Locke on King's Prerogative

Pasquino, Pasquale

doi:10.1177/0090591798026002003

Cited by 54 publications

(19 citation statements)

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“…Prerogative is a power that exists beyond written law, yet it is constrained by constitutional authorization. It is in this sense that Pasquino (1998, 199) can assert that Locke provides us with “a systematic constitutional theory of extralegal power.” In addition, Ward (2005, 721) can argue that “executive prerogatives is a potentially enormous extra‐legal power, but it is not in the most crucial sense extra‐constitutional.”…”

Section: Locke and The Limits Of Legalismmentioning

confidence: 98%

“…He wants to mitigate the danger of tyranny by promoting and defending an ultimately contingent constitutional order. Civil government does not provide a final solution to the epistemological difficulties of the state of nature, only a more convenient way to organize tentative and temporary responses to that problem (Pasquino 1998, 204).…”

Section: Locke and The Limits Of Legalismmentioning

confidence: 99%

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Emergency Judgment: Carl Schmitt, John Locke, and the Paradox of Prerogative

Casson

2008

Politics & Policy

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Faced with an unsettling expansion of executive emergency power in the United States, scholars have turned to the thought of Carl Schmitt to shed light on constitutional liberalism. Yet the resources for responding to Schmitt can be found in the very tradition that he urges his readers to overcome. Locke recognized what many liberal thinkers since have been hesitant to admit. Fixed laws can help restrain prerogative to a certain extent but cannot transform the irrational and unpredictable nature of political life nor eliminate the discretionary power necessary to respond to it. Consequently, the most important and most effective restraint on executive discretionary power is not legal but political. Both the judgment of the executive and the judgment of the people are essential extralegal elements of the constitutional order.

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Section: Locke and The Limits Of Legalismmentioning

confidence: 98%

Section: Locke and The Limits Of Legalismmentioning

confidence: 99%

Emergency Judgment: Carl Schmitt, John Locke, and the Paradox of Prerogative

Casson

2008

Politics & Policy

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“…For an incisive treatment of Locke's prerogative, see Mansfield 1989, 181-211. See also Pasquino 1998;Fatovic 2004b. .…”

Section: Notesmentioning

confidence: 99%

Lincoln's Example: Executive Power and the Survival of Constitutionalism

Kleinerman¹

2005

PPS

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In the wake of the Bush administration's use of executive power since 9/11, Abraham Lincoln's executive actions during the Civil War have received more attention than usual. Typically associated with the idea that constitutions should recede in favor of the rule of one during crisis situations, Lincoln's actions have been used on one side as the implicit and even explicit basis of presidential claims to increased power and on the other side as the example par excellence of what presidents should not do. Taking issue with this conventional interpretation and continuing the more recent scholarly recovery of Lincoln's profound concern for constitutionalism, I explicate the principles that guided Lincoln's use of executive power during the Civil War. By drawing out the importance of political necessity as the basis for "prerogative" over and against both popular approval and unlimited constitutional powers, I show how this principle also provides an alternative perspective and even an antidote to the current scholarly debate concerning whether constitutions are better preserved by "Jeffersonian" or "Hamiltonian" prerogative. Lincoln's example also shows us that we should not legalize, regularize, or institutionalize those powers that may be necessary to avert a crisis. Perhaps most importantly, Lincoln's statesmanship teaches us that constitutions can moderate and limit discretionary executive power only if the people learn an attachment to their Constitution that does not come naturally to them.

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“…Despite its apparent inconsistency with the rule of law, Lockean prerogative works toward many of the same ends as the rule of law, but through radically different means. Prerogative is required to deal with multifarious emergencies "which the Law can by no means provide for" (Locke 1988, II, 159;Pasquino 1998). It serves society's more basic commitment to the substantive principles and ends prescribed by the laws of nature, particularly the right-and correlative dutyto individual and collective self-preservation (Simmons 5 Despite his reputation as the premier proponent of Parliamentary supremacy, Blackstone often preferred prerogative to legislative action because it is a temporary expedient that effectively addresses political "inconveniences" without introducing permanent structural changes.…”

Section: Theories Of Prerogative Before the Constitutionmentioning

confidence: 99%

Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives

Fatovic

2004

American J Political Sci

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CollegeScholars, the courts, and the public have been ambivalent about prerogative, the power of presidents to take extraordinary actions without explicit legal authorization in emergencies, because it seems to defy core principles of liberal constitutionalism. This article examines the relation between prerogative and liberal constitutionalism by comparing the approaches of two Founders with different conceptions of executive power, Jefferson and Hamilton. Although they both endorsed a Lockean conception of prerogative that makes it possible to secure vital substantive ends that might be imperiled by strict adherence to ordinary legal forms in an emergency, they disagreed over the constitutionality of prerogative. Whereas Hamilton located the authority for prerogative within the implied powers of the Constitution, Jefferson expected presidents to admit wrongdoing and seek post-hoc approval from the public, a difference with important implications for both democracy and constitutional practice that can be traced back to ambiguities in Locke's theory of prerogative.

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Locke on King's Prerogative

Cited by 54 publications

References 0 publications

Emergency Judgment: Carl Schmitt, John Locke, and the Paradox of Prerogative

Emergency Judgment: Carl Schmitt, John Locke, and the Paradox of Prerogative

Lincoln's Example: Executive Power and the Survival of Constitutionalism

Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives

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