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Emphasis on Empowerment in Public Law

There are several reasons, both principled and strategic, for emphasizing empowerment in addition to
the traditional emphasis on control in public law.

First, emphasizing the positive role of government leads to a focus on the theoretical justification for the state and its laws. If it is accepted that government has a positive role in upholding the common good, then constraints on government cannot be simply accepted, they must be justified explicitly. This is the idea behind political constitutionalism, which suggests that the constraints on government must predominantly be found in the political system. 

The most fundamental safeguards to maintain the state lie in empowering citizens in their choice of representatives. If the system of choosing the government is truly democratic and representative, then a government so chosen is empowered to pursue the objectives for which it was elected, and there is little scope for courts to question the exercise of power in the fulfillment of the government’s mandate from the people. Throughout this book, there are examples of governments exercising power and the courts being asked to review this exercise of power. 

To maintain national security, advance human rights, or develop a just and coherent Indigenous policy, the people turn to the government for leadership, while simultaneously turning to the courts to constrain the bounds of this government power, or even to require government action where none is forthcoming. As a result, there is an evident tension between empowerment and constraint in the exercise of judicial review.

Second, an emphasis on empowerment turns the focus to the most powerful institution of government in the state, the Executive. Despite its central role in government, executive power is the least clearly defined of the powers of the three branches of government. While administrative law has increased the discussion of the Executive in the law, its focus is on control of the Executive, rather than the depth and the breadth of its power.

Third, key public law doctrines – federalism, separation of powers, and responsible and representative government – are traditionally discussed narrowly as mechanisms of control. A focus on public law as providing for the common good through empowerment as well as constraint allows a broader consideration of these doctrines. Inherent in the separation of powers, for example, can be seen not only a mechanism of constraint, but also a positive allocation of power to promote the common good. And federalism is not only a means for dividing and thereby limiting power, but also a positive way to promote diversity and experimentation within the Commonwealth. We believe that a positive, facilitative role of public law is inherent in its principles, and must not be obscured by placing too heavy a focus on constraint for its own sake.

                               Constraint of government, however, remains a crucial theme in public law. The modern state’s enhanced capacity to govern has included an unprecedented level of economic and social power. States fund and manage large scale, well-organized police and armed forces. Governments in stable democracies have little fear of alternative power bases within the state threatening their supremacy. They are, then, free to govern in the knowledge of their superior strength. The constraints on this power to govern must, therefore, come from constraints on the legal exercise of powers within the system of public law.

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