Thursday, February 2, 2012

Locke on Executive Power

In Search of the Republic--32

Locke devotes much less attention to the executive than to the legislative offices. He notes first that the legislature should not meet perpetually, but disassemble and live subject to the laws they have enacted. Moreover, temptations of power require that the execution of laws be placed in different persons than those who enacted the laws:

"THE legislative power is that, which has a right to direct how the force of the common-wealth shall be employed for preserving the community and the members of it. But because those laws which are constantly to be executed, and whose force is always to continue, may be made in a little time; therefore there is no need, that the legislative should be always in being, not having always business to do. And because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons, who have the power of making laws, to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making, and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government: therefore in well ordered commonwealths, where the good of the whole is so considered, as it ought, the legislative power is put into the hands of divers persons, who duly assembled, have by themselves, or jointly with others, a power to make laws, which when they have done, being separated again, they are themselves subject to the laws they have made; which is a new and near tie upon them, to take care, that they make them for the public good."

According to Locke, the need for the enforcement of laws while the legislature is not in session gave rise to the creation of the executive:

"But because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or an attendance thereunto; therefore it is necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated."

The executive is to rule according to the law, no according his own will. To rule according to his own will is the very definition of arbitrary power that republicanism opposes.

"He has no will, no power, but that of the law."

According to Locke, the executive possesses the authority to act on its own initiative in the public interest whenever the law is silent. He calls this the prerogative. Laws cannot foresee every contingency, so the executive must enjoy some leeway.

" This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe."

The legislature when it does meet can then make it will know regarding whatever prerogative actions taken by the executive.

According the Locke, the legislature meets in conformity with the directions of the original constitution regarind the frequency of meetings. In the context of England's mixed monarchy,  Locke acknowledges the prerogative of the king to call into session the legislature when public exigencies require it. But if the executive tries to prevent the meeting of the legislature, he has put himself in a state of war with the people.

"It may be demanded here, What if the executive power, being possessed of the force of the common-wealth, shall make use of that force to hinder the meeting and acting of the legislative, when the original constitution, or the public exigencies require it? I say, using force upon the people without authority, and contrary to the trust put in him that does so, is a state of war with the people, who have a right to reinstate their legislative in the exercise of their power: for having erected a legislative, with an intent they should exercise the power of making laws, either at certain set times, or when there is need of it, when they are hindered by any force from what is so necessary to the society, and wherein the safety and preservation of the people consists, the people have a right to remove it by force. In all states and conditions, the true remedy of force without authority, is to oppose force to it. The use of force without authority, always puts him that uses it into a state of war, as the aggressor, and renders him liable to be treated accordingly."

This discussion of the abuse of the prerogative transitions into the final sections of his Treatise dealing with usurpation, tyranny, and the right of revolution.

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