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Extra-Legal Power and LegitimacyPerspectives on Prerogative$
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Clement Fatovic and Benjamin A. Kleinerman

Print publication date: 2013

Print ISBN-13: 9780199965533

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199965533.001.0001

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Lockean Prerogative: Productive Tensions

Lockean Prerogative: Productive Tensions

(p.75) Chapter 4 Lockean Prerogative: Productive Tensions
Extra-Legal Power and Legitimacy

Leonard C. Feldman

Oxford University Press

This chapter examines Locke's theory of prerogative. Lockean prerogative is the basis of a large amount of contemporary post-9/11 scholarship on emergency powers, both work presenting Locke as a normative model for the better management of discretionary crisis power and work presenting Locke more critically as the not-so-secret origin of our contemporary tangle of lawless emergency governance. It is argued that Lockean prerogative draws its power from four constitutive ambiguities or tensions: between the foreign and the domestic; between the constitutional and the extra-constitutional; between the normal and the extraordinary; and between the normative and the descriptive. That prerogative is best understood as liminal: It is a power occupying an “in-between” space and it is this liminality that accounts for prerogative's resilience. These tensions or ambiguities structure contemporary discussions of prerogative and, to an extent, emergency powers more broadly.

Keywords:   John Locke, prerogative, liminality, emergency powers

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