Adam Perry is an Associate Professor in the Faculty of Law and Garrick Tutor and Fellow at Brasenose College. He holds a BA in economics from the University of Winnipeg, an LLB from the University of Victoria, and BCL, MPhil, and DPhil degrees from the University of Oxford. He was a law clerk at the British Columbia Court of Appeal, and has held academic positions at the European University Institute, the University of Aberdeen, and Queen Mary University of London. He joined the Faculty of Law at Oxford in 2015.
Dr Perry's interests are in administrative law, constitutional law, and jurisprudence. His articles have appeared in the Cambridge Law Journal, Law Quarterly Review, Modern Law Review, and Oxford Journal of Legal Studies, as well as in I-CON, Legal Theory, Philosophy & Public Affairs, and Public Law. His current research includes projects about (i) the relationship between law and fiction; (ii) constitutional conventions; (iii) the nature of deference; and (iv) statutory interpretation. Dr Perry welcomes email contact from prospective research students interested in public law or jurisprudence.
- Pardon powers are common but difficult to justify. A pardon power is, roughly, a power that is (a) possessed by a non-judicial official, (b) used to cancel legal liability to a criminal sanction in a particular case without thereby altering the law, and (c) unconstrained by law. So defined, pardon powers seem to be at odds with two constitutional principles. Contrary to the separation of powers, the pardon power gives to someone other than a judge a decisive role in determining criminal liability in particular cases. Contrary to the rule of law, the pardon power is neither constrained nor ruled by law. Here I provide a novel defence of pardon powers, in three steps. First, even an optimal legal code requires suboptimal results in some cases. In such cases there is a “gap” between what is required by the code we should have and what we should do absent that code. Adhering to the code in every gap case is undesirable: while it would avoid suboptimal results, it would create too much unpredictability. Deviating from the code in every gap case is also undesirable: while it would ensure predictability, it would produce too many suboptimal results. The best strategy is to adhere in some cases and to deviate in others, that is, to selectively deviate. The most important thing about selective deviation is that it leads to like cases being treated differently. This is the second step in the argument. Third, pardon powers are an appropriate vehicle for selective deviation. Selective deviation calls for a power that can be used to set aside the code without changing it. It calls for a power that can be used inconsistently. Moreover, it calls for a power that is not in the hands of a body institutionally disposed towards consistency in decision-making, such as the judiciary. That is, it requires a power with features (a)-(c) – a pardon power. This argument overcomes the various objections to pardon powers. Contrary to the objection from the separation of powers, selective deviation is a task better carried out by non-judicial officials. Contrary to the objection from the rule of law, a power of selective deviation must be unconstrained to preserve the law’s guiding function. Overall, the features of pardon powers that seemed to be in tension with the separation of powers and the rule of law turn out to be favoured by those same principles.In an earlier Article, we disproved the three claims central to the dominant view in the study of constitutional conventions: that there is a shared “Commonwealth approach” to constitutional conventions; that Commonwealth courts will recognize and employ conventions but never enforce them; and that conventions are sharply distinguishable from rules of law. We drew from Canada, India and the United Kingdom to demonstrate that Commonwealth courts have recognized, employed and indeed also enforced conventions. In this Article, we turn from the descriptive to the normative, arguing, again in contrast with the dominant view, that Commonwealth courts sometimes should enforce conventions. We argue that courts should act as executors of the will and judgment of constitutional actors, and limit themselves to enforcing only power-shifting conventions: conventions which transfer power from those who have legal power to those who can legitimately wield it. In playing this role, judges uphold the legitimate allocation of power—legitimate, not according to judges, but according to constitutional actors themselves.The norms of a legal system are relevant in deciding on what rights and duties people have within that system. But many norms which are not part of that system will nonetheless be relevant within it. These other norms may include the norms of foreign legal systems, games, clubs, contracts, grammar, arithmetic, unions, universities, and so on. What distinguishes the norms which are part of a legal system (“local norms”) from the norms merely relevant within it (“adopted norms”)? Where, in other words, are the law’s boundaries? There are three main answers in the literature. Matthew Kramer claims that adopted norms are under the control of external actors, whereas local norms are not. Scott Shapiro flips that idea on its head. Adopted norms are not created through the exercise of local powers, he says, whereas local norms are. Joseph Raz, meanwhile, distinguishes adopted and local norms based on the reasons officials have for relying on them. But there are obvious counterexamples to each of these answers. My own answer draws on a distinction in constitutional scholarship between direct and indirect relevance. Roughly, directly relevant norms suffice for some conclusion about people’s rights and duties. Indirectly relevant norms bear on the interpretation, applicability, or exact consequences of other norms. Whereas local norms are directly relevant, adopted norms are merely indirectly relevant. Thus, what distinguishes the two types of norms is the directness of their legal relevance. I conclude by showing that it makes a practical difference on which side of the boundary a norm falls.
Journal Article (16)
Case Note (1)
Administrative law, constitutional law, constitutional theory, jurisprudence