The Inherent Jurisdiction of the Court, I. H. Jacob


For a good grounding on the topic of inherent power (i.e., as formulated at Article 46 of the Quebec Code of Civil Procedure), before you read this, read Joan Donnelly’s “Inherent Jurisdiction and Inherent Powers of Irish Courts”, published by Judicial Studies Institute Journal, 2009:2, 122. Donnelly deals with Jacob and explains the problems with his quite famous essay. Donnelly also takes an important step towards untangling the difference between inherent jurisdiction and inherent power.

The Inherent Jurisdiction of the Court
I. H. Jacob

In many spheres of the administration of justice, the High Court of Justice in England1 exercises a jurisdiction which has the distinctive description of being called “inherent.” The inherent jurisdiction of the court may be invoked in an apparently inexhaustible variety of circumstances and may be exercised in different ways. This peculiar concept is indeed so amorphous and ubiquitous and so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits. Yet there are insistent questions about inherent jurisdiction which demand and deserve an answer, such as, what is its nature, its juridical basis, its limits, its capacity to diversity, and its claim to viability. An attempt to provide some answers may help to throw a little light upon an important, though perhaps somewhat uncharted, area of English procedural law.

Nature of Inherent Jurisdiction

To understand the nature of the inherent jurisdiction of the court, it is necessary to distinguish it first from the general jurisdiction of the court, and next from its statutory jurisdiction.

The term “inherent jurisdiction of the court” does not mean the same thing as “the jurisdiction of the court” used without qualification and description: the two terms are not interchangeable, for the “inherent” jurisdiction of the court is only a part of an aspect of its general jurisdiction. The general jurisdiction of the High Court as a superior court of record is, broadly speaking, unrestricted and unlimited in all matters of substantive law, both


1  The Court of Appeal also exercises an inherent jurisdiction, see Aviagents v. Balstravest Investments Ltd. [1966] 1 W.L.R. 150; [1966] 1 All E.R. 450, C.A. As to the inherent jurisdiction of the inferior courts, see below, p. 48.  The English doctrine of the inherent jurisdiction of the court is reflected in most, if not all, other common law jurisdictions, though not so extensively in the United States of America; but it has no exact counterpart in other legal systems, except perhaps in relation to abuse of process.



"Sed quis custodiet ipsos custodes?" — Juvénal, Satires, VI, 346.  En français : « Qui nous protègera contre ceux qui nous protègent ? »  In English: " Who will protect us from those who protect us? "

 — Mauro Cappelletti dans Louis Favoreu (dir.), Le pouvoir des juges, Paris, Economica, 1990, p. 115.
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