[hist-analytic] Prerogatives and Law

Baynesr at comcast.net Baynesr at comcast.net
Sat Aug 21 07:19:23 EDT 2010



The notion of equity in the individual case insofar as it bears upon the role of law can be compared with the notion of prerogatives . Locke understands prerogatives as involving the permission of citizens for the sovereign to make decisions law does not address; but it may, also, involve exceptions to following the law. 



For prerogative is nothing but the power of doing public good without a rule. [Locke (1762) p. 98] 

A Supreme Court judge may legislate from the bench, but never is he or she permitted to disobey the law. This is the chief difference between judicial legislation and working outside the Constitution. 

Steve Bayne 
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