Constitutional Logic

University of Toronto Law Journal, Vol. 53, pp. 201-216, 2003

14 Pages Posted: 4 Jul 2008  

Timothy A.O. Endicott

University of Oxford - Faculty of Law

Date Written: July 3, 2008

Abstract

A review article on Mark Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing 2001). I argue against Elliott's view that, as a matter of logic, judges cannot impose duties on the exercise of statutory powers without acting inconsistently with the legislation, unless Parliament intended the imposition. I also argue against the 'ultra vires theory' (the theory that the constitutional justification for judicial review of the exercise of statutory powers is that the courts are giving effect to limitations that were imposed by Parliament when it granted the power). It is the common law of the constitution, and not Parliament, that gives the courts the responsibility of imposing the requirements of the rule of law on the exercise of statutory powers. The ultra vires theory, even in Elliott's sophisticated modification, shows the influence of a popular misconception of the role of Parliament in the United Kingdom constitution.

Keywords: jursiprudence, ultra vires, judicial review

Suggested Citation

Endicott, Timothy A.O., Constitutional Logic (July 3, 2008). University of Toronto Law Journal, Vol. 53, pp. 201-216, 2003. Available at SSRN: https://ssrn.com/abstract=1155022

Timothy A.O. Endicott (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

Paper statistics

Downloads
290
Rank
82,619
Abstract Views
1,554