Is Foreign Policy Special?

Ewan Smith

Oxford Journal of Legal Studies, 2021, vol. 41, issue 4, 1040-1065

Abstract: People say foreign policy is a special sort of public policy. This article challenges that claim. It argues that judges should treat foreign policy in the same way they treat other sorts of policy. The article responds to four related lines of argument: that foreign policy is special on account of the constitutional separation of powers; that it demands a special sort of democratic legitimacy; that it is especially complex, secret and prophetic; and that it is simply more important than other aspects of public policy. These might be good reasons to defer to the government in general, but they are not good reasons to grant special deference to foreign policy.

Keywords: administrative law; judicial review; constitutional law; constitutional theory; foreign policy (search for similar items in EconPapers)
Date: 2021
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