This article examines non-statutory executive powers, which are commonly employed in the modern state but rarely studied as a distinct concept. The article assesses three treatments of these powers available in current English public law—prerogative, common law powers which rely on analogies between the state and legal persons, and judicial review—and argues that they fail to provide a proper balance between legality and need. Royal prerogative connotes a shrinking reservoir of ancient powers, while non-statutory powers respond to unexpected futures and (...) statute’s intrinsic eventual failings. Analogies to legal persons fail to address the particularities of executive powers. Judicial review provides only a partial solution, since absence of parliamentary approval is not, in itself, ground for special treatment of executive action. The author joins calls for theoretization of public law and advances a model of executive powers that draws on a composite theory of the executive branch and its functions.This article examines non-statutory executive powers, which are commonly employed in the modern state but rarely studied as a distinct concept. The article assesses three treatments of these powers available in current English public law—prerogative, common law powers which rely on analogies between the state and legal persons, and judicial review—and argues that they fail to provide a proper balance between legality and need. Royal prerogative connotes a shrinking reservoir of ancient powers, while non-statutory powers respond to unexpected futures and statute’s intrinsic eventual failings. Analogies to legal persons fail to address the particularities of executive powers. Judicial review provides only a partial solution, since absence of parliamentary approval is not, in itself, ground for special treatment of executive action. The author joins calls for theoretization of public law and advances a model of executive powers that draws on a composite theory of the executive branch and its functions. (shrink)

This article challenges hierarchical and binary thinking in constitutional theory, and offers an alternative basis that draws on multidimensionality. The recognition that constitutionalism is a collection of ingrained tensions between competing forces and conceptual bases is applied in a study of the executive branch, a field that is especially lacking in general theory. The existing research of the executive is almost entirely concerned with specific legal systems and is typically normative; descriptively, references to puzzles and ambiguity offer an inadequate, a-theoretical (...) basis for the understanding of the nature of the executive. Rejecting three alternative models, two of them hierarchical, the third, binary, I reach the internal tension model, which acknowledges the internal irresolvable tension between the executive’s subservience to law and its dominance beyond law, which underlies executive action. The article addresses the ways law can, and does, maintain this internal tension, and ends with some comments on future research directions. (shrink)