Executive discretion beyond statute is justified by law’s unavoidable incompleteness

Evidence

This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe. — John Locke, Second Treatise of Government, 197

Categorization

• DEFINE: Locke’s formal definition of prerogative as discretion exercised for the public good without or against the law.
• XREF: Connects to later American debates over executive power and inherent Article II authority in the reader’s legal systems course. — connects to: Foreign affairs cannot be governed by fixed antecedent laws — John Locke, Second Treatise of Government, 184; Fixed legal rules beat discretionary state power even when imperfect — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin: The Making…, 135; Legal uncertainty creates disputes, litigation, and judicial discretion (+6 more)

Broader Connections

• Legal indeterminacy is inherent and requires a justified role for conscience #expands (0.85) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 786
• Fixed legal rules beat discretionary state power even when imperfect #contradicts (0.82) — Philip Mirowski & Dieter Plehwe (eds.), The Road from Mont Pèlerin, 135
• Legal uncertainty creates disputes, litigation, and judicial discretion #qualifies (0.72)
• Statutory interpretation problems usually involve vagueness, not ambiguity #qualifies (0.72) — Frederick Schauer, Thinking Like a Lawyer, 689