DCL Research Series: The Constitution of Power

In The Concept of Law, HLA Hart famously debunked Jeremy Bentham and John Austin’s command theory of law. The command theory, in short, argues that law is best understood as a series of commands that legal subjects habitually obey. One of Hart’s rejoinders to the command theory was that power-conferring rules cannot fit this definition without grotesque contortion. Legal powers are facilities which enable power-holders to bring about legal changes, such as the power to make a contract. Power-conferring rules therefore are not commands to be obeyed by the power-holder, but are instructions, which if followed, bring about consequences that are valid in law.

In this session of the DCL Research Series, McGill Law DCL candidate Jo Murray will discuss the nature of power-conferring rules in the context of unwritten constitutionalism, administrative law, and fiduciary law.

In particular, she will argue that legal powers generate valid legal consequences through interactivity. Therefore, we might better define legal powers as interpersonal-actions-in-law. This formulation is suggestive of a constitutive connection between the rule of law and legal powers, and lays the groundwork for a theory of judicial review that explains how administrative agencies' powers are also established and generated through, as opposed to only limited and constrained by, the rule of law.

McGill Law DCL candidate Upasana Dasgupta will be the main discussant.

The DCL Research Series takes place several times during the academic year. It's a platform for DCL candidates and other scholars to share their research and receive feedback.

All are welcome to attend! For more info, contact the series’ convener, Ivan Ozai (ivan.ozai [at] mail.mcgill.ca).