Aristotelian Kingship and Lockean Prerogative
[The paper delivered is in Recovering Reason (Lexington, 2010). For copyright
reasons I will not make it available online. What follows is my presentation]
Since I am the youngest contributor to Tom’s festschrift, I thought it appropriate to
deliver an undergraduate-level paper. Thank you for showing up. My paper is called “Locke
and Aristotle: Similar But Different.” I promise to bring all this around to commerce by the end.
My paper starts with an apparent similarity between Locke and Aristotle: both criticize
the rule of law, or the rule by law alone. Locke emphasizes the necessity of prerogative, saying
that “it is impossible to foresee and so by laws to provide for all accidents and necessities that
may concern the public.” Either the laws will not constrain the executive adequately or they will
forbid him to do something essential (or command him to do something absurd). Aristotle
affirms that a human being so excessively virtuous as to deserve to rule alone as an absolute king
would not even do so by law, again because there is something coarse or lacking in finesse about
the law.
So, the first part of my paper (and of my contribution to Tom’s festschrift) reexamines in
a cursory way both Locke and Aristotle in order to argue that they are addressing different
problems, or to suggest that Aristotle’s absolute kingship and Lockean prerogative are not
actually analogous, appearances notwithstanding. (I say my examination is cursory because I
examined each separately in detail elsewhere, the one in my book The Lockean Commonwealth
and the other in an article in the History of Political Thought.)
And here it is useful to distinguish between two forms that legalism can take. One is
political legalism, or the conviction that government action is justifiable only as the application
of general rules to particular cases. The other is moral legalism, which insists that moral action
itself is a matter of rule-following, or that it is senseless to speak of good character except as
conformity to some law. This sentiment strongly implies the existence of some perfect law,
which, owing to the meaning that was once attached to the word nature, we are in the habit of
calling the natural law.
Lockean prerogative is cast against the dangerous force of political legalism, a position
that is especially dangerous in the Lockean commonwealth precisely because Locke spends so
much time encouraging it. (Locke is somewhat Janus-like in this regard.) Aristotle, on the other
hand, discusses absolute kingship in order to attack moral legalism: the result of even a perfect
being’s not ruling by law is that there can be no natural law. (I think that the fact that Aristotle
answers objections to absolute kingship—that no one can be trusted with that authority—by
emphasizing and re-emphasizing the king’s (superhuman?) goodness points to the fact that he is
not discussing “real” politics here.) So, despite the apparent similarity, Locke and Aristotle are
actually engaging in very different discusses here.
This is not to say that this in and of itself points to a real disagreement regarding the
question of legalism, however. Aristotle of course recognizes the practical problems of rule by
rule (though this is not to say “rule by law,” since he would have those magistrates who act
where written rules must be set aside still think of themselves as applying a better understanding
of their city’s laws than was written down—which has an important practical result, as we’ll
see). And Locke does betray an awareness of the difficulties invovled with expressing justice in
the form of rules. Some who must be pardoned, for example, actually deserve reward rather
than mere forgiveness. If God governs by prerogative, which Locke says He does, then there
must be something defective about even the law of nature, even the divine and eternal laws, not
just human law (to use Aquinas’ schema).
In light of their agreement regarding political and moral legalism, we might be tempted to
say that prerogative and absolute kingship turn out to deal with such different concerns because
of the different rhetorical purposes of the Politics and the Two Treatises, nothing more. I don’t
think that anyone will deny the greater philosophic purpose of the Politics, even as we affirm
that the Treatises was more than just a partisan tract. Political legalism is clearly a more
practical danger than moral legalism, the bad political effects of which can be softened by
suggesting that there is a more comprehensive articulation of the moral rule that permits the
distasteful, necessary action. Moral legalism does, however, celebrate, at least implicitly,
obedience, that obedience is a real virtue, and so stands in the way of true virtue. And so
someone concerned to make his best readers happy would have to take it on.
If we are to explain the fact that prerogative is directed against a threat with immediately
apparent political consequences while absolute kingship is summoned to correct a common
misapprehension regarding the happiest life for a human being by reference to the different
purposes of their books, we must recognize that these different purposes do nonetheless reveal a
fundamental disagreement regarding the role of the philosopher. For Locke is primarily
concerned to propagate a doctrine that is useful to politics; if one does not already have some
significant doubts about the true meaning of virtue, Locke is not going to sow them; the
difficulties in Locke’s text point one to the problematic source and content of the law of nature,
not whether reasoning takes the form of identifying and applying the rule. Indeed, Locke’s
statements that are problematic for moral legalism are unconnected asides and are countered by
the fact that he uses arbitrary (by which he means “unlawful”) and irrational synonymously,
suggesting that reasoning and the application of law do indeed have something substantial in
common. So Locke is not clear or unequivocal in his opposition to moral legalism. 1
Aristotle does seek to refine the political prejudices of his audience (which means that he
must also promote them to a certain extent). But his audience is primarily the leisured and he
speaks to them primarily to educate them in how to use that leisure (for this reason he cannot
simply promote salutary prejudices).
So Locke speaks to the rational and the industrious in order to promote salutary political
prejudices. They need a simpler doctrine, not having time for more. And at first glance Locke
provides one. There must be the strict rule of clear laws, except when they are bad. Then, the
people must judge their lawbreaking executive, asking not whether the act was lawful but
whether it was good.
In Aristotle, things are not so simple, even restricting ourselves just to the question of the
rule of law. The discussion of absolute kingship does have a prosaic political implication.
Because it is impossible to legislate all the actions that a virtuous man would take such that less
virtuous men could “execute” those actions—be mere executives—we must rely on the virtue of
the magistrates. Therefore, it does not make sense to banish or to attempt to banish all discretion
from the law (as Locke must do, given who is to judge whether the prince is acting legally).
Such discretion will be present within the law. Therefore, it will not be impeachable on the basis
of the law; the magistrate who exercises it unjustly will not clearly be a lawbreaker. (I deal with
an objection that legally permissible discretion can nonetheless be impeached on the basis of law
within the paper. Simply put, such judgment relies upon virtues of character, and so does not
It was suggested that I intended this as a criticism of Locke’s capacity for self-reflection. On the contrary, the
absence of something from the Two Treatises does not mean that Locke was unaware of or unconcerned with it, and
here I suggest that Locke omitted bringing clarity to this discussion because he felt that its inclusion was not
necessary for his purposes. I question instead the judgment that this was not necessary for his purposes.
1
really serve to reduce our reliance upon a robust education scheme by substituted well-formed
institutions.)
Does Locke get around this difficulty? Can the rational and industrious keep their
magistrates in line? Regarding the legalistic side of his thought, the answer is yes. It is clear
when the prince violates the law, and in such cases, grab your musket. The problem arises with
the caveat to this rule—prerogative. For simple laws need to be violated, and in those cases the
people must judge the goodness of the act. This is not so simple. This is more than the bare
practical problem that the people must have a great deal of political knowledge in order to judge
the goodness of such an act (and distinguish it from a clever smokescreen), a problem that raises
the question of when the average citizen has the time to acquire such knowledge, of his
inclination to do so, and of what to do with things that must be kept secret. Rather, partisan,
contested questions arise. There are real disputes over what the public good demands, but
everyone is sure that their good is for the public good—everyone is certain that they know what
the law of nature demands. If Locke is correct that political society must state what the law of
nature demands clearly in positive law since most people cannot (it turns out) figure it out for
themselves, then as a practical matter the judgment of hard cases cannot be based upon some sort
of pure speculative reason—we see more disputes than conclusive arguments over what a regard
for life, liberty, and the pursuit of happiness demands politically—but will instead be based upon
a prejudice acquired in the course of living in society. It is the same in Aristotle, where laws
should be made and interpreted in light of the regime, not first principles. But Locke would have
the laws speak in terms of clear command and prohibition; such laws do not inculcate nuanced
understandings of political and ethical quandaries. Laws of the sort Locke would have do not
convey a subtle understanding of justice, such laws are necessary because men do not have such
a subtle understanding of justice by nature, and yet such an understanding is nonetheless
necessary in the Lockean commonwealth. The spirit of legalism works against political
responsibility when it is a matter of stepping outside of the law. Just witness the current state of
international law or civil libertarianism, which is mirrored by those who would justify every
violation today because some violations may be necessary.
Aristotle, to conclude, does not run up against these difficulties. There is not the harsh
division of the legal and the extralegal. One always feels as though one is just interpreting the
law, even if what is really doing the work is one’s decency or equity. Reverence for the law does
not promote legalism because the law itself is not legalistic, taking the form of bright-line rules
requiring no judgment. This might promote moral legalism. His discussion of absolute kingship
shows this to be a limited perspective, but it is not a politically unhealthy one. Because he does
not demand that the state of nature is politically relevant, he does not demand that citizens and
magistrates abandon what the learned growing up when they consider politics (a state of nature
analysis argues that one must abandon rather than refine common opinions about justice).
To return to the theme of the panel, Locke’s difficulties are caused by the need for
simplicity, eschewing reliance upon a robust moral education. He may not have had a choice—
his rational and industrious were the ascendant class. But we can appreciate the problem this
causes and the superiority of the Aristotelian solution, even if it is unavailable. Dealing with real
challenges to the regime requires precisely the sort of education that Locke’s theory is designed
to avoid reliance upon, and therefore a more elevated tone to society than his project of
economic growth fueled by unrestrained acquisitiveness would normally permit. It requires
leisure, not industry.