Prerogative Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Prerogative, according to the political philosopher John Locke, is “this power to act according to discretion for the public good, without the prescription of law and sometimes even against it.” Locke’s notion of prerogative has influenced the development and understanding of executive powers and responsibilities in modern constitutional government, and it is to Locke whom most refer when discussing this concept. Prerogative has a long, rather controversial, history and has been defined and used differently over time. As a result, it remains one of the most perplexing concepts to students of constitutional government.

The term stems from Latin praerogativa, which literally means “ask before,” which was a procedure during the Roman Republic whereby a segment of the assembly (chosen by lot) would cast their votes first and thus influence the outcome of the vote. Prerogative later became associated with the privileges and powers of feudal lords in medieval Europe (those who were asked first before all others) and eventually with those of the European monarchs, with the royal prerogative of the British Crown emerging as the most well-known example. The royal prerogative was defined as the collection of powers and privileges belonging to the British monarch exclusively and not subject to review or repeal. Prerogative was entirely discretionary and included any act that the Crown, or its ministers, exercised without any consultation of Parliament. Prerogative powers separated the monarch from everybody else, placing the king above the law. As the English jurist William Blackstone suggests, prerogative “can only be applied to those rights and capacities which the King enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects.”

In his renowned study The Constitution of England, Jean Louis de Lolme offers a list of the British Crown’s prerogative, which included granting titles of honor, coining money, performing as supreme judge or head of the Church of England, interacting with foreign nations (to include the prerogative to initiate war and sign treaties), and raising armies and navies and directing them in times of war. In exercising its prerogative, the king, accordingly, is “above the reach of all Courts of law whatever, and that his person is sacred and inviolable.” Perennial conflict arose from the prerogative existing among the most important powers and privileges of the nation, vesting them solely to the monarch subject to no other body—and on occasion violent revolt—between the Crown and Parliament over the arbitrary exercise and abuse of this power and attempts to limit it.

Over time, as the power of the monarch within the British political system decreased, the residual prerogative has become associated with the unilateral powers exercised by the ministers and other members of the executive branch within British Commonwealth countries. Similarly, scholars of the American presidency have applied this conception of prerogative to refer to unilateral executive action exercised to accomplish particular domestic and foreign policy objectives. These prerogatives, though controversial, are usually contained within the interpretive purview of the president’s powers.

In his Second Treatise, John Locke shifted the focus of prerogative away from the particular powers of the monarch to a broader framework of emergency powers within limited constitutional government. Prerogative, more specifically, emerges as a means to describe the extraordinary and extra constitutional powers exercised by a government’s executive branch in times of emergency.

Locke frames the exercise of prerogative power as a fundamental tension between a constitutional government’s need for a strong and extraordinary executive power in times of danger while also aiming to prevent the abuse of such power and bound the executive by the rule of law. Locke, among others, recognized the disadvantages that legislative bodies would have in trying to prescribe laws to meet the various contingencies the political order might encounter. Therefore, Locke suggested that, in time of danger, the executive ought exercise extraordinary powers and even act outside of the legal order to preserve it, as long as such measures were done for the public good. The uncertainty of the dangers that a government might face from war, natural disaster, or other catastrophic event led Locke to conclude that the executive must be equipped with a potentially unlimited reservoir of power to ensure the safety and survival of the state.

Locke’s expanded notion of prerogative, in essence, highlights the tension between natural and positive law in that the latter may, on occasion, be violated to realize the former. Modern political philosophers, Locke among them, suggested that self-preservation was the fundamental tenet of the natural law. His argument was that, in times of danger, the executive must be able to take discretionary actions outside of the scope of the written positive law, and violate it if necessary, to preserve oneself. Due to its seemingly unlimited and arbitrary nature and the potential for severe abuse, prerogative poses problems for constitutional government and liberal democracies that seek to limit power and protect individuals. It may, in practice, be tantamount to nothing more than a mere veil to tyranny operating on behalf of the public good.

Bibliography:

Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765–1769. Chicago: University of Chicago Press, 1979.
Cox, Richard H. “Executive and Prerogative: A Problem for Adherents of Constitutional Government.” In E Pluribus Unum: Constitutional Principles and the Institutions of Government, edited by Sarah Baumgartner Thurow, 102–122. Lanham, Md.: University Press of America, 1988.
Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution. Edited by Roger E. Michener. Indianapolis, Ind.: Liberty Fund, 1982.
Lintott, Andrew. The Constitution of the Roman Republic. Oxford: Oxford University Press, 1999.
Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press, 1988.
Lolme, Jean Louis. The Constitution of England. Edited by David Lieberman. Indianapolis, Ind.: Liberty Fund, 2007.
Pious, Richard. The American Presidency. New York: Basic Books, 1979.
“Praerogativa.” In The Oxford Classical Dictionary, edited by N. G. L. Hammond and H. H. Scullard. 2nd ed. Oxford: Oxford University Press, 1970.

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