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Constitutionalism And Contingency: Locke’s Theory Of Prerogative

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Abstract:

Locke’s endorsement of prerogative, the power of the executive to exceed positive laws in emergencies, seems to contradict his political and theoretical aims in writing the Two Treatises of Government, particularly his vindication of the rule of law in a constitutional government. However, this article argues that prerogative and the rule of law are consistent in the ultimate ends that they serve, in spite of their significant differences as means. Prerogative is essential to the realization of the most fundamental duties of government, including the preservation of society, because unforeseeable contingencies make it difficult and even counter-productive to rely exclusively on juridical means of fulfilling these duties. Prerogative compensates for the shortcomings of the law without abandoning the principles of legality altogether by allowing the executive to exercise extra-ordinary powers in accordance with the highest law of all: the good of the people as defined by the laws of nature.

Document Type: Research Article

Affiliations: Dept. of Political Science, Vassar College, Poughkeepsie, NY 12604- 0260, USA., Email: clfatovic@vassar.edu

Publication date: January 1, 2004

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