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- Title
The Third Source of Authority for Government Action Misconceived.
- Authors
SIMPSON, JEFF
- Abstract
Recent judicial acceptance that the government has residual freedom to undertake any action that is not prohibited, even without positive authorisation, has erroneously diverged from its earlier academic conception. The "third source" conception recognises that such residuary action is subordinate to all positive law. However, courts have attempted to find a positive law basis for residuary freedom in the common law, specifically in the Crown's legal personality. This "common law" conception fundamentally misunderstands the nature of residuary freedom because courts have not adopted what the author terms the "third way of judicial reasoning". This reasoning involves the court asking not whether action is authorised, but whether action is prohibited. The third source is thus being assessed by inappropriate criteria developed in the positive law context. Failure to adopt this judicial method has obscured the need for judicial and legislative development of positive legal rules to control third source action. It is the lack of such rules, not the third source itself, which is contrary to the rule of law.
- Subjects
UNITED States; AUTHORITY; COMMON law; RULE of law; LIBERTY; POSITIVE law
- Publication
Te Mata Koi: Auckland University Law Review, 2012, Vol 18, p86
- ISSN
0067-0510
- Publication type
Article