Lecture 3: Constitutional agency as exercised by the courts

This lecture discusses the extent to which it is appropriate to regard the courts as exercising agency within the constitution. The courts’ primary function is to identify and apply the law, which seems to indicate an absence of agency. But the courts develop the law through the interstices of interpretation and application. In interpreting and applying the law they exercise a degree of partnership with the legislature. Through human rights doctrine they also provide incentives and guidance for the proper functioning of a deliberative democratic order. A constitution has many objectives and recognises many values. The courts have responsibility for giving effect to a constitutional order which blends these in a harmonious and justified manner. The lecture explores the way they do this by articulating fundamental principles and by laying down standards of review for both executive and legislative activity.