Lawful Power

(2017) 15 New Zealand Journal of Public and International Law 1-19

16 Pages Posted: 28 Nov 2018

Date Written: June 1, 2017


This is the edited text of the 2016 Robin Cooke Lecture, delivered at Victoria University of Wellington on 15 December 2016.

It is a popular idea that public agencies (or perhaps only executive agencies) cannot lawfully do anything unless it is positively authorised by law. Through a discussion of the prerogatives of the Crown, of Parliament and of the courts in the United Kingdom, I argue to the contrary. Public bodies may legitimately do anything that serves the purposes for which they exist, unless it is prohibited by law. Such actions are exercises of lawful power, insofar as they are not unlawful. The Lecture discusses the English High Court's ruling in the case of R (on the application of Miller and another) v Secretary of State for Exiting the European Union. An Epilogue explains the Supreme Court decision in Mrs Miller's case and its bearing on the topic of the Lecture.

Keywords: Legal power, constitutional law, prerogative, rule of law

Suggested Citation

Endicott, Timothy A.O., Lawful Power (June 1, 2017). (2017) 15 New Zealand Journal of Public and International Law 1-19. Available at SSRN:

Timothy A.O. Endicott (Contact Author)

University of Oxford - Faculty of Law ( email )

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

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