But It is an Emergency. Carl Schmitt, John Locke and the Paradox of Prerogative_Douglas Casson

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But is it an Emergency?

Carl Schmitt, John Locke, and the Paradox of Prerogative*

(Rough Draft. Comments Welcome!)

Prepared for the

Minnesota Theory Colloquium

1:30 PM, February 29, 2007

Lippincott Room (1314)

in the Social Sciences Building

Douglas Casson

Assistant Professor

Political Science DepartmentSt. Olaf College

Northfield, MN 55057

(507) 786-3484

[email protected]

*Acknowledgements: I would like to thank Anthony Lott (St. Olaf College), Joseph Reinert

(Colby College), and Douglas Dow (University of Texas at Dallas) for their incisive criticism of

earlier versions of this essay. The deficiencies that remain are due to my failure to follow their

advice.



Casson – Theory Colloquium 2/29/07

1

On January 15, 2008, President Bush signed a directive exempting the U.S. Navy from

environmental laws aimed at protecting whales and dolphins off the coast of Southern California.

The White House Council on Environmental Quality proposed “alternative arrangements” for the

Navy to continue sonar training missions, arguing that “emergency circumstances” prevent

normal compliance with the law. Yet on February 4, a federal judge ruled the actions of the White

House invalid, stating emphatically that “there is no emergency.” The Navy has not yet said

whether it will comply with the court ruling, appeal it, or simply ignore it ( LA Times, February 5,

2008).

Whatever the outcome of this particular conflict, the debate over emergency powers will

certainly continue. The terrorist attacks of 2001 have forced us to reconsider some fundamental

political questions: What constitutes an emergency? Who decides when it starts and when it is

over? Can a liberal democracy effectively respond to contemporary emergencies without losing

its democratic character? Lately these questions have been raised with increasing urgency, yet

they are hardly new. Concerns about the inability of liberal democracies to respond to

contemporary threats on the one hand and the emergence of an “imperial presidency” on the other

have animated political and scholarly discussions since the end of World War II (Rossiter 1949;

Schlesinger 1973). The size of government and the contemporary international context seem to

necessitate expansive discretionary power, yet that discretionary power, insofar as it is potentially

arbitrary, seems to threaten the possibility of constitutional government

Recent allegations of prisoner abuse in the executive controlled military base in

Guantanamo Bay, reports of secret interrogation centers in Eastern Europe, revelations of

domestic spying by the National Security Agency (NSA), and litigation over citizens deemed

“enemy combatants” who have been detained without a trial have reignited the debate over the

proper relationship between executive discretionary power and the rule of law. Legal scholars

have found that the widely held belief that the judiciary serves as the guarantor of the rule of law

in times of emergency has little empirical support. In fact, seen from a historical perspective,




2

judicial review of emergency powers has actually led to the opposite result. The courts have

contributed to a gradual expansion of executive power, normalizing an increasingly authoritarian

government (Fisher 1995; Gross 2003, Zuckerman 2007).

Faced with these difficulties, a number of scholars have turned to the work of Carl

Schmitt to help clarify our current predicament (Agamben 2005; Tushnet 2005; Hussain, 2003).

This is a surprising choice, given that Schmitt was one of the most controversial German thinkers

of the twentieth century, and was a harsh critic of constitutional liberalism. As a young lawyer, he

gained prominence for his assessment of the frailty of the Weimar Republic. In 1933, he joined

the National Socialist Party and was awarded an appointment as state councilor to Prussia and

editor of the prestigious publication Die deutsche Juristen-Zeitung. From his influential positions

within government and academia, he introduced legal analysis that supported Adolph Hitler’s

claim to constitutional legitimacy. In 1936, however, he broke with the Nazis and was forced to

surrender some of his political appointments. After the war, he remained isolated from the

mainstream legal community until his death in 1985.1

In recent years, however, several influential theorists have sought to reexamine Schmitt’s

legal and political legacy (In addition to those mentioned earlier, see Dyzenhaus 1998;

Dyzenhaus, 1997; McCormick 1997; Mouffe 1993). None of these scholars, it should be said,

endorse the authoritarian conclusions that led Schmitt to join the National Socialist Party. In fact,

they explicitly and repeatedly distance themselves from the most contemptible aspects of

Schmitt’s political career. Instead they turn to his legal writings in order to gain insight into his

1 Schmitt’s place in European intellectual history continues to be disputed. A few scholars have sought to

rehabilitate his reputation by minimizing his association with the National Socialists. Thus Joseph

Bendersky argues that Schmitt sought to defend the Weimer Republic and only stumbled into anassociation with the Nazi’s when his attempt at reform failed (Bendersky 1983). In a similar vein Renato

Cristi argues that Schmitt is best understood as a nineteenth century liberal with a “sincere interest in

reform of parliamentarism and not its abolition” (Cristi 1998, 15-16). Heinrich Meier has resisted this

interpretation by insisting that there is a fundamental continuity in Schmitt’s thinking from his early yearsto his endorsement of National Socialism. This continuity rests on his break with political rationalism in

favor of political theology (Meier 1998). Raphael Gross has reinforced Meier’s argument by demonstrating

that Schmitt’s support of the Nazis was not mere opportunism, but the natural consequence of

thoroughgoing anti-Semitic theological commitments (Raphael Gross 2007). For an extensive review of

this burgeoning new literature, see Caldwell 2005.




3

radical and unyielding critique of modern liberalism. They see Schmitt’s critique as a crucial

starting point for reassessing the liberal tradition as a whole.

What is this critique? Schmitt argues that proponents of liberal constitutionalism are

fundamentally deluded about the nature of law. Their assumption that all governmental action

must be limited by legal norms reveals a failure to grasp political reality. The modern state simply

cannot be contained within a particular legal order. It is not governed by right, but by the ever-

present possibility of conflict. For Schmitt, power always precedes law. Any legal order rests on a

prior political act, a moment of judgment or what Schmitt calls “pure decision.” This is most

evident in emergency situations when the norms of a legal order give way to the political act, the

act of decision. Schmitt coins the term “decisionism” to describe his view that the concrete

moment of decision is more legally significant than any abstractly valid legal order. In the

moment of decision we no longer experience the comforting consistency and clarity of ordinary

legal strictures. We recognize that the sovereign is not law itself but whoever decides on the

exception (Schmitt 2005, 5). Behind the friendly facade of constitutional government, Schmitt

argues, lurks the inescapable presence of power.

It is this insight that leads contemporary political observers such as the Italian

philosopher Giorgio Agamben to turn to Schmitt. For Agamben, the current international

response to terrorism demonstrates that “Schmitt’s dictum on sovereignty and its formulation still

makes sense” (Agamben 2005, 31).2 Agamben argues that the blatant appeal to extralegal power

in the days after the attacks tore away the liberal veils and exposed the authoritarian character that

lies concealed within every constitutional order. The state of exception, he writes, is “the

dominant paradigm of government in contemporary politics” (2). And this widespread recourse to

emergency power among modern liberal democracies is indicative of a fundamental contradiction

in liberal constitutionalism itself. For Agamben, the pervasiveness of emergency power discredits

2 Similarly, Nasser Hussain points to Schmitt’s decisionist and antinormative model of law as a more

accurate description of emergency powers under colonialism. (See especially Hussain 2003, 15-20). One

could also make the case that Schmitt's view of liberalism influences Michael Hardt and Antonio Negri’s

critique (Hardt and Negri 2000, 16, 377-78, 463-64).




4

contemporary appeals to the rule of law (87). He presents Schmitt as a clear-eyed realist who

skewers liberal pretensions and provides us with a coherent explanation of the central place of

arbitrary power in constitutional regimes that claim to be governed by legal norms. Agamben

uses Schmitt to show that the rule of law in the contemporary world is nothing other than the will

to power. The continuing and pervasive presence of the exception reveals that power and not law

is sovereign in the modern state.3

Although Agamben’s description of the history of emergency power in the United States

makes no mention of the judiciary, the fact that the courts have failed to resist the growth of

executive discretionary power reinforces his view. Since ex parte Milligan, the Supreme Court

has understood itself as the ultimate arbiter of emergency powers and the sole guardian of the

Constitution. Yet in the midst of crisis, it has interpreted war powers expansively and flexibly,

thus creating a lasting precedent that normalizes exceptional emergency powers. The way in

which the Court sought to defend civil liberties by exempting citizens from constitutional

protections in Korematsu v. United States (1944) is one of the most disturbing examples of this

type of juridical approach. Schmitt would not be surprised by those who have argued that the

courts are institutionally unable to resist the expansion of executive powers in times of war and

that expansion will persist in times of peace (Gross 2003; Zuckerman 2007).

Thus Carl Schmitt and those who have embraced his critique leave us with a stark and

unsettling choice. We can either stubbornly cling to a naïve view of constitutional rationalism,

insisting the exercise of emergency power can and should be subjected to legal regulation in all

cases, or we can acknowledge that the promise of liberal self-government is fundamentally

illusory and that emergency power is ubiquitous and absolute. We can either embrace

constitutional rationalism or Schmittian decisionism.

Yet I am convinced that this dreary choice is a false one, and the resources for answering

3 Agamben’s call at the end of his book to “halt the machine” by showing the “central fiction” of the “very

concepts of state and law” is puzzling considering his assessment of the Schmitt’s thought. It is unclear

exactly how we should “try to interrupt the working of the machine that is leading the West toward global

civil war” (87).




5

Schmitt can be found in the very tradition that he urges us to overcome. In the following paper I

seek to recover a version of liberalism that recognizes the necessity of extra-legal political action,

yet is aware of the dangers of discretionary power. I turn to John Locke in order to offer a

response to Schmitt's challenge that takes seriously his critique without surrendering to his

authoritarianism. Locke recognized what many liberal thinkers since have been hesitant to admit.

Fixed laws can help restrain prerogative to a certain extent, but they cannot transform the

irrational and unpredictable nature of political life nor eliminate the discretionary power

necessary to respond to it. This is why he insisted that “well-framed governments” include both

legal and prudential elements (ST §159). Both written law and political judgment fall within the

scope of legitimate constitutional government. Those who execute laws are called to do more

than simply apply general rules to particular cases. They are asked to use their judgment. This

power of judgment cannot be reduced to a legal power. It is a power that acts beyond and

sometimes even in conflict with law. It is extralegal, yet it is not extraconstitutional.4

For Locke the prudential power of the executive is neither arbitrary nor irresistible. It is

limited by the aim that originally constituted it – that is, it is the mitigation of the inconveniences

of the state of nature. Thus legitimate acts of prerogative are aimed at the restoration of a

predictable legal arrangement which is the very condition of civil liberty and property. If a

leader's use of extralegal prerogative undermines the legal regime instead of restores it, it is not

constitutional prerogative but tyranny. The people are called on to use their judgment and respond

appropriately. They are called on to recover the prudential power that they entrusted to

government in order to safeguard the public good. Thus for Locke both prerogative and

revolution are extralegal moments of judgment that lie at the heart of legitimate, constitutional

government.

4 I take Benjamin Kleinerman and Lee Ward to be making a similar distinction between exacting legality

and constitutional legitimacy. Benjamin A. Kleinerman, "Can the Prince Really Be Tamed? ExecutivePrerogative, Popular Apathy, and the Constitutional Frame in Locke's Second Treatise," American Political

Science Review 101, no. 2 (2007), Lee Ward, "Locke on Executive Power and Liberal Constitutionalism,"

Canadian Journal of Political Science 38, no. 3 (2005). In contrast, Ross Corbett erases this distinction by

arguing that prerogative is extralegal and therefore extraconstitutional for Locke. Ross J. Corbett, "The

Extraconstitutionality of Lockean Prerogative," Review of Politics 68, no. 3 (2006).




6

There are certainly good Lockean arguments for opposing many of the decisions of the

current U.S. administration, yet they are not simply based on whether the administration has

limited itself to applying written law. Unlike the constitutional rationalist, Locke recognizes that

legitimate rule in the midst of the unpredictability of political life extends beyond legal rules and

regulations. Yet Locke does not succumb to the decisionist alternative. The rule of law remains

the goal and, paradoxically, the limit of legitimate extralegal action.

Schmitt’s Critique of Constitutional Rationalism

Carl Schmitt looked back on the long development of liberal institutions as an attempt to

eradicate the personal. The human element in politics – that is, personal will and personal

judgment – had been effaced with the rise of a political conception that champions the rule of law

in place of the rule of men. The trend to expunge the personal, a trend that Schmitt calls

“rationalist,” focused on the lawfulness and regularity of the “great machine” of the state.

Eventually liberals came to embrace the myth that “the machine now runs by itself” and they

proceeded to define legitimacy according to that impersonal and abstract legal order (PT 48).

They reduced legitimacy to legality. The strongest formulation of this rationalist doctrine is found

in Condorcet who attributed to the executive the simple function “of making a syllogism of which

the law is the major premise, a more or less general case the minor premise, and the conclusion

the application of the law” (cited in Pasquino 1998, 198). As a true heir of Descartes, Condorcet

insists that the law can and should be transformed into an apodictic and demonstrative science.

Kant presents a similar syllogistic model, when he writes that the three powers of government

“can be likened to the three propositions in a practical operation of reason [ Syllogism]:

the major premise, which contains the law of the sovereign will, the minor premise,

which contains the command to act in accordance with the law (i.e. the principle of

subsumption under general will), and the conclusion, which contains the legal decision

(the sentence) as to the rights and wrongs of each particular case” (Kant 1977, 138).

Both Condorcet and Kant describe the executive power as absolutely determined by law. The role




7

of the executive is simply to apply legal statutes to a particular case. No judgment is necessary

because the execution of law follows necessarily from the law itself. The executive supplies the

power of command or enforcement to a law that is self-contained and wholly adequate. Schmitt

argues that Hans Kelsen, considered one of the founders of modern legal philosophy, follows

Kant when he tries to retain the clarity and rigor of this syllogistic model by distinguishing the

certainty of law from the indeterminacy of the political world. Yet these rationalists can only

sustain their view of a scientifically unassailable legal system by obfuscation or suppression.

They must banish the problem of the exception (see PT 16-35). For proponents of modern

constitutionalism, Schmitt argues, there is no room for extraordinary situations of extreme

emergency. There is no place for the exception in which the syllogism of legal reasoning just

does not suffice. The mistake of the constitutional rationalist is to see the relation between a

particular case and the norm as a merely logical operation. Yet the application of the norm is not

contained in the norm or derivable from it. The whole idea of trial law stems from the fact that

written sanctions by themselves are inadequate in the face of contingent circumstances.

According to the rationalist view, however, all governmental action must lie within the scope of

written law.5

Yet the observable fact that modern liberal governments appeal to extraordinary powers

when they experience political and economic states of emergency reveals the fundamental

weakness of this approach. The exception is irrepressible. Refusing to consider it does not make it

disappear. Agamben and others are right to remind us that the exception has become the norm in

the contemporary world. The fact that almost all modern regimes make use of extensive

emergency powers while insisting that they are ruled by law simply demonstrates the self-

contradictory and perhaps even hypocritical nature of liberalism (see Lobel 1989). Schmitt argues

that liberals seek to obscure their own reliance on these exceptional powers because those powers

5 Schmitt’s characterization of “rationalism” in law is structurally similar to Judith Shklar’s view of

“legalism” in ethics which she describes as “the ethical attitude that holds moral conduct to be a matter of

rule following, and moral relationships to consist of duties and rights determined by rules” (Shklar 1964,

1).




8

lie outside the reach of normal law. They cling to the illusion of constitutional rationalism even

though all of the evidence lines up against it. As David Dyzenhaus puts it, “Because liberals

cannot countenance the idea of politics uncontrolled by law, they place a thin veneer of legality

on the political, which allows the executive to do what it wants while claiming the legitimacy of

the rule of law” (Dyzenhaus 2006, 39). It turns out that the naiveté of constitutional rationalists

actually simply contributes to the seemingly unstoppable process of executive expansion.

For these reasons, Schmitt insists that we can only come to understand the true nature of

political power by examining the exception. In the opening line of Political Theology, Schmitt

proclaims, “Sovereign is he who decides on the exception” (PT 5). He claims that in times of

emergency the sovereign is legally unrestrained. Yet Schmitt goes even further. Not only does he

say that sovereign power is unlimited; but also that we come to understand who or what is

sovereign only in the state of emergency. This is because the sovereign is the one who decides

that there is an emergency. The sovereign decides both how to respond and when to respond to

the exception. Schmitt puts it bluntly, “What matters for the reality of legal life is who decides”

(PT 34). No legal framework can anticipate such an exceptional situation in advance. It cannot

dictate with any precision when it should suspend its otherwise valid laws or what will need to be

done. As Schmitt argues, “the exception confounds the unity and order of the rationalist scheme”

(PT 14). The exception reveals that the appeal to rule of law is ultimately inadequate.

Closely linked to Schmitt’s notion of about the exception is his notion of about the

“political” (Schmitt 2007).

According to Schmitt the political is prior to law and its central distinction is between

friend and enemy. The primary task of the sovereign, then, is to make this distinction. It is in the

moment of emergency that the existential nature of the political is revealed. It is the sovereign

alone who is capable of making the ultimate decision about who is an enemy and who is a friend.

Once this existential decision is made, it is the sovereign’s role to determine whether there is a

threat to the state and to deal with it. This is why the moment of exception is of fundamental

importance; it is the exception that reveals the political decision and action underlying any




9

framework of law. “In the exception,” Schmitt argues, “the power of real life breaks through the

crust of a mechanism that has become torpid by repetition” (PT 15).

Thus Carl Schmitt’s reflections on emergency power are part of a larger project aimed at

demonstrating the impossibility of making emergency power consistent with the rule of law. For

Schmitt the rule of law has no place in an emergency. Schmitt argues that the traditional liberal

political and legal thought neglects the problem of the exception – the moment when extreme

danger imperils the very existence of the political or legal order. Liberalism’s legalistic thinking

blinds it to the primordial “political’ moment when an individual or a people must willfully and

without legal guidance decide to impose order on chaos. In such a moment, no legal norm can

foresee (let alone contain) which measures must be taken. Liberal-minded proponents of

constitutional government are unable to see this harsh fact. They naively believe that general

norms can bind state actors and provide effective guidance to state officials even during

emergencies. Liberal states institutionalize legal devises by which they hope to circumscribe

emergency power.

Yet in Schmitt’s view such efforts are foolish and deluded because the exception

potentially requires the exercise of absolute authority – and absolute authority cannot be

constrained by any legal order. As Schmitt puts it, “The tendency of liberal constitutionalism to

regulate the exception as precisely as possible means, after all, the attempt to spell out in detail

the case in which law suspends itself” (PT 14). Yet this is implausible on its face. “From where

does the law obtain this force,” Schmitt asks, “and how is it logically possible that a norm is valid

except for one concrete case that it cannot factually determine in any definitive manner?” (PT 14)

Since the range of possible emergency situations is indefinite, a priori general rules simply cannot

define in advance what might constitute an exception. The exception “cannot be circumscribed

factually and made to conform to preformed law” (PT 6). This is because “there exists no norm

that is applicable to chaos” (PT 13).

So for Schmitt the state of emergency is not something dictated by law but revealed when

the mask of liberal legality is stripped away by the political. It is a realm beyond law. Here




10

Schmitt follows Thomas Hobbes, who he views as the classical representative of his decisionist

and personalist view. He repeatedly cites Hobbes’s dictum, “auctorias, non veritas facit legem”

(Authority and not truth makes law, PT 33, 52. See Leviathan, ch. 26). For Hobbes civil law is

not the manifestation of truth, but the declaration of sovereign will. Law does not constitute the

sovereign; the sovereign constitutes law. The person who has the authority to make law by

deciding on the fundamental or existential issues of politics is sovereign. If we hope to grasp the

reality of our political life, we should avoid speaking abstractly about constitutional powers and

theoretical legal norms, and instead look to the concrete decision that emanates from a particular

authority (PT 33).

Schmitt insists that in an emergency situation, the powers of the sovereign must be

“unlimited.” This means that “from the liberal constitutional point of view, there would be no

jurisdictional competence at all” since the sovereign “stands outside the normally valid legal

system” (PT 7). The liberal concern that the sovereign should share jurisdictional competence

over the question of whether a state of emergency exists and how long it may continue is

dismissed by Schmitt as an unwarranted “liberal constitutional interference . . . which attempts to

suppress the question of sovereignty by a division and mutual control of competences” (PT 11).

The power of sovereign must remain indivisible, just as it remains unrestrained and absolute.

Carl Schmitt’s formations – forged in the fires of Weimar politics and offered as a

response to the failure of democracy in Germany – might seem overblown to legally minded

citizens of the United States, Canada, and the United Kingdom. Yet Schmitt is adamant that all

polities dedicated to constitutional government are caught in this same contradiction. They simply

cannot provide a sufficiently robust executive prerogative while preserving their core identity.

They cannot endorse extensive emergency powers as well as the rule of law. They must either

accept an unlimited and absolute sovereign during moments of exception (moments which the

sovereign himself determines) and thus give up on the idea of rule of law, or they must maintain

the fiction that law plays a role in emergencies that thus risk legitimizing whatever steps the

executive takes as legal actions. Proponents of liberalism are thus dangerously naïve about the




11

precarious nature of law. They ignore the fact that power always precedes law. They ignore the

fact that the political act originates the rule of law and maintains any legal regime. Schmitt argues

that the failure of defenders of liberal constitutionalism to recognize this crucial truth simply

shows that they are ill-equipped to respond to emergencies in which the vulnerability of the rule

of law is laid bare.

Locke’s Defense of Liberal Realism

Schmitt refers explicitly to Locke as an example of the type of naïve constitutional

rationalism that he finds so contemptible. “The exception,” he writes, “was something

incommensurable to John Locke’s doctrine of the constitutional state and the rationalist

eighteenth century” (PT 14). Locke does not sufficiently appreciate the tension between the

discretionary executive power that is necessary for maintaining security and the inflexible and

legalistic constitutional order. For Schmitt, Locke initiates the impersonal, rationalist trend that

obscures the importance of the exception and conveys a flawed view of law to subsequent

generations. Thus Schmitt draws a bright line from Locke through Immanuel Kant to his

contemporary Hans Kelsen. Each of these thinkers, he implies, seeks to avoid arbitrary rule by

insisting on the sovereignty of law and the absolute distinction between law and power.

Yet Schmitt is both historically and conceptually mistaken when he places Locke in the

same rationalist tradition with Immanuel Kant and Hans Kelsen. Schmitt’s most egregious

misreadings of the liberal tradition come from his tendency to interpret each thinker within the

tradition through Hans Kelson’s writings. In this way, Schmitt links the liberal tradition to an

overly rationalist account of law. As William Scheuerman puts it, “Schmitt starts with an

excessively formalist interpretation of the law, and then describes the weaknesses of that model in

order to discount basic liberal legal aspirations altogether.” (Scheuerman 2006, 64).

If we turn to the Second Treatise, we find a very different kind of liberal. When Locke

sets out to discuss the powers of government, he does not present his readers with a legal

syllogism. Instead he insists that constitutional power cannot be reduced to application of laws.




12

He states “that several things should be left to the discretion of him, that has the executive power”

(ST §159). This means that for Locke the rule of law is not the only legitimate form of

governance. In fact, the executive is granted a prerogative power “to act according to discretion,

for the public good, without prescription of law, and sometimes even against it” (ST §160). The

prerogative power lies outside the law, yet is somehow still legitimate. Unlike Machiavelli’s

theory of dictatorship in which the dictator is invested with power by another constitutional

organ, Locke asserts that the executive itself must decide whether or not to employ this extralegal

prerogative power. For Locke legitimate government includes both legal and prudential elements.

By placing the prudential use of judgment at the center of his theory of liberal

government, Locke anticipates many of the criticisms Schmitt uses against constitutional

rationalism. He recognizes that “standing, fixed laws” are important, yet cannot eliminate the

unpredictable aspects of politics. “Things of this world are in constant flux,” Locke writes, “and

nothing remains long in the same state” (ST §157). For this reason an overreliance on inflexible

law can threaten the legitimate goals of security and liberty. In contrast to Condorcet and Kant,

Locke recognizes that the particular case cannot be reduced to the application of a general norm.

For Locke every concrete situation is a potential exception. The executive must do more than just

apply the law. It must use judgment in order to respond to the exception.

Recently Locke scholars have begun to emphasize this point by showing the crucial

importance of prerogative in Locke’s conception of constitutional government (Corbett 2006;

Fatovic 2004a; Fatovic 2004b; Josephson 2002; Pasquino 1998; Mansfield 1989). These scholars

rightly point out that Locke cannot be accused of “rationalist confidence in juridico-institutional

mechanisms” (Fatovic 2004a). Locke is aware of the limitations of the rule of law and thus

endows the executive power with “its own will and responsibility that permit it to face the

unpredictable” (Pasquino 1998). Thus Locke scholars have increasingly come to recognize that

the executive would have to do more than execute “established, standing laws” (ST §131). As

Fatovic puts it, “the extraordinary is an ordinary part of politics” and thus a power must exist that

is not limited by ordinary legal norms (Fatovic 2004b, 282). Stable and lasting governments must




13

include a prudential power of judgment that is capable of responding to those “accidents and

necessities” that are an ineradicable part of political life (ST §160).

It is Locke’s willingness to address prerogative that sets him apart from the tradition of

constitutional rationalism. Yet he does not therefore place unlimited power in the hands of the

executive; that is, he does not endorse Schmitt’s decisionism. He does this by distinguishing

between constitutional authorization (that originates with the people) and ordinary legal norms

(that originate with the legislature). Prerogative is a power that exists beyond written law, yet it is

constrained by constitutional authorization. It is in this sense that Pasquino can assert that Locke

provides us with “a systematic constitutional theory of extralegal power” (Pasquino 1998, 199).

And Ward can argue that “executive prerogatives is a potentially enormous extra-legal power, but

it is not in the most crucial sense extra-constitutional” (Ward 2005, 721).

Locke initiates his explanation of the origin and nature of government with what he calls

“the very strange doctrine” of executive power (ST §9, see also Corbett 2006, 431). He argues

that in the state of nature every person has the power to enforce the unwritten law of nature (ST

§7). Since this law is somewhat ambiguous the executive power involves making prudential

judgments about the proper way to interpret and execute it. Thus the original and natural

executive power includes both a legal and a prudential component. The tendency of individuals to

make rash, irrational, and self-serving judgments creates “inconveniences” that eventually lead

them to form civil society (ST §13).

Political power, then, is derived from the transfer of individual prudential powers to a

common authority. This transfer takes place in two stages. The first stage results from unanimous

decision to hand over the executive power of judging and enforcing the natural law to a common

authority. This transfer establishes civil society, also called the body politic. The resulting entity,

the “people,” is thus prior to the government, and the government is answerable to it.6 The second

6 Here Locke is implicitly rejecting the Hobbesian one-stage compact in which there is no body of the

people independent of the sovereign. The first stage of the compact conveys constitutional authority to the

“people” and it is the people who have the constitutional responsibility to evaluate the legitimacy of any

subsequent governing body.




14

stage is accomplished by majority rule and sets up particular governmental institutions. It is

important to note that, with the exception of absolute monarchy, Locke does not stipulate what

type of government a people must choose. He leaves this determination to the judgment of the

people taking into consideration their particular circumstances (ST §§106, 107, 110-111). Once

the majority chooses a government, individuals are obliged to suppress their own private

judgments in cases of public controversy. The “known indifferent judge” that the commonwealth

supplies is made possible by the ability of Lockean agents to relinquish their own judgment in

matters in which an umpire government can more appropriately arbitrate disagreements. The

transfer of executive power, however, is not subordination or enslavement to a sovereign, but

rather a temporary and conditional act aimed at mitigating the inconvenienced of the state of

nature.

Toward the end of the Second Treatise, Locke describes this process as based on a type

of “trust” between the king and the people (ST §§136, 139, 142, 167, 171, see Ward 2005, 733;

Dienstag 1997, 71; den Hartaugh 1989-90; Dunn 1985). At times this trust is discussed in a

general way as a pattern of mutual expectations that must be maintained to sustain political

society. Locke writes that “those, who liked one another so well as to join into society, cannot but

be supposed to have some acquaintance and friendship together, and some trust in one another”

(ST §107). Here we see that the original contract for Locke is not based exclusively on a series of

individual promises, but on a general attitude of willing cooperation and trust. At other times

Locke writes of this trust in a more explicitly legal manner, as a “fiduciary trust” between the

king and the people (ST §§156, 149). According to this model, the government is seen as a

deputy that has been entrusted with powers of interpretation and application of the natural law.

The people depute their right and obligation to judge individual cases concerning the boundaries

of propriety to the government, and thus to the executive insofar as the executive requires a

certain degree of discretion in order to fulfill its appointed task. In contrast to Filmer, the




15

executive is a trustee of political power and not its owner.7 The people retain the right to reclaim

it when the government itself becomes a threat to the property that it holds in trust.8

According to Peter Laslett, “It is very difficult to make sense of what he says if you try to

interpret the actions of people on breach of trust as those of defrauded beneficiaries under a

formal trust” (Laslett 1988, 130). Yet if we understand the right to judge for the public good as

that which is placed in the trustee’s hands, then the legalistic metaphor of fiduciary trust seems

perfectly appropriate (see Dienstag 1997, 72). In fact, Locke’s description of the relationship

between people and government is more correctly thought of as a trust than a contract. In a

contract the performance of one party binds the other and any disagreements require independent

arbitration. With a trust the original holder of goods confers a certain degree of power on a trustee

or agent. The people, as the beneficiaries of the trust, retain ownership of a right to judge whether

that trust is being properly carried out even though they believe that under normal conditions the

trustee can more effectively and more beneficially make use of that power.

This effective management of the right of judgment rests on a government’s ability to

provide a trustworthy and steady standard of propriety in matters of public controversy. This is

accomplished in part by the establishment of standing laws instead of temporary, arbitrary

decrees. Laws can provide an important, public standard of justice when they are “settled,

standing rules, indifferent, and the same to all parties” (ST §87). These laws are “not to be varied

in particular cases, but to have one rule for rich and poor, for the favourite at court, and the

country man at plough” (ST §142). Settled, standing rules are so important to Locke because they

make the boundaries of right more visible and provide guidelines for proper punishment.

Established, written laws can mitigate the uncertainty that is so unsettling to individuals in the

7 For Filmer’s almost Schmittian insistence on the absolute limitlessness of prerogative, see Filmer 1991,

44-45.8 John Dunn questions this interpretation as an imposition of an external category onto Locke’s argument.He writes that “the metaphor of legal trust . . . was not original to him; and it carries little or no distinctive

weight in his argument” (Dunn 1985, 296). It is certainly true that this metaphor was in widespread use,

especially during the trial and execution of Charles I, as Gough has shown (Gough 1950, ch. 7). Yet this

historical evidence should actually strengthen the argument that legal language of fiduciary trust would

resonate with Locke’s audience.




16

state of nature. “For the law of nature being unwritten, and so no where to be found but in the

minds of men,” Locke writes, “they who through passion or interest shall miscite, or misapply it,

cannot so easily be convinced of their mistake where there is no established judge.” For this

reason “it serves not, as it ought, to determine the rights, and fence the properties of those that

live under it.” Given the practical difficulty of living according to an unwritten law of nature,

human beings enter society and establish “standing Rules to bound it, by which every one may

know what is his” (ST §136). Thus the legislative, as well as the executive, serve to articulate the

natural law in a way that is more visible and effective by establishing and ruling according to

standing laws.

In addition to the existence of standing laws, Locke insists that an avenue for appeal must

be open to subjects to question decisions made by the government and even challenge

governmental actions themselves. This requires that under normal conditions the executive be

answerable to the law and that the executive and the legislative be kept separate (ST §§ 91, 205-

207). Also the laws that apply to subjects should apply equally to rulers. The possibility of a

common judge – and thus the possibility of avoiding the confusions of the state of nature –

requires the establishment of the rule of law (ST §§ 93-94, 202). Establishing a predictable legal

arrangement is the reason that the people entrusted their natural, executive power to government

in the first place.

Yet the civil government that Locke envisions as the remedy to the inconveniences of the

state of nature is not merely an arbiter of controversy. Nor is it simply a guarantor of a relatively

stable realm in which parties and private interests can continue to do battle. Locke's

understanding of civil government is not laissez-faire. Instead he implies that the state has a

positive role to play in articulating public purposes, establishing authoritative conventions, and

making legislative judgments as to what policies best promote the interests of the public. The

appropriate tasks of government for Locke include those things that provide not only for the

preservation, but also for the prosperity of the commonwealth (see Locke 1991; Kramer 1997).






18

some cases in which law simply does not provide rulers with the proper guidance to address novel

situations and still other cases in which “a strict and rigid observation of the laws may do harm”

(ST §159). For these reasons it is important that the executive enjoy a prerogative power “to act

according to discretion, for the public good, without the prescription of law, and sometimes even

against it” (ST §160). Although Locke notes that the people retain the right to limit the executive

prerogative by establishing specific positive laws in areas that might otherwise be left to

executive discretion, he insists that government run entirely by standing laws is an impossibility

(ST §164).

It is important to note that Locke is not in any way asserting that the executive will

should thus be given an exalted status or that the magistrate should enjoy a type of boundless

supremacy. This would be to endorse the type of arbitrary rule that is the primary target of the

Two Treatises. Prerogative powers for Locke are not granted as a personal privilege, but rather as

a necessary means to provide for the public good (ST §§162-168). Locke explicitly distances

himself from those who might consider that “the person of the prince by the law is sacred” and

thus “free from all question or violence” (ST §205). Yet by providing rulers with such far-

reaching discretion in applying and interpreting the statutes of a polity, Locke seems to

reintroduce many of the troubles that unsettled the state of nature in the first place. From the

perspective of the subject, an executive exercising prerogative by subverting written law and

enforcing his own interpretation of the law of nature would be difficult to distinguish from the

type of imposition that government was established to avoid.

For example, Locke speaks of changing the terms of an election at two occasions in the

Second Treatise. On the first occasion, he points out the inequity of the system of representation

in his day due to the variable growth and decline of populations. It would be appropriate, he

argues, if the executive would use his prerogative power to adjust the electoral system, since it is

in “the interest . . . as well as the intention of the people, to have a fair and equal representative”

(ST §158). However when Locke later lists a series of hypothetical actions that an executive

could take that would so alter the composition of the polity that “dissolution of government”




19

could legitimately be “imputed to the prince” (ST §218). One of those actions is that the “the

electors or ways of election are altered without the consent and contrary to the common interest

of the people” (ST §216). In the first instance the alteration of a system of representation makes

the executive “an undoubted friend, to, and establisher of the government, and cannot miss the

consent and approbation of the community” (ST §158). In the second, the prince is “justly to be

esteemed the common enemy and pest of mankind” (ST §230).

The difference hinges on Locke's notion of the public good. Locke tells his readers that

prerogative is “nothing but the power of doing public good without a rule” (ST §166). In his later

writings on monetary policy, he reiterates this position, arguing that individual right is in some

instances bounded by considerations of public well-being: “Private men’s interests ought not . . .

to be neglected, nor sacrificed to any thing but the manifest advantage of the public” (Locke

1991, 220). He also points to early political communities ruled by “godlike” princes “who cannot

have too much prerogative” because they use such discretion to promote the interests of their

subjects (ST §164). The difference between legitimate government and despotic control is that

legitimate government acts in order to further public interests.

At this crucial point in his account, Locke leans quite heavily on the imprecise and

certainly contested notion of public good. An appeal to the public good, in itself, cannot provide

us with a standard to distinguish between the legitimate ruler and the tyrant. In the Letter

Concerning Toleration, Locke points out that duplicitous leaders are apt to “colour their spirit of

persecution and unchristian cruelty with a pretence of care of the public weal . . .” (LCT 25).

Doubtless any executive making changes to the franchise would claim that he was acting for the

common good. Certainly Charles II would have said this. If discretionary power is not only the

power to act but also the power to judge what is needed in a particular situation, then it would

seem to include making a determination about what constitutes the public good in those

situations. The point of granting an executive prerogative in the first place is to allow leaders the

latitude to determine how best to serve the public, a task that rigorous application of law cannot

achieve.




20

It is important to note that although Locke allows for individual judgment of executive

wrongdoing, it is the judgment of the people that ultimately gives the public good its concrete and

tangible meaning. When a king appeals to prerogative in order to act against the public good, he

is abusing a term that is held in common by his subjects. It is no accident that Locke first

introduces his theory of the right of revolution in his section on prerogative. By subsuming an act

that actually injures the public under the heading of prerogative, a ruler threatens to unsettle the

steady, shared language of justification. He turns the common understanding of the word on its

head. No longer is such a ruler interested in attempting to clarify and enact the judgment of the

people. Instead of fulfilling the responsibilities of a trustee, the corrupt ruler becomes a tyrant

ruling for his own benefit. Under such conditions the trust is dissolved and the people have the

right and the duty to try to reclaim their stolen inheritance. They have a right to reclaim their

authority to judge and enforce the law of nature.

In order to illustrate this difficulty we need only examine the way Locke appeals to James

I to argue that a good monarch devotes his power and authority to further the common good.

After quoting the monarch, Locke notes with approval that the “learned king, makes the

difference betwixt a king and a tyrant to consist only in this, that one makes the law the bounds of

his power, and the good of the public, the end of his government; the other makes all give way to

his own will and appetite” (ST §200). By citing passages from a speech of James I, Locke is able

to appropriate the comments of one of the most vehement defenders of divine right in order to

bolster his argument in defense of revolution. Both Locke and James distinguish between

legitimate prerogative and tyrannical excess by appealing to the intentions of the ruler and

consequences of his rule. The nagging question, however, is who is to be the judge of whether the

actions of the executive contribute to the public good. For James the only judge to whom

monarchs must answer is God. Locke does not quote the passages in James’s speech in which he

states that God “doth . . . never leave kings unpunished when they transgress these limits” (James

I 1994, 183). Judgment and punishment of monarchs must be left to the wisdom and authority of

God alone, for it is “sedition in subjects to dispute what a king may do in the height of his power”




21

(183). Although Locke agrees that “princes . . . owe subjection to the laws of God and nature”

(ST §195), he also insists that the limits of prerogative and thus the legitimate powers of the

executive must also be defined and enforced in this world. For James I, God alone holds

monarchs accountable. For Locke, “the people shall be judge” (ST §240).

Yet how exactly is this determination made? Although Locke at times seems to imply

that this judgment is made individually, generally he argues that the “people as a body” determine

when a ruler has exceeded his proper powers. Dunn is surely mistaken when he writes, “The

authority of the prerogative over the individual subject is precisely and exclusively what the

individual recognizes it to be” (Dunn 1985, 155). This is exactly the type of radical linguistic and

political subjectivity that Locke tries to avoid throughout his career. Here we see why it is

significant that he argues that the establishment of government takes place in two stages. When

the magistrate is seen to abuse its trust, the right of judgment does not immediately fall back to

individuals in the state of nature as it does with Hobbes, but to the people as a persisting entity.

Locke writes, “The common question will be made, who shall be judge, whether the prince or

legislator act contrary to their trust? . . . To this I reply, the people shall be judge; for who shall be

judge whether his trustee or deputy acts well, and according to the trust reposed in him, but he

who deputes him . . .” (ST §240). When Locke writes that the people should be judge he means

that the community that constitutes the body of the people must arrive at a determination.

As we have seen, Locke’s distinction between the state of nature and civil society rests on

the presence of a common authority. His entire political project of shaping a common language of

judgment is aimed at providing his readers with a set of epistemic criteria that can join them

together as a people. When Locke says that “the people shall be judge,” he means that civil

society and not individuals in the state of nature, should determine whether to resist a failed ruler

(ST §240). A tyrant is said to be in “a state of war with the people, who have a right to reinstate

their legislative. . . (ST §155). In the moment of revolution the people themselves are neither in




22

the state of nature or in the state of war with each other.9 They retain the epistemological

cohesiveness and unity that secures them from the inconveniences of the state of nature. Thus

Locke writes that when the tyrant acts to put himself in “a state of war with his people, dissolve

the government, and leave them to that defense, which belongs to every one in the state of

nature,” he is not necessarily saying that the people themselves are in a state of nature with each

other, but only that they are as a body in a state of war with their ruler and have the defense that

they would have in their natural condition.10

Although members of society remain bound to each

other, the king breaks his link with society and becomes a highwayman, a noxious beast who is

“justly to be esteemed the common enemy and pest of mankind; and is to be treated accordingly”

(ST §230). In this way resistance to the unlawful tyrant is modeled on the example of retribution

against criminals (ST §§9, 11, 16).

Locke’s insistence that the people exist as an independent and incorporated entity with

the power to judge and not simply as a disorganized multitude of private judgments is central to

his understanding of the regenerative possibilities of revolution. For Hobbes, if the sovereign

loses power and can no longer secure the safety of those who have joined society, citizens fall

back into an anarchic world of fear and violence. For Locke, it is possible that the degeneration of

a regime leaves society intact to exercise its power of judgment and reestablish a more fitting

government. Unlike Hobbes, Locke in convinced that his readers can and will exercise their

judgment as a people with sober restraint and careful deliberation. His defense of the right of

revolution rests on his assumption that the people will be able to form reasonable judgments

about their political condition.

9 Locke appears to teach both that society can exist without government (2T §§121, 211) and that society

cannot exist without government (2T §§205, 219). This apparent contradiction dissolves, however, if weinterpret Locke's position as one in which society, or the people, exist independently only in a very few

instances. The revolutionary moment is thus parallel to the majority decision that establishes the

institutional framework or supreme power of government as individuals move out of the state of nature.

The action sets up a new polity in the very moment that it abolishes the old one.10 Locke states that the “usual and almost only way” society is dissolved is by foreign conquest (2T §211),

yet he also notes that civil society can be dissolved when the legislative is radically altered (2T §212). It

seems that the distinguishing factor here is that as long as matters of public importance can be publicly

deliberated and public judgments can be made, society remains intact. When public determinations can no

longer be achieved, society dissolves into a state of nature in which there is no common authority.




23

Locke recognizes, however, that there will be objections to this somewhat shaky basis for

legitimacy. He realizes that many will yearn for something more permanent and certain on which

“to lay the foundation of government” than “the unsteady opinion, and uncertain humour of the

people” (ST §223). Yet he remains adamant that there is no other foundation for legitimate

government. Having shown in the First Treatise that a stable polity could not simply result from

the imposition of a divinely ordained system of politics, Locke insists that the only other original

or foundation of government is the “contrivance, and the consent of men” (1T §6). Locke

believes that this teaching will not encourage “a busy head, or turbulent spirit” nor fuel frequent

rebellion (ST §§230, 224). This is because the opinions and humor of the people are not as

unsteady as critics assert. He argues that the inhabitants of a Lockean regime are able to govern

their leaders because they were first able to govern their own judgments. Here Locke is not only

describing the way people will conduct their intellectual lives in practice, but he is also

encouraging his readers to conform to this model. It seems surprising that Locke should rely so

much on judgment, given the unsettled nature of the state of nature in his account and the role

that government plays in supplying the standards necessary for the proper ordering of right and

propriety. Yet Locke is convinced that the people can be made to see the clear signs of tyranny

and distinguish them from the ordinary defects of government (Dunn 2003, 277-278).

Yet is this assumption justified? Benjamin Kleinerman has recently pointed out that

Locke is surprisingly pessimistic about the ability of the people to recognize when the executive

has abused prerogative (Kleinerman 2007). Locke tells us that the “busy heads” might resist any

assumption of power beyond the legal limit, but the people as a whole will be apathetic (ST

§198). Although every polity will include “a raving mad man, or heady malcontent” and perhaps

even “a few oppressed men” (ST §208), the people as a body will not be stirred by scattered calls

for violent revolt. Their judgment concerning specific acts of prerogative will rely on evidence

that an action is “manifestly against” the public good (ST §165). Even if they do find an action to

be against the public good, they will often excuse it as “human frailty and mistake” (ST §165, see

also §225).




24

If Locke is right that even the best constitutional order includes executive discretionary

power, the people cannot simply retreat to the legalist position that any claim to discretionary

power outside or against written law is tyrannical. This makes it much more difficult for the

people to question powers claimed under the mantle of necessity and emergency. It is also safe to

assume that an executive will be careful to maintain the appearance of a connection between any

act of prerogative and the public good. Thus we can join Dunn in thinking, “The problem as

Locke sees it is not that men are not prone to accept legitimate hierarchies, but that they are all

too prone to accept illegitimate ones” (Dunn 1967, 181). Locke’s observations concerning the

passivity of the people seem to cast into doubt his call for revolutionary resistance to tyranny.

Locke is confident that a people will resist a ruler whose tyrannical acts affect the

majority. The improprieties of misrule will eventually become so great that the majority will “feel

it” (ST §168). Yet he seems less certain that the people will act prior to that. The vast majority of

people will not think much about abuses of prerogative that they do not “see and feel.” (ST §209).

This is why Nathan Tarcov argues that Locke’s theory makes something like “elite cueing”

necessary. “The few who can foresee” should make it known “whether the oppression of a few is

such that ‘the precedent and consequences’ seem to threaten all” (Tarcov 1981, 214). This is one

way to understand what Locke himself is doing in the Second Treatise; he is showing his

contemporaries why they should resist the tyranny of their king even if they cannot yet feel it. In

a similar vein, Kleinerman argues that Locke might be pointing to the importance of a written

constitution as a type of frame through which a people can be made to “see and feel” tyranny. A

constitution provides boundaries to remind citizens what legitimate governance should look and

feel like. “Such boundaries,” Kleinerman argues, “establish the visible means by which people

can judge both the actions of their government generally and the more specific actions of their

executive” (Kleinerman 2007, 221). For Kleinerman a constitution can serve the same function as

Tarcov’s farseeing liberal scout, it teaches the people how to be jealous of their liberties. They

both help to nurture a political culture that is scrupulous about possible abuses of executive

action.




25

Yet it is the people alone who ultimately determine the legitimacy of executive action. In

such a case, Locke argues, there is no judge of earth who can arbitrate between the people and

their ruler. They must make their “appeal to heaven” (ST §§21,168, 176, 241). The way that

Locke uses this traditional phrase, however, requires a bit of disentangling. King James I can also

say that the only recourse an oppressed people have is to appeal to heaven. Yet for James, this

means that subjects take solace in the fact that God will judge. They appeal to heaven through

prayer and then wait for God to rectify the injustice.11

This of course is not what Locke means by

the phrase. For Locke, to appeal to heaven is to resort to violence. He defends his view by

invoking the biblical figure of Jephtha as an example of someone who appeals to God’s judgment

by employing force. As Locke interprets the story, Jephtha seeks to clarify the will of the divine

by entering into battle. This type of appeal to heaven is simply a recovery of the right to execute

the law of nature, a right that everyone possess in the state of nature. When a ruler abuses his

prerogative and acts in a way that is contrary to the public good, he puts himself “into a state of

war with his people” and leaves “them to that defense, which belongs to everyone in the state of

nature” (ST §205). Since “in all states and conditions the true remedy of force without authority,

is to oppose force to it,” the people may choose to take up arms in order to free themselves from

their oppressor and reestablish a government that can properly secure their rights (ST §163). To

rise up against a tyrant, then, is to appeal “to the supreme judge, as Jephtha did” (ST §241).

Yet unlike Jephtha, the Lockean revolutionary is given no divine guarantee of success.

What is striking about Locke's appeal to the people as judge is the deep uncertainty surrounding

both the determinations that are made and the possibility of successful revolution. Although he

points to the way general signs or patterns of behavior can be interpreted as abuse, Locke does

not offer his reader a perfect way to delineate between tyranny and legitimate rule in the actual

11 Martin Seliger notes that Locke was able to transform “the traditional Christian view which restricted theappeal to heaven of the governed to mere prayer.” Martin Seliger, The Liberal Politics of John Locke

(London: Allen and Unwin, 1968) 63-64. Nathan Tarcov cites I Samuel 24:12 and 15 where the phrase “the

Lord be judge” is invoked between subjects and ruler to mean that subjects should not take matters into

their own hands. As we can see, Locke’s use of a similar phrase is deployed for very different purposes.

Tarcov, "Locke's Second Treatise and 'the Best Fence against Rebellion'."






27

created to his fellow subjects; that is, any part of mankind” (ST §176). In this context it is

important to remember that Locke never tells his readers to revolt; he does not dictate to them

what they must do. Instead he presents an argument in defense of their right to judge. In the end it

is up to readers to decide whether the government has embarked on a course toward enslavement.

Locke is confident that the people will recognize what is happening to them and respond

appropriately, just as a passenger on a ship would eventually recognize that their captain “was

carrying him, and the rest of his company to Algiers [a known slave market], when he found

himself always steering that course” (ST §210).

The message of the Second Treatise is unmistakable. Locke calls his readers to begin the

hard work of judgment. Do you live under the threat of tyranny? Has there been a long train of

abuses with a clear design to oppress and defraud the people? Has the government put itself in a

state of war with the people? Ultimately the people themselves must determine the answers to

these questions. It is only through the activity of judging – as uncertain as it may be – that

Lockean agents can come to understand themselves as free beings. It is in this sense that Joshua

Foa Dienstag rightly points out that “Locke offers his readers a choice rather than a creed”

(Dienstag 1997, 73). To prove that we are rational and free persons and not Filmerian slaves, we

must reclaim what is naturally ours. We must take up the difficult task of making determinations

about the proper exercise of political power under conditions of uncertainty. The success of

Locke's political project depends on the formation of citizens who seek to be more than just

obedient subjects or even zealous patriots. It also entails more than simply the application of

written law. For Locke and the liberal realists who followed in his wake, consensual government

requires a willingness to exercise judgment that can at times exceed written law. Both prerogative

and revolution are extralegal responses to the unpredictable nature of political life. Yet they are

not extraconstitutional or illegitimate. In fact, the power of judgment – a power that cannot be

reduced to a legal power – lies at the heart of legitimate, constitutional government.




28

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Documents

But It is an Emergency. Carl Schmitt, John Locke and the Paradox of Prerogative_Douglas Casson