The Jury Talks Back

4/14/2009

Presidential Prerogative

Filed under: Uncategorized — Fritz @ 8:28 pm

Locke’s doctrine of prerogative goes even further.  It is not confined to foreign affairs [i.e., the federative power].  He argues that, because it is impossible to foresee all accidents and because laws, if executed with inflexible rigor, may cause unintended and unnecessary harm, the executive must be permitted to do “many things… which the laws do not prescribe.”  Indeed, prerogative includes the power to act against law.  It covers situations where laws do not yet exist (prelegal), where laws must be ignored (antilegal), and where there can be no law (alegal).  Furthermore, Locke insists that prerogative is “undoubted,” by which he apparently means that no common citizen and no sensible lawyer or theorist questions the authority of princes-indeed, their responsibility-to transcend law, or to proceed in its absence, in order to serve the public good.

-Robinson, Donald L.  “Presidential Prerogative and the Spirit of American Constitutionalism.”  The Constitution and the Conduct of American Foreign Policy.  Ed. David Gray Adler and Larry N. George.  University of Kansas Press, 1996.  114-132.


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