The proportionality exam as developed by the German Constitutional Court expresses the idea that constitutional rights cannot be overruled neither by other constitutional rights nor public interests. Instead, colliding rights and public interests should be satisfied as factually and legally possible. The chapter defends that the integrated proportionality test, which analyzes suitability, necessity and proportionality in its narrow sense, while including a modulation of the intensity of the scrutiny, may become a powerful adjudication device. It allows for a nuanced implementation of the three subprinciples of the proportionality exam, enabling courts to level the ground for disadvantaged groups. To show the usefulness of the modulated exam in dealing with structural inequality in Latin America, two cases involving political rights decided by the Inter-American Court of Human Rights (Castañeda Gutman and Yatama v. Nicaragua) are examined.

This chapter aims to analyze one aspect of the proportionality test in the case law of the Brazilian Supreme Court: its use as a tool for deciding cases involving socioeconomic rights. If these rights are one of the core elements of a transformative constitution, using the proportionality test to decide these cases raises the question of its transformative potential. We argue that there are several reasons for concluding that proportionality does not play a transformative role in Brazil. Some of these reasons are related to the general debate on the transformative potential of litigation; others are related to how the Brazilian Supreme Court uses the proportionality test, which could be summarized as follows: First, the Court has often used the proportionality test as a rhetorical device only; second, due to peculiarities of the decision-making process of the Court, proportionality has never been employed by the majority of its judges; third, in the realm of socioeconomic rights, the role of proportionality has been frequently undermined by other types of reasoning.

This chapter discusses how customary international law enters the sphere of EU law and to what extent it determines the relationship between the EU institutions, its member states and individual persons. Against this background, it is examined how customary international law is integrated into the EU legal order, what status it enjoys within that legal order, how it can be applied by EU institutions and whether it can serve as a benchmark for judicial review. Assuming that EU law is an autonomous domestic legal system, these questions are discussed from the perspective of EU constitutional law. Here it is argued that the Court of Justice of the European Union, in evaluating these issues, focusses too much on the idea of the autonomy of EU law. In order to provide provisions of customary international law with practical effect the validity of EU law must also be able to be reviewed on the basis of international law standards.

This chapter explores the emergence (not always explicit), the uses and the misuses of proportionality analysis during a crucial period of Peruvian democracy: the transition of the 2000s, following the collapse of the Fujimori regime. The history of the principle of proportionality in Peru is associated to the development of judicial review and the expansion of constitutionalism. Its increasing presence in judicial reasoning reveals progress in terms of the effectiveness of constitutional rights and the defense of democratic institutions, but also an alarming trend toward its formalistic use. Since the Constitutional Tribunal has been the main actor behind this process, the chapter mainly focuses on its decisions, but some decisions by the Supreme Court and by administrative courts are also covered, given its recurrent use by the judiciary at large and its role in decentralized judicial review, especially in the context of ordinary criminal procedures where the legality of pretrial detention is examined.

Assuming that effective governance refers to the state’s regulatory powers over private natural and legal persons, it is fair to say that it has been the poor cousin of constitutionalism. Liberal constitutional thought has been largely preoccupied with the need to restrain executive power rather than to justify it.1 That was true first of its focus on royal prerogative power, later of its antagonism toward rule by executive decree or legislation, and into the twentieth century of its uncertain aversion to regulation. Those theorists and public lawyers that resisted that narrative of ‘constraint’, predominantly on the social democratic left, would for the most part choose the language of democracy as their contrarian justificatory framework.2 The contest has similarly played out across the twentieth century in British constitutional thought through an argument between parties who align themselves, roughly put, with one of two supposedly competing principles at the core of the British constitution: the sovereignty of Parliament and the rule of law.3 None of the parties to that dispute are concerned to make the case for executive power per se.

The first challenge in understanding the courts’ role in unwritten amendments is definitional. “Unwritten amendments” could be understood as overlapping with, but not identical to, amendments to an “unwritten constitution.” Or they could be amendments to the written constitution that leave no trace on the text of the written constitution. In this chapter, the author focuses on the latter in the hopes that it will illuminate the role of the courts. The undeniable reality is that at various times, the Constitution, or various provisions of the Constitution, has been understood in different ways. When those understandings might be considered “unwritten amendments,” however, is not immediately obvious. The author therefore begins by considering several possible definitions of that term she hopes will then help move us toward a more robust understanding of the role of the courts in interpreting, constructing, or participating in “amending” the Constitution.

On 1 January 1901, the newly constituted Australian Parliament met for the first time at the Royal Exhibition Building in Melbourne. This ceremonial meeting of the parliament marked the climax of a ‘federation movement’ that is usually associated with the advocacy of a national system of government.

This chapter explores constitutionalism in the Australian context, as a combination of the written constitution and Westminster practice, before idenitfying key sections of the Australian Constitution. It then proceeds to explore the 1975 constitutional crisis, when the Whitlam government was dismissed. The High Court of Australia's role in interpreting the Australian Constitution is also considered. The chapter concludes by considering the potential for constitutional reform.

This chapter reviews the modern cases on the ‘third source’ in England and Wales and around the Commonwealth. This review illustrates that the law is fundamentally uncertain on the legal nature and exact provenance of these powers within each jurisdiction surveyed. It also illustrates that basic questions of legal theory relating to official empowerment and official action are unavoidable in the context of non-statutory executive powers. This demonstrates the gap between theory and practice in a specific context and justifies the need for the basic and wide-ranging interrogation of the law of judicial review undertaken in the book.

This chapter sets out the taxonomy of non-statutory executive powers ultimately adopted. It is a very simple taxonomy that draws a fundamental distinction between statutory and non-statutory executive powers but no distinctions for the purposes of judicial review between non-statutory executive powers associated with the Royal Prerogative and those that are more mundane, and appear to be nothing more than the ‘residual liberties’ of the Crown as a legal person. Once the logic of office, official empowerment, and official action is adopted as a premise, the idea of the ‘third source’ as generally articulated simply falls away. While the distinction may be interesting or useful in a historical sense, it is of no relevance to the ‘how’ or ‘why’ of judicial review.

This chapter explores the different ways of approaching judicial review, and makes some initial criticisms of the historical ‘ultra vires debate’ of the 1990s and 2000s. It argues for a return to the concept of jurisdiction (and jurisdictional error) as a central category of the law, and for a focus on non-statutory executive powers as a primary case for and from which to build a theory of the supervisory jurisdiction. While legislative intention is important, wherever it is relevant, it is not relevant where the official powers in question obviously derive from rules of competence outside of legislation. Further, common law rules of conduct are always central to judicial review in the context of statutory grants of power. This insight is conducive to a simpler and more powerful conception of judicial review based around a common law doctrine of ultra vires.

This chapter introduces the central technical apparatus to describe official action and thus, also, to describe the mechanics of judicial review of official action implicit in the traditional terminology of ‘ultra vires', that is, acting ‘beyond one's powers'. Officials are reposed with powers in virtue of rules of two types, which I call rules of competence and rules of conduct. These are not just labels of convenience, they explain the constitution of office and the inherently legal and limited nature of official vires. They box out the ‘space’ in which an official (i) can and (ii) may act lawfully, which space I call ‘Spielraum'. This concept relates to a modified Hohfeldian schema of jural relations which removes the temptation of "residual liberties" as a valid category of the official legal position.

This chapter provides some more detail on the rules of competence and rules of conduct that empower officials to act as such and constrain the scope of their action. The logic of empowerment, and the fundamental distinction between ability and permission, provides a profound insight into the two traditional ‘limbs’ of the ultra vires rule – the ‘narrow’ limb concerned with competence, jurisdiction, or vires in the strict sense, and the ‘broad limb’ concerned with the manner, form, and purpose of an exercise of a competence that the official clearly does have. Not only does this provide a simple and powerful explanation for the ultra vires review of non-statutory executive powers; it provides the foundation for a general theory of judicial review based in the courts’ inherent (common law) jurisdiction to police the bounds of, and constraints upon, officials’ vires – whether statutory or non-statutory.

This chapter explores the normative foundations of judicial review by rounding back on the concept of office. Judicial review exists to ensure that repositories of official power act only within the scope of the powers reposed in them. Official ‘power’ is inherently limited in virtue of being translated into official ‘powers’ (i.e., vires) that are implicitly capable of judicial interpretation and enforcement. The same applies for the constrains (i.e., rules of conduct) that operate on the manner, form, and purpose of their exercise. This gives rise to a concept of the rule of law as the rule of officials acting lawfully, which is a powerful expression of the ‘rule of law, not of men’ strand of thinking that traces back to Bracton at least. Office provides a superior point of departure than the radical English notion of parliamentary soveriegnty. This makes an appropriate concept of ‘public trust’ or ‘public fiduciary law’ the best expression of the conceptual and normative basis of judicial review. Far from being a slipshod translant of private law fiduciary remedies into public law, the emerging idea of ‘public fiduciary law’ is an apt expression of the deeper logic of office.

This chapter introduces the problem of official action beyond statute as a central concern to public law theory. It reviews the most important classical accounts of the Royal Prerogative and the modern notion of a ‘third source’ of executive power besides statute and prerogative. It also introduces a major them in the book, namely the concept of ‘official power’ as a set of ‘legal powers’ and uses this critically to assess common misconceptions about the nature of official action beyond statute – particularly conceptions of the third source as a set of ‘residual liberties’ inuring in the Crown in common with private individuals.