The apparent inconsistency between Locke’s commitment to legalism and his explicit endorsement of the extra-legal power of prerogative has confounded many readers. Among those who don’t ignore or dismiss it, the common approach is to qualify the role or scope of prerogative. The article advocates the opposite approach. It argues that Locke’s legalism should be understood within the context of his oft neglected conception of political liberty in terms of self-government. This not only allows for the reconciliation of Locke’s legalism (...) with his endorsement of extra-legal powers, but also provides a fuller, more accurate account of the role of law and of political liberty in Locke’s theory. (shrink)

Moderation and liberalism are different and in some cases antagonistic concepts. In recent years, the view that Sieyès’s idea of constituent power is a moderate and liberal rendering of sovereignty has gained acceptance in intellectual history and constitutional theory literature. This claim is based on the premise that radical and illiberal readers of Rousseau’s idea of sovereignty, such as Robespierre and the Jacobins, were opposed to representing the general will (volonté générale). Thus, constituent power as the exercise of power by (...) extraordinary representatives to draft a constitution would be a liberal attempt at political moderation in the French revolution. In contrast to this liberal reading, my analysis shows that Sieyès’s idea of constituent power is an illiberal attempt at political moderation. Against moderate liberal theories, constituent power demands that the extraordinary representatives of the constituent assembly must will, deliberate, and act as if they were the people themselves. These representatives have absolute powers and the mandate to create a constitution but also the imperative to perceive and mirror the sovereign will. From a political theory approach, I conclude that constituent power is not a liberal idea but a key notion of moderate illiberalism that prevailed during the French Revolution. (shrink)

European Journal of Political Theory, Volume 21, Issue 2, Page 230-252, April 2022. The apparent inconsistency between Locke’s commitment to legalism and his explicit endorsement of the extra-legal power of prerogative has confounded many readers. Among those who don’t ignore or dismiss it, the common approach is to qualify the role or scope of prerogative. The article advocates the opposite approach. It argues that Locke’s legalism should be understood within the context of his oft neglected conception of political liberty in (...) terms of self-government. This not only allows for the reconciliation of Locke’s legalism with his endorsement of extra-legal powers, but also provides a fuller, more accurate account of the role of law and of political liberty in Locke’s theory. (shrink)