Non-Statutory Powers in Three Regimes: Assessing Global Constitutionalism in a Structural-Institutional Context

64 International and Comparative Law Quarterly 65-102 (2015)

Hebrew University of Jerusalem Legal Research Paper Forthcoming

35 Pages Posted: 9 Dec 2019

See all articles by Margit Cohn

Margit Cohn

Hebrew University of Jerusalem - Faculty of Law

Date Written: January 5, 2015

Abstract

This article analyses the source, nature, and use of unilateral, non-statutory executive powers, frequently employed as a governance tool but rarely studied in a comparative context. Exercised in the absence of direct statutory authorization, such powers are often invoked by executives in emergency and foreign affairs contexts, but are equally central to domestic policy-making. Unilateral executive power challenges two central democratic values that support the separation of powers ideal: representation and deliberation. Different structural treatments of these powers are considered through a comparison of three constitutional regimes, those of the United States, the United Kingdom and Israel. Despite material structural differences between these systems, the emerging patterns are similar enough to support the argument that direct law-making by the executive is an unavoidable element of the political sphere. Developing a template for comparison analysis, this article shows that a pattern of functional convergence has emerged, unsupported by overt transplantation or borrowing between these systems. The results set a possible challenge to the growing recognition of global world constitutionalism, at least in structural-institutional contexts.

Keywords: comparative public law, convergence, divergence, executive power, global constitutionalism, legal transplants, non-statutory power, prerogative, presidential power

Suggested Citation

Cohn, Margit, Non-Statutory Powers in Three Regimes: Assessing Global Constitutionalism in a Structural-Institutional Context (January 5, 2015). 64 International and Comparative Law Quarterly 65-102 (2015); Hebrew University of Jerusalem Legal Research Paper Forthcoming. Available at SSRN: https://ssrn.com/abstract=3498752 or http://dx.doi.org/10.2139/ssrn.3498752

Margit Cohn (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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