On the Relationship between John Lockes Definition of Prerogative Power and Tyranny in the Second Treatise of Government

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March 2014

In his discussion of civil society, John Locke places a significant amount of focus on the rights of the executive branch of a government and its role in relation to both the commonwealth and the legislative branch. Whereas Locke always makes clear the expectations of government, namely that the preservation of property and the well being of the commonwealth are its primary objectives, the manner in which these goals should be attained can be difficult to discern. Prerogative power is an example of such an uncertainty because of its seeming similarity to tyrannical power. However, Locke, through distinguishing absolute from arbitrary power and relating each to prerogative and tyrannical rule respectively, is able to avoid any such apparent contradiction in the Second Treatise and therefore presents a theoretically feasible society.

In his discussion on the extent of legislative power, Locke makes a clear distinction between what he believes to be arbitrary power and absolute power. Arbitrary power is when the sovereign has unreasonable and unlimited control over his subjects. He rules without standing laws and can impose his personal will to whatever extent he desires.[endnoteRef:-1] Locke states that to be under arbitrary power is irrational as, it does not consist of the ends of society, [and for] which men would not quit their freedom of the state of nature for.[endnoteRef:0] Men naturally form society from the state of nature through the realization that the concentration of power into a form of government is the best manner in which they can preserve their property.[endnoteRef:1] This realization is founded in reason and requires consent[endnoteRef:2] as only reason could make man understand that the initial constraints of society only enhance an individuals ability to prosper in life as opposed to the uncertain freedom of the state of nature and only consent could form a truly functional society. However, to forfeit ones natural rights to a tyrant who has arbitrary power over his subjects is illogical as such a submission would not guarantee any preservation of property; the sovereign with arbitrary power does not care for the common good but rather seeks to promote his own will over his subjects. Thus, because the sovereign with arbitrary power does not have the consent of the people and does not care for the public good, his rule is not founded in reason and is unlawful. [-1: [XI, 137]] [0: [XI, 137]] [1: [IX, 124]] [2: [VIII, 95]]

Absolute power is the ability the sovereign of a state has to make decision that are not sanctioned by the legislative but that look to promote the public good, absolute power, where it is necessary, is not arbitrary by being absolute, by is still limited by that reason, and confined to those ends, which required it in some cases to be absolute.[endnoteRef:3] A sovereign with absolute power cannot impose his own will upon his subjects, as he must still work to promote the public good. It is reasonable for the sovereign to advance the public good, as the bond holding the subjects to society is the promise that their preservation of property is enhanced.[endnoteRef:4] Accordingly, because the citizens of a commonwealth know that such absolute power is sometimes necessary for the preservation of property, they will consent to a government where the sovereign has the ability to practice such absolute power when needed. [3: [XI, 139]] [4: [XI, 137]]

At this stage, it is important to clarify the role that reason plays in the distinction between arbitrary an absolute power. Reason is what allows individuals in the state of nature to join society if their chosen government can better preserve their property.[endnoteRef:5] It would be irrational for individuals to submit their natural rights to any form of government where the sovereign has arbitrary will over his subjects, as he would seek to promote his own aspirations over the public good.[endnoteRef:6] On the other hand, absolute power is sometimes necessary for the preservation of property, as will be shown later, so it would be reasonable for these same individuals to leave the state of nature and forfeit their natural rights to a sovereign with the ability to employ prerogative power (???) where necessary. [5: [VIII, 96]] [6: [XVIII, 201]]

Before Lockes description of prerogative power can be labeled as arbitrary or absolute, though, it is necessary to understand its origins and role in government. In order for political society to stay true to its original purpose, namely the preservation of property[endnoteRef:7], the first and fundamental positive law of all commonwealths[endnoteRef:8] should be the formation of a legislative power to establish standing laws for the peace, safety, and public good of the people. This legislative power is the supreme power of society[endnoteRef:9] and affects every member of the commonwealth but it only needs to assemble at times to make such lasting laws.[endnoteRef:10] Accordingly, the institution of an executive power to implement the laws made by the legislative is also essential for society. The executive power needs to be constantly active so that the preservation of the commonwealth, through the laws established by the legislative, is always ensured.[endnoteRef:11] Furthermore, the legislative and executive powers must be placed in distinct hands, as the ability to both create and execute the laws of society would be too great a power in the hands of one group of people.[endnoteRef:12] [7: [IX, 124]] [8: [XI, 134]] [9: [XI, 134]] [10: [XII, 143]] [11: [XII, 144]] [12: [XII, 143]]

With this distinction between the legislative and executive powers within a political society, there will arise certain times when the executive will need to act, without the prescription of the Law, and sometimes even against it.[endnoteRef:13] Such a situation arises when the executive must make a decision where no laws exists or where the laws established by the legislative are deemed too harsh for a particular instance. Such executive power is called the prerogative[endnoteRef:14] and Locke dedicates a chapter of his Second Treatise to explaining why this ability of the sovereign is lawful and necessary for a commonwealth. [13: [XIV, 160]] [14: [XIV, 160]]

At the beginning of the chapter Of Prerogative, Locke gives an example of when the sovereign might employ prerogative power to illustrate its necessity in society. He proposes a situation where there is a house on fire that can only be reached by tearing down the house adjacent to it and if the fire is not stopped, then the entire city will burn down.[endnoteRef:15] The legislative branch states that the government serves to protect property and that the tearing down of a house would violate the laws of society.[endnoteRef:16] However, it would be completely irrational to let the entire city burn just to save that one house, which would itself be destroyed by flames anyway. Locke solves this problem by giving the sovereign prerogative power to allow the tearing down of the first house, even if it is against the legislature, to save the city. [15: [XIV, 159]] [16: [XI, 134]]

A historical example of the necessity of prerogative power can be found with the suspension of the writ of Habeas Corpus by Abraham Lincoln during the American Civil War. Habeas Corpus is a constitutional right that states that prisoners must be released if unlawfully arrested. However, Lincoln knew that in order to prevent the secession of many border-states and the consequent downfall of the United States of America he had to prevent the actions of many governors in favor of secession by imprisoning them unlawfully. Thus, Abraham Lincoln knew that his employment of prerogative power, while unconstitutional, was necessary for the public good in the long term.

Lockes description of prerogative power illustrates that it cannot be tyrannical because it is an absolute and not arbitrary power. The sovereign who uses prerogative power is not attempting to impose his personal will but is rather promoting the public good in situations where the legislative is too slow to act or has established laws that are too lenient or harsh.[endnoteRef:17] Prerogative power can only exist where there is a separation of the executive and legislative branches and, while it does have the right to override the legislative, its interest is always the promotion of the public good and the preservation of property. In addition, the citizens of a commonwealth agree to prerogative power when they consent to join society because they know it to be a necessary aspect of government, the prerogative can be nothing, but the people permitting their rulers, to do several things of their own free choice, where the Law was silent, and sometimes too against the direct letter of the Law, for the publick good.[endnoteRef:18] Thus, because the prerogatives only concern is the public good, it is an absolute power to which it is reasonable for the people of a commonwealth to give their consent. [17: [XIV, 160]] [18: [XIV, 164]]

A possible weakness of Lockes belief that prerogative power is necessary component of political society is that it might provide too much power to the executive to form a tyrannical rule. In the last chapter of the Second Treatise, he writes on the dissolution of government and when it is right for the people to rebel. On the one hand, it would be unlawful for the commonwealth to resist prerogative authority as it has been given their consent and looks to promote the public good. On the other hand, it is just for the commonwealth to stand resistance to a sovereign who enforces his arbitrary will over the law.[endnoteRef:19] This means that a sovereign with prerogative ability does have the ability to become a tyrant if he abuses his power, but, in such a case, his subjects would become aware of his transgression and would have the right to rebel. The possible contradiction that prerogative power could be used arbitrarily is explained by the fact that the citizens of a commonwealth have the ability to reason when their sovereign is acting with absolute or arbitrary power. [19: [XIX, 214]]

Locke states that, tyranny is the exercise of power beyond right,[endnoteRef:20] and that the sovereign who rules as such cares only for his own interests and not the interests of the commonwealth. It is permitted for the citizens of a commonwealth to dissolve their government if the sovereign enforces his arbitrary will over the law.[endnoteRef:21] In such a situation, the people find themselves worse off than they were in the state of nature as they have submitted themselves to a society where they are judged and punished by one man, a tyrant. A sovereign practicing prerogative power, on the other hand, would never be in such a situation because reason dictates that the sovereign should only use such power for the good of the commonwealth and therefore the citizens would have no reason to rebel. In Lockes example with the burning house, the citizens would be know that, while tearing down the first house is a violation of property, it is a necessary act for the promotion of the public good that can only be brought about by the prerogative. These citizens have given their consent to the prerogative because they know that it is for the public good.[endnoteRef:22] Thus, there is no contradiction between the power of the prerogative and the right of the commonwealth to rebel against tyranny as the two are mutually exclusive: true prerogative power can never be considered tyranny since it has the consent of the people and is concerned with the public good. [20: [XVIII, 199]] [21: [XIX, 214]] [22: [XIV, 163,164]]

It could also be argued that prerogative power, even though it may benefit the public good, is still unlawful because, wherever law ends, tyranny beings[endnoteRef:23] and it gives the executive the right to overrule the supreme power of the legislative. However, because the preservation of property is the sole foundation for government, it is more lawful for the executive to protect the interests of the people through the prerogative than to protect the sanctity of the legislative branch.[endnoteRef:24] Therefore, when prerogative power is used responsibly, even if that means going against the legislative branch, then it is not acting outside of the law. In other words, any action by the sovereign with the aim of best preserving property is by definition lawful as its only resonates with the original foundation of society.[endnoteRef:25] Accordingly, it would be unreasonable for the commonwealth to rebel against prerogative power, as rebellion would return them to the state of nature, which is better than tyranny but more dangerous than a government where the sovereign has prerogative power. [23: [XVIII, 202]] [24: [XI, 138]] [25: [XIV, 159]]

Locke also states that rebellion is just when the process of election is altered without consent of the people and, by the arbitrary will of the sovereign.[endnoteRef:26] Again, he specifies that the element at fault in such a situation is the arbitrary power of the sovereign who chooses to run the government in another manner than which the people had agreed to. Prerogative power does not entail such authority because it must be by consent and fall in accordance with the common good, neither of which the alteration of elections agrees with. [26: [XIX, 216]]

In his Second Treatise, Locke has defined the distinction between arbitrary and absolute power where the latter is required to remain within the bounds of law, have the consent of the people, and care for the public good, and has outlined the relationship between these two manners of ruling to prerogative and tyrannical powers. He states that the prerogative, because the sovereign has the consent of his subjects and uses his reason to benefit the commonwealth, is absolute and not arbitrary and is therefore clearly distinct from tyranny. A sovereign who employs true prerogative power will always look to avoid arbitrary rule and therefore, his commonwealth will always be in a state that is superior to the state of nature from which his subjects rose. Only when the sovereign begins to abuse the prerogative to enforce his own interest will the people have a right to rebel. Thus, Lockes ideas are not destabilizing to society, as his description of prerogative power and his reasoning for rebellion do not contradict.

Source:

Locke, John, and Peter Laslett. Two Treatises of Government. Cambridge: Cambridge UP, 1988. Print.

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