Medieval chains, invisible inks: On non-statutory powers of the executive

Margit Cohn*

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

10 Scopus citations

Abstract

This article examines non-statutory executive powers, which are commonly employed in the modern state but rarely studied as a distinct concept. The article assesses three treatments of these powers available in current English public law - prerogative, common law powers which rely on analogies between the state and legal persons, and judicial review - and argues that they fail to provide a proper balance between legality and need. Royal prerogative connotes a shrinking reservoir of ancient powers, while non-statutory powers respond to unexpected futures and statute's intrinsic eventual failings. Analogies to legal persons fail to address the particularities of executive powers. Judicial review provides only a partial solution, since absence of parliamentary approval is not, in itself, ground for special treatment of executive action. The author joins calls for theoretization of public law and advances a model of executive powers that draws on a composite theory of the executive branch and its functions.

Original languageAmerican English
Pages (from-to)97-122
Number of pages26
JournalOxford Journal of Legal Studies
Volume25
Issue number1
DOIs
StatePublished - Mar 2005
Externally publishedYes

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