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 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.

Prior to the Treaty of Lisbon, there was nothing in EU law setting out how a member state could leave the Union. In Costa, the CJEU had indeed implied that membership was forever, describing the EEC as a ‘community of unlimited duration’ based on a Treaty concluded for an unlimited period. Article 50 TEU changed this. It had been included in the Convention to deflect criticism that member states could join but never leave. The inability to leave became another manifestation of the EU’s democratic deficit. Inclusion of Article 50 was approved by all Member States but it was envisaged that Article 50 would not be used. The four paragraphs of Article 50 set out a general framework of how to exit the Union but provide very little detail. The first part of this chapter goes through the structure of Article 50 and comments on the process of leaving the EU. The remining sections focus on the resulting agreement. Overall, it is unclear how far Article 50 succeeded in improving democratic procedures and legitimacy in the EU, but clear that this provision needs to be amended if a repeat of the lengthy and chaotic Brexit process is to be avoided.

In The Second Treatise of Government, John Locke seems to support what Quentin Skinner identified as the neo-Roman theory of liberty. That is to say, according to Locke, in order to be free, it is not sufficient to be free from constraint or coercion. It also necessary for you to be free of dependency on the will of another person. The sheer fact of absolute monarchy, of ruling by will rather than law, constitutes an act of war, and the people have the right to take up arms against it. However – and here his story becomes strange – Locke also defends prerogative power. That is, he defends the right of the magistrate to exercise their will over and above the rule of law. This chapter will explore this apparent contradiction and try to make sense of it in Locke’s terms. It will conclude that Locke points to an irresolvable tension between the will and the good, and that while the languages of political thought cannot be historically disentangled, they can have distinct and rich philosophical lives.

This chapter is largely devoted to commenting on the other contributions to the volume.An attempt is made to evaluate the arguments and criticisms brought to bear by each contributor on the project of defining civil liberty not as absence of interference but rather in neo-Roman terms as absence of more general conditions of subjection and dependence. The chapter opens with an exposition of the neo-Roman theory, focusing on its articulation in Roman and common law traditions of thinking about the law of persons and related arguments about ‘fundamental’ rights and liberties. The chapter next defends the distinctiveness and coherence of the neo Roman approach against a number of objection that have been raised against it. The chapter ends by reflecting on how the re-appropriation and development of a neo-Roman perspective might help us to think more fruitfully about some current threats to privacy and democracy as well as individual liberty. This concluding section focuses particularly on threats stemming from increasing surveillance and other silent exercises of power.

This concluding chapter seeks to reiterate themes and lines of argument, while laying a foundation for discussion and judgment about the place of intellectual property in our political communities today. To summarize: the modern nation-state system, powered partly by intellectual property law, is fundamentally an order of obligation, an organization of vast social networks, in which legal instruments with ancient roots performatively link people and organizations together with their national polities into a joint project of economic expansion. The social formation story that I have told in tracing the development of this system is one in which Roman law and Biblical law were drawn together under the authority of bishops and kings to support a very modern, and very strange, adaptation of Abrahamic faith traditions, an adaptation in which faith is placed in legality, and hope is placed innovation. A characteristic set of anxieties accompanies this modern faith tradition, anxieties that our nation will fall behind in the race for innovation, and will lose its fragile position of dominance in a global order of power.

This chapter traces foundations for the organizing framework of the modern nation-state to post-Conquest England. Feudalism was essential, as institutionalized in the royal prerogative, administrative kingship, and covenantal social bonds. I focus on the historical factors that made England distinctive, in this period, both in the intensity of its feudal structures and in the strength of royal, prerogative powers. I argue that a unique combination of Anglo-Saxon legal legacies with the Norman Conquest's imposition of powerful rulership facilitated the coalescence of a regime involving new levels of social power. Roman law, canon law, and English common law each played vital roles in this coalescence, with new levels of economic growth fueled by new types of legal privileges. Development of new technologies, for example the windmill, was one result.

Chapter 4 offers a synthetic interpretation of the Indulgence policies pursued by Charles II and James II across more than two decades of rule. Three major attempts at Indulgence in England, and more in Scotland and Ireland, produced political controversies and bitter polemics. This chapter interprets these battles over Indulgence within as skirmishes in the larger war between the politique court culture of the Stuart dynasty and the sometimes beleaguered interests of the established church. Hobbism, in this reading, appealed to politiques and their allies among tolerationist nonconformists. The church’s opposition to Indulgence as Hobbesian statecraft, however, pressured the position of nonconformity and forced dissenters to devise firmer foundations for the freedom of conscience. Locke’s own tolerationism would mature against these broader developments. In interpreting this history, the chapter makes use of the concept of ‘non-domination liberty’ devised by neo-Republican theorists such as Philip Pettit and Quentin Skinner