The New Separation of Powers: A Theory for the Modern State by Eoin Carolan
| Date | 01 May 2010 |
| Author | Tom Flynn |
| Published date | 01 May 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00805-3.x |
This book, which is part of an ongoing, broader project, professes, in the pre-
face,to be ‘centered on NewZealand, but lookingoutward to othercommon law
jurisdictions’. However, readers looking for a comparative analysis of directors’
duties and powers will need to look elsewhere. The focus is squarely on New
Zealand company law. Relatively few references to UK statutory provisions are
included, for example. A signi¢cant amount of case law from the UK and other
jurisdictions is made use of in this book, but is introduced in order to help
explain, or supplement, the New Zealand provisions. This is not to say that this
book will not be ofi nterest toUK lawyers. It will be invaluable to anyone want-
ing to understand the New Zealand position on these issues. Even those with a
more parochial mindset will ¢nd much of value, either because the law on many
points is identical (eg the de¢nitionof a shadowdirector is governed bySecretary of
State forTrade and Industry vDeverell [2001] Ch 340) or as a result of the interesting
and thoughtful discussions of matters of general interest contained in this book
(see eg 163^179 on the di⁄cult issues of directors who act for a competitor, and
directors who transition into competition with a former company). Even where
the lawdi¡ers from the UKprovisions (eg the duty of care and skill contained in
section137of the Companies Act1993 imposes a purelyobjective standard, unlike
the dual objective and subjective provisions in the UK) these di¡erences are a
cause for re£ection. It has become fashionablefor UK lawyers to look to the US
and Europe for their comparative inspiration, but this volume reminds us that
there is much to interest UK lawyers in reading about other jurisdictions, and
New Zealand, with its common law heritage and its similar (but not identical)
wayof tackling these issues, is a good place to start.
Jennif er Pa yne
n
Eoin Carolan,The New Separation of Powers: A Theory for the Modern State,
Oxford: Oxford University Press, 2009, 286 pp, hb d50.00.
The ¢rst question raised by this book’s bold title is an obvious one: what’s wrong
with the ‘old’ separation of powers? Carolan is convincing in his indictment: the
traditional, tripartite conception of the state as being divided into legislative,
executive and judicial branches is internally incoherent, aspirationally unfocused,
descriptively inadequate (253^254), and ‘so indeterminate that it is ultimately
devoid of any practical e⁄cacy’ (22).
It is the latter two charges, of descriptive inadequacy and practical indetermi-
nacy, on which Carolan focuses.The ‘modern state’referred to in the book’s title is
the administrative state, that vast agglomeration of boards, councils, services,
panels,‘tsars’, tribunals and the rest (along with rather more traditional entities
such as courts and parliaments), which has grown since the Second World War
to regulate ever greater portions of daily l ife.With its aprioriinsistence that there
are onlythree legitimatepowers in the constitutional polity, the traditional theory
n
Merton College, University of Oxford.
Reviews
517
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
(2010)73(3) 510^522
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