Prerogative and the Rule of Law in John Locke and the Lincoln Presidency

Abstract

Locke's Second Treatise of Government argues for the rule of law as just and rightful politics, not only in the fundamental legislation that is the constitution but also in regular governance by the legislature. Locke also argues for executive prerogative, the power of doing good without or even against law during contingency and necessity. Rule by legislation and rule by prerogative each preserve the political community and reflect its foundation out of the state of nature. But they do not easily coexist in the constitution, which provides no means to judge the rightful use of prerogative. President Lincoln's strong, discretionary actions during the crisis of the Civil War illustrate Locke's argument about prerogative's fundamental importance and its problematic relation to ordinary lawfulness. However, as Lincoln recognized, both the Constitution and Congress formally provided for an executive power that was remarkably compatible with the rule of law—and that thereby responded to the Lockean problem.