Legislative Capacity, Executive Action, and Separation of Powers

2021 ◽  
pp. 17-42
Author(s):  
Margit Cohn

This chapter provides the basis of the model advanced in the book. Based on the internal tension model, governing constitutionalism-at-large, the chapter submits that the executive is best viewed as straddling the line between subjection to law and dominance beyond law. This is no ‘paradox:’ embodying one of the tensions ingrained in constitutional law, the executive draws on an irresolvable tension between its role as executor of law, under the separation of powers ideal, and its function as manager, or dominant decision-maker in the political sphere, in which it acts above and beyond the law. Under the internal tension model, normative theory can be better expounded, and the extent of required constraints over excessive power can be better addressed. The chapter discusses, and rejects, three models of the executive branch, all of which are based on hierarchical and dichotomous thinking. The subservient executive model connotes full supremacy of the constitution and legislation over the executive; the imperial executive model draws on a vision of executive supremacy; and the third, bipolar model offers a vision of alternating modes of operation. All are set aside in favour of a model that recognizes the internal tension which underlies executive action.


2021 ◽  
pp. 3-16
Author(s):  
Lisa Webley ◽  
Harriet Samuels

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter provides an introduction to public law. Public law regulates the relationships between individuals (and organisations) with the state and its organs. Examples include criminal and immigration law and human rights-related issues. Public law is made up of a number of key principles designed to ensure a healthy, representative, law-abiding country that strikes a balance between the needs of the state and the needs of its citizens. Each of these principles is discussed in turn: the rule of law, separation of powers, representative democracy, supremacy of Parliament, limited and responsible government, and judicial review executive action by the courts.


2007 ◽  
Vol 101 (2) ◽  
pp. 209-222 ◽  
Author(s):  
BENJAMIN A. KLEINERMAN

Even as he recommends it as the extra-constitutional solution to the inefficiencies and insufficiencies of legislative constitutionalism, Locke'sSecond Treatiseis far more aware of the dangers of executive prerogative than the more optimistic accounts in the recent scholarship have appreciated, making Locke pessimistic about the permanent sustenance of legislative constitutionalism. This pessimism stems from Locke's recognition that the people are far too constitutionally passive for the vigilance essential to ‘umpire’ well the necessity of executive action outside the laws. In fact, liberalism itself can contribute to such passivity: the people are content to allow an executive to act with a significant degree of discretion outside the laws so long as those actions do not interfere with their short-term interest in security and prosperity. Understanding Locke's pessimism regarding popular vigilance casts into new light his argument for a legislative constitutionalism based on fundamental laws that establish a clear separation of powers. Such fundamental laws provide legislative elites with the constitutional ‘signals’ by which they can alert the otherwise slumbering people about an executive intent on usurpation and tyranny.


2017 ◽  
Vol 45 (4) ◽  
pp. 597-625 ◽  
Author(s):  
Janina Boughey

It is frequently said that Australian administrative law does not have, and cannot accommodate, a doctrine of deference. These statements, from judges and commentators, tend to cite the High Court's decision in Corporation of the City of Enfield v Development Assessment Commission1 as authority. In that case, the High Court of Australia indicated that Australia's strict separation of powers, as manifested by the legality/merits distinction, does not allow courts to defer to administrative bodies in determining the meaning of ambiguous statutory provisions. Since Enfield, there have been considerable developments in the application, and theorisation, of deference across the common law world. This article examines developments in the UK and Canada, and argues that they show that there is no single ‘doctrine’ of deference – deference is applied in administrative law in a range of ways. I argue that some of the ways in which Canadian and UK courts apply deference are not dissimilar from the principles Australian courts already apply in reviewing executive action. I argue that Australian law may benefit from greater attention to, and wider application of, these deferential principles, in order to curb judicial intrusion into administrative discretion.


Author(s):  
Lisa Webley ◽  
Harriet Samuels

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter provides an introduction to public law. Public law regulates the relationships between individuals (and organizations) with the state and its organs. Examples include criminal and immigration law, and human rights-related issues. Public law is made up of a number of key principles designed to ensure a healthy, representative, law-abiding country that strikes a balance between the needs of the state and the needs of its citizens. Each of these principles is discussed in turn: the rule of law, separation of powers, representative democracy, supremacy of Parliament, limited and responsible government, and judicial review executive action by the courts.


Author(s):  
Margit Cohn

The introduction to the book offers a short overview of the contents of the book. This book is a treatise on the executive branch, which addresses, theoretically and comparatively, the nature of the executive as a body that is the dominant player in the public and political sphere but is also required, under the separation of powers principle, to be subservient to the law made by legislature according to the constitution of a polity. Three arguments are made in the book. First, to grasp the nature of executive power, one should reject hierarchic accounts of the public sphere: searches for the wielder of the final word should be replaced by a model which rests on networks and inter-branch tensions. Secondly, under this ‘internal tension’ vision of constitutionalism, the executive branch is to be considered as concurrently subservient to law and dominant over it. Finally, much of public law is shaped in ways that enable this seeming contradiction. The thirteen forms of ‘fuzzy’ law presented in the book, generated by constitutions, legislators, and executives, enable the executive to act relatively unfettered without losing the legitimacy arising from the existence of formal law, which, in effect, sets limited constraints on executive action. Ranging from open-ended or semi-written constitutions to unapplied legislation, these forms of legality span both constitutional and administrative aspects of public law. The introduction briefly discusses the structure of the book, which is divided into four parts.


Author(s):  
Daintith Terence ◽  
NG Yee-Fui

This chapter discusses the executive branch in Australia. It demonstrates the relationship between the explicit terms of the Australian Constitution and the way the Executive is actually organized. It also identifies the unwritten but constitutionally salient features of executive organization, and how they relate to broader constitutional values such as responsible government, effectiveness, and legality. The chapter highlights the various ways of controlling Executive action, from the traditional parliamentary and judicial channels, to mechanisms such as party structures, departmental reporting, and accounting obligations, and centrally imposed budgetary and financial disciplines, alongside scrutiny by integrity bodies.


2016 ◽  
Vol 51 (4) ◽  
pp. 99-134
Author(s):  
Jin Yeong Park
Keyword(s):  

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