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Constitutional Authority and Judicial Review: A Common Law Theory of Ultra Vires
The Crown is an arcane legal figure, frequently misunderstood. Rather than shying away from the ‘clanking of medieval chains’, however, we must explain it. This begins with a basic analysis of institutions and the powers they wield. Applying the concept of ‘institutional facts’ drawn from John Searle’s social ontology and Neil MacCormick’s institutional theory of law, this thesis builds a model of constitutional authority that can be used to answer the question posed above. The result is a greater emphasis on the concept of office and official powers, which suggests a vires-based account of judicial review. This differs from traditional explanations of the supervisory jurisdiction, however, in several respects. First, it is based on a fundamental account of constitutional authority, which our unwritten constitution entails a contingent relationship only with legislative intention. Secondly, for this reason, ultra vires review applies to the Crown’s non-statutory powers. Thirdly, when applied to Parliament, the model of authority it rests on entails that Parliament has limited vires which may, in appropriate cases, be amenable to judicial control
.History
Pagination
335Department/School
Faculty of LawPublisher
Darwin College, University of CambridgeRepository Status
- Restricted