Democratic Political Theorists
John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation, positive law set down by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations the Crown retained a prerogative “power to act according to discretion for the public good, without the prescription of the law and sometimes even against it.”[13] The prerogative “can be nothing but the people’s permitting their rulers to do several things of their own free choice where the law is silent, and sometimes too against the direct letter of the law, for the public good and their acquiescing in it when so done.”[14]
Properly the prerogative was exercisable only for the public good. But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. When one government has utilized prerogative powers for the public good, a successor may retain the habit or resort to such powers, utilizing them for a less worthy purpose.[15] Who shall judge the need for resorting to the prerogative, and how may its abuse be avoided? Here Locke, too, readily admits defeat, suggesting that “the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven.”[16]
Rousseau also assumed the need for temporary suspension of democratic processes of government in time of emergency:
“The inflexibility of the laws, which prevents them from adapting themselves to circumstances, may, in certain cases, render them disastrous, and make them bring about, at a time of crisis, the ruin of the State....
“It is wrong therefore to wish to make political institutions so strong as to render it impossible to suspend their operation. Even Sparta allowed its laws to lapse.
“... If ... the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to nominate a supreme ruler, who shall silence all the laws and suspend for a moment the sovereign authority. In such a case, there is no doubt about the general will, and it is clear that the people’s first intention is that the State shall not perish. Thus the suspension of the legislative authority is in no sense its abolition; the magistrate who silences it cannot make it speak; he dominates it, but cannot represent it. He can do anything, except make laws.”[17]
Rousseau did not fear the abuse of the emergency dictatorship or “supreme magistracy” as he termed it. It would more likely be cheapened by “indiscreet use.”[18]
He would rely upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship:
“However this important trust be conferred, it is important that its duration should be fixed at a very brief period, incapable of being ever prolonged. In the crises which lead to its adoption, the State is either soon lost, or soon saved; and, the present need passed, the dictatorship becomes either tyrannical or idle. At Rome, where dictators held office for six months only, most of them abdicated before their time was up. If their term had been longer, they might well have tried to prolong it still further, as the decemvirs did when chosen for a year. The dictator had only time to provide against the need that had caused him to be chosen; he had none to think of further projects.”[19]
Rousseau was unwilling to rely upon an “appeal to Heaven.”
John Stuart Mill concluded his ardent defense of representative government with a shattering aside: “I am far from condemning, in cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship.”[20] This is not a loose usage of the term “dictatorship,” but a forthright support of a grant of “absolute power” to the dictator.
Just as in political theory the nineteenth century liberals neglected adequately to provide for the problems which war creates, so also in their economic theory they ignored the dislocations of a war period. In his study of war in the nineteenth century,[21] Edmund Silberner has shown how the liberals’ repugnance to the destructiveness of war, their conviction of its immorality and stupidity, coupled with their faith that the economic and cultural bonds which would be created among nations by extensive free trade would prevent future wars, caused them to neglect adequate theoretical treatment of the problem of war in their economic thought. Silberner points out, for example, that in his chief work, Elements of Political Economy (1821), James Mill virtually does not deal at all with war.[22] And Mill’s distinguished son is brief on the subject of war. John Stuart Mill, according to Silberner’s interpretation, seemed to admit that virtually everything that can be said on this theme had already been expressed before him.[23]
Thus do democratic political theorists tacitly admit the existence of a fatal defect in any system of constitutional democracy: Its processes are inadequate to confront and overcome emergency.