Locke on the Federative

15 Pages Posted: 18 Jan 2018

See all articles by Thomas M. Poole

Thomas M. Poole

London School of Economics - Law Department

Date Written: December 11, 2017

Abstract

This paper focuses on Locke’s analysis of the federative power, presented as a distinct juridical category separate from both the ordinary and special (prerogative) powers of the executive in that it relates to the ‘external’ capacities of the state. The operation of the federative is marked by the interplay between strategy (prudence) and law (norm). While Locke acknowledges the strategic element, he downplays the juridical dimension. This move is unconvincing. It does not fit well with Locke’s designation of treaty-making as the power’s central feature, nor with the comparatively thick account of natural law that otherwise characterises his political thought. The federative should be seen as the part of the domestic constitution through which the state’s external agency is exercised and the location of the state’s duties in respect of the jurisgenerative activities in the international sphere. As such, the way Locke buries the legal aspect of federative – through the pairing of federative and executive – is less obvious than he thought. Locke’s analysis fails to integrate the federative within a broader constitutional framework, leaving it almost entirely to the discretion of the Prince. I turn to Henry Neville for a contemporary attempt to reconcile the prudential and rule of law elements of the federative suitable for English conditions.

Suggested Citation

Poole, Thomas M., Locke on the Federative (December 11, 2017). LSE Legal Studies Working Paper No. 22/2017. Available at SSRN: https://ssrn.com/abstract=3086173 or http://dx.doi.org/10.2139/ssrn.3086173

Thomas M. Poole (Contact Author)

London School of Economics - Law Department ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

HOME PAGE: http://www.lse.ac.uk/collections/law/staff/thomas-poole.htm

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