Of Prerogative

Chapter 14 introduces the most pragmatically significant concept in Locke's theory of government: prerogative. The legislative cannot anticipate every situation; the executive, entrusted with the daily work of governance, must sometimes act without specific legal authority — and in genuine emergencies, may have to act against the letter of existing law — for the public good. This discretionary executive power Locke calls prerogative, and he insists it is an unavoidable feature of any real government.

In the early history of governments, Locke argues, when communities were small and the legislative was largely in the hands of the executive, prerogative was very large — because explicit law was very thin. Over time, as governments matured and the legislative accumulated experience of executive abuse, more and more areas of prerogative were brought under explicit legal regulation. Locke argues that every such narrowing is a gain for the people: when prerogative is brought under law, the people's rights become more secure. The claim sometimes heard — that bringing prerogative under law represents an encroachment on the executive — has it exactly backward.

But prerogative cannot be entirely eliminated, because emergencies are real and law is necessarily general. The check on prerogative abuse is, ultimately, not legal but political: the people's judgment of whether the executive has used discretionary power well or badly. A good executive who uses prerogative for the genuine good of the community will find the people unconcerned. An executive who uses prerogative to enrich himself, favor his allies, or oppress the people will find them increasingly resistant — and, as Locke will argue in chapter 19, may find them withdrawing the trust on which his power rests.