- Locke and the Challenges of Crisis Government
There is a widely experienced tension between liberal democracy and the ability to confront crises.1 A doctrine of rights asserts that governments may not treat people in whatever way they find most expedient; that governments can and should agree to respect rights, then, implies that less expedient courses of action do not require an abandonment of the fundamental purposes of government. Wherever the ordinary modes of government are perceived to be at odds with these purposes, there the rhetoric of crisis government becomes evocative and so there the problem of crisis government arises. People may disagree what these fundamental purposes are, of course, but this is to recognize that whether a situation constitutes a genuine crisis or not depends in part upon the regime.2 Liberal democracy has an especially difficult time with crises because its justifying doctrine places a respect for rights among the fundamental purposes of government. In a sense liberal democracy is, in its very conception, opposed to crisis government.3
This opposition does not eliminate the reality of crises, however. The ordinary modes of government do not become adequate to the protection and promotion of a regime's ends simply because that regime has declared its hostility to extraordinary modes. The reality of liberal democracy is that its hostility to crisis government makes crises that much more extraordinary and so makes the rhetoric of crisis government that much more potent.
Discomfort with the liberal response to exigency has stimulated an increased interest in John Locke's doctrine of prerogative.4 Some scholars worry that the liberal difficulty in dealing with crises will result in the people's abandoning core liberal principles. Others see the fecklessness of some such supposed principles and worry that essential actions will not be taken. Locke affirms both the real necessity for occasional deviations from normality and the importance of not permitting this to change what is normal. All parties can therefore find something in Locke to provide academic and authoritative respectability for their rhetorical positions.
This turn to Locke for insight into the problems faced by liberal democracies leads some to seek immediate application to the problem of terrorism. Yet Lockean prerogative is integrated into the entire Lockean commonwealth. We may call our democratic republic "Lockean" to the extent that it is designed to address the same problems and to the extent that it embodies Locke's solution to the theologico-political problem.5 Our system of government is not, however, the Lockean commonwealth. I will leave for another place the translation of Locke's insights regarding the rule of law into the language appropriate for American government. In this paper I wish to argue for the inapplicability of Lockean arguments to the debates characteristically arising from our constitutional system.
Locke and Prerogative
One of Locke's more quoted sentences from the Second Treatise of Government is, "Where-ever Law ends, Tyranny begins." Usually omitted is his unitalicized qualification, "if the Law be transgressed to another's harm."6 The contrast between the two sentiments clarifies the Lockean doctrine of prerogative.7
The first conveys Locke's position as a tireless defender of the rule of law, in the sense of legislative supremacy: no one should be subject to the coercive power of the commonwealth except pursuant to the promulgated law of the legislature; executive power is exhaustively defined as the application of law. Tyranny and unlawful executive action seem synonymous.
[The Supream Executor of the Law] has no right to Obedience, nor can claim it otherwise than as the publick Person vested with the Power of the Law, and so is to be consider'd as the Image, Phantom, or Representative of the Commonwealth, acted by the will of the Society, declared in its Laws; and thus he has no Will, no Power, but that of the Law. But when he quits this Representation, this publick Will, and acts by his own private Will, he degrades himself, and is but a single private Person without Power, and without Will, that has any Right to Obedience.8
Those who represent the force of the community are not the rulers...