See also the discussion of legal powers in our Working Paper on Text-driven Normativity.
- A legal power refers to the ability of a legal subject to achieve an intended legal effect
- A legal power is attributed by positive law
- One can have a legal power to attribute legal powers
- All legal powers are both constituted and constrained by positive law
- The written or unwritten Constitution of a state attributes legal powers to legislate, administrate and adjudicate, thus calling them into existence (the constitution ‘constitutes’ these powers), and qualifying them (the constitution also ‘regulates’ these powers, e.g. by attributing them to countervailing powers)
- In the case of public law legal powers are constrained by the legality principle.
- In the case of private law legal powers are constrained by the reasonableness principle (or equity in common law jurisdictions).
- The attribution of legal power plays out in all domains of law:
- Private law, for instance, attributes to the owner of a legal good the legal power to transfer related property rights, provided specific conditions have been fulfilled
- Criminal law, for instance, attributes to the court the legal power to impose specified (maximum) punishments, provided the conditions of a specific criminal offence have been fulfilled
- Administrative law, for instance, attributes to legal subjects the legal power to object to decisions made by public administration, provided specific conditions apply
- International law, for instance, attributes to states the legal power to conclude treaties, subject to the constraints imposed by the sources of international law