Chapter

Prerogative, Precedent and Power

Paul Craig

in The Golden Metwand and the Crooked Cord

Published in print February 1998 | ISBN: 9780198264699
Published online March 2012 | e-ISBN: 9780191682766 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198264699.003.0004
Prerogative, Precedent and Power

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This chapter explores the history of the prerogative from both a legal and a political perspective, arguing that the legal history of the prerogative is best understood in terms of structural constitutional review. The essence of the argument is that the courts have been forced to draw the boundaries of constitutional competence as between the executive and Parliament, and that they have consistently backed Parliament. The legal analysis is complemented by an examination of the prerogative from a political perspective. The nature of this inquiry and its purpose should be made clear at the outset. Given that the judicial focus was concerned with demarcating the respective spheres of competence of Crown and Parliament, it seems interesting, to say the very least, to examine the way in which these boundaries were being altered as a result of political developments. It is shown that, while the courts gave important judgments which strengthened the role of Parliament by adjudicating upon the extent of prerogative power, Parliament itself sought to constrain both the extent and manner of exercise of prerogative power in the 17th and 18th centuries. Its success in this venture served to alter the balance of power within the political order fundamentally.

Keywords: administrative law; prerogative power; legal history; constitutional review; Parliament; political order; courts

Chapter.  12118 words. 

Subjects: Constitutional and Administrative Law

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