this case, Locke states, that dispute may emerge between the executive and the legislature; rule by legislation and rule by prerogative each preserve the political community and reflect its foundation out of the state of nature. Therefore, one may argue that therefore, the executive and the legislature do not easily coexist in the constitution, furthermore providing no means to judge the rightful use of prerogative.
Others may consider Locke’s power to act outside of normal law as entirely extra- constitutional—its foundation is in natural law, prior to positive law—a natural power. In this way, prerogative is not a grant of the people to the executive in the social contract, embedded in a constitutional structure, but a natural power that persists in civil society.
Therefore one may contend that, in effect that only a countervailing natural force can restrain extralegal power; in this way the manifestation of this force may not be under the authority of the legislative as the representation of the people. A number of counteracting forces may prevent such a body from fully defining such uses of prerogative in order to assert its use beyond, or without the rule of normative law. The powers of the prerogative under the executive are only at balance when the use of prerogative can be clearly defined; thus significantly limiting the scope of power of the legislative in respect to that of the executive.
It is true that Locke’s work is still highly relevant today, and plays a key role in understanding the modern use of prerogative powers at the behest of the executive; Lockean prerogative theory is the basis of a large amount of contemporary scholarship and one may appreciate the echoes of these constitutive ambiguities in the contemporary theory and obdurate practice of emergency powers. There are a number of key theorists regarding this approach to the assessment of the use of prerogative by the executive, allowing an expansive insight into the practice of Lockean theory in modern society.
Citing Locke directly, American political scientist Jack Goldsmith discusses the mobilisation of Lockean theory during post 9-11 contemporary policy debate during the Bush administration of the early 21st century. Such declarations of crisis powers also operate in the ambiguous space between the legal and the extra-legal, and were central to most of the subsequent emergent contemporary debate and literature on the ‘legality’ of extra-legal powers.
In conclusion, although Locke makes an effort in order to charge the legislature with some degree of authority over that of the executive upon the practice and enforcement of prerogative powers, th
