ well the necessity of executive action outside the laws.” The passivity may also come from the fact that the people are generally content to give the executive far-reaching powers as long as they “do not interfere with their immediate interests.” The tension between Locke’s optimism and pragmatism concerning human nature is found throughout the Second Treatise and is a worthy topic to consider here.