Locke, liberty, and law: Legalism and extra-legal powers in the Second Treatise
| Author | Assaf Sharon |
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| DOI | http://doi.org/10.1177/1474885119871643 |
| Subject Matter | Articles |
Article EJPT
Locke, liberty, and law:
Legalism and extra-legal
powers in the
Second Treatise
Assaf Sharon
Tel Aviv University, Israel
Abstract
The apparent inconsistency between Locke’s commitment to legalism and his explicit
endorsement of the extra-legal power of prerogative has confounded many readers.
Among those who don’t ignore or dismiss it, the common approach is to qualify the
role or scope of prerogative. The article advocates the opposite approach. It argues that
Locke’s legalism should be understood within the context of his oft neglected conception
of political liberty in terms of self-government. This not only allows for the reconciliation
of Locke’s legalism with his endorsement of extra-legal powers, but also provides a fuller,
more accurate account of the role of law and of political liberty in Locke’s theory.
Keywords
Emergency, law, liberty, Locke, prerogative
Laws, when prudently framed, are by no means subversive but rather introductive of
liberty; for (as Mr Locke has well observed) where there is no law there is no freedom.
(William Blackstone, 2016: 86)
Introduction
In the wake of the attacks of September 11, 2001, political theorists have been
revisiting Locke’s theory of prerogative in order to draw theoretical as well as
practical lessons. As a champion of legalism, or restricting the exercise of political
Corresponding author:
Assaf Sharon, Philosophy Department, Tel Aviv University, P.O. Box 39040, Tel Aviv 6997801, Israel.
Email: assafsharon@post.tau.ac.il
European Journal of Political Theory
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DOI: 10.1177/1474885119871643
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2022, Vol. 21(2) 230–252
power to the execution of the law, Locke’s conception of necessary deviations from
the law holds the promise of providing a useful framework for democratic socie-
ties, subscribing to the rule of law, faced with exceptional circumstances. But rec-
onciling Locke’s notion of prerogative with his commitment to legalism is quite
challenging. “[A]ll the power the government has, being only for the good of the
society,” Locke says, “ought to be exercised by established and promulgated laws,”
(Locke,1988 [1689]b: 137) from which “No man in civil society can be exempted”
(Locke,1988 [1689]b: 94).
1
Locke defines political power as “a right of making
laws” and of “employing the force of the community in the execution of such
laws” (Locke,1988 [1689]b: 3) and he identifies legitimate political authority with
one who “makes the laws the bounds of his power” (Locke,1988 [1689]b: 200).
2
Prerogative, on the other hand, is the “power to act according to discretion, for the
public good, without the prescription of the law, and sometimes even against it”
(Locke,1988 [1689]b: 160). It was this apparent inconsistency that prompted
Shaftsbury’s nemesis, Halifax, to scold supporters of prerogative who “look like
counsel retained by the prerogative against your old friend Magna Carta” (cited in
Ashcraft, 1986: 480).
It is therefore hardly surprising that “most interpreters pass over in silence”
3
Locke’s account of prerogative, in spite of the fact that he dedicates an entire
chapter of the Second Treatise to it, while others dismiss it as “yet another example
of Locke’s infamous inconsistencies” (Fatovic, 2004: 277). Among those who have
tackled the issue and tried to reconcile it with Locke’s legalism, the prevalent
strategy has been to restrict his endorsement of prerogative in various ways. The
aim of this article is to propose the opposite approach. I will argue that the appar-
ent inconsistency between Locke’s legalism and his recognition of extra-legal
powers should be addressed not by modification or qualification of the latter,
but by a reinterpretation of the former.
I begin in the second section by presenting the tension between Locke’s legalism
and his account of prerogative as part of a broader question, namely his persistent
positing of two potentially inconsistent standards for political legitimacy: law and
the public good. This comes up in his discussion both of prerogative and of legit-
imate resistance of political authorities – two issues which pertain to the limits of
legitimate authority and law. Then, in the third section, I will present an account of
Locke’s legalism as instrumentally conducive to the protection of individual free-
dom by curtailing encroachments upon it by government. I will explain why, taken
on its own, this account of legalism is not compatible with prerogative. In the
fourth section, another account of legalism will be developed, according to which
its instrumental role in limiting abuses of power should be understood within the
context of Locke’s oft neglected theory of the consensual formation of the body
politic and his related conception of political liberty in terms of self-government.
I will argue that this account not only allows recognition of extra-legal powers,
but is also more faithful both to Locke’s philosophical concerns and to his text.
Finally, in the fifth section, I will reflect on some consequences of the proposed
interpretation of Locke’s view.
231Sharon
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