scholarly journals Judicial Review of Legislation in the UK: Fundamental Common Law Principles as "Constitutional Principles" Limiting the Sovereignty of Parliament?

2021 ◽  
Author(s):  
◽  
Bernadette Sangmeister
Keyword(s):  
Judicial Review ◽  
Public Reason ◽  
Common Law ◽  
Theoretical Models ◽  
Point Of View ◽  
Moral Ideal ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Common ◽  
The Uk

<p>The aim of this paper is to explore the role of judicial review of legislation in the UK from a legal constitutionalist’s point of view. After having introduced the reader to the origins of judicial review of legislation in general and the two theoretical models of constitutionalism, the UK’s system of constitutionalism will be analysed in particular. In this context, the process of “juridification” and “judicalisation” will be discussed in order to show that the British doctrine of Parliamentary sovereignty - famously articulated by Dicey in 1885 - is currently under attack. The main focus of this research paper is on the theory of common law constitutionalism (CLC theory), according to which the common law is seen as constituting a higher order of law, a moral ideal and a superior form of public reason, and therefore the ultimate controlling factor of Parliament’s actions. On the basis of the academic theory, the judicial reception of this theory will be analysed with particular attention to the House of Lords’ decision in Jackson in 2005. It will be argued that the system of the common law constitutionalism in the UK is not very different from the system of legal constitutionalism: Firstly, fundamental principles embedded in the common law like the rule of law are similar to constitutional principles of codified supreme constitutions, providing for benchmarks of judicial review of legislation. Secondly, the requirement of exceptional circumstances for invalidating legislation in the CLC system corresponds to the idea of (strong) judicial self-restraint in legal constitutionalist systems.</p>

scholarly journals Judicial Review of Legislation in the UK: Fundamental Common Law Principles as "Constitutional Principles" Limiting the Sovereignty of Parliament?

2021 ◽  
Author(s):  
◽  
Bernadette Sangmeister
Keyword(s):  
Judicial Review ◽  
Public Reason ◽  
Common Law ◽  
Theoretical Models ◽  
Point Of View ◽  
Moral Ideal ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Common ◽  
The Uk

<p>The aim of this paper is to explore the role of judicial review of legislation in the UK from a legal constitutionalist’s point of view. After having introduced the reader to the origins of judicial review of legislation in general and the two theoretical models of constitutionalism, the UK’s system of constitutionalism will be analysed in particular. In this context, the process of “juridification” and “judicalisation” will be discussed in order to show that the British doctrine of Parliamentary sovereignty - famously articulated by Dicey in 1885 - is currently under attack. The main focus of this research paper is on the theory of common law constitutionalism (CLC theory), according to which the common law is seen as constituting a higher order of law, a moral ideal and a superior form of public reason, and therefore the ultimate controlling factor of Parliament’s actions. On the basis of the academic theory, the judicial reception of this theory will be analysed with particular attention to the House of Lords’ decision in Jackson in 2005. It will be argued that the system of the common law constitutionalism in the UK is not very different from the system of legal constitutionalism: Firstly, fundamental principles embedded in the common law like the rule of law are similar to constitutional principles of codified supreme constitutions, providing for benchmarks of judicial review of legislation. Secondly, the requirement of exceptional circumstances for invalidating legislation in the CLC system corresponds to the idea of (strong) judicial self-restraint in legal constitutionalist systems.</p>

scholarly journals Democracy as the legitimating condition in the UK Constitution

Legal Studies ◽  
2018 ◽  
Vol 38 (1) ◽  
pp. 42-58
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
Common Law ◽  
Democratic Legitimacy ◽  
Moral Principles ◽  
Westminster Model ◽  
Normative Conception ◽  
Parliamentary Sovereignty ◽  
The Common ◽  
The Uk ◽  
Law Making ◽  
Do So

The UK Constitution is either theorised as a political constitution that is premised on the Westminster model of government or as a legal constitution that rests on moral principles, which the common law is said to protect. Both models conceive of democracy in procedural terms, and not in normative terms. However, the democratic legitimacy of laws stems from a complex constellation of conditions that no longer involves popular or parliamentary sovereignty alone. In this paper, I break with the traditional account that bases law-making authority on the condition of procedural democracy. Instead, I argue for a normative conception of democracy that conditions parliamentary authority. I show that failure to do so amounts to a glaring omission in certain cases.

3. The features and sources of the UK constitution

2021 ◽  
pp. 43-70
Author(s):  
Anne Dennett
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
International Treaties ◽  
The Rule Of Law ◽  
Judicial Decisions ◽  
Parliamentary Sovereignty ◽  
Constitutional Conventions ◽  
The Common ◽  
The Uk

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution are that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.

THE CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW: CONCEPTUAL CONUNDRUM OR INTERPRETATIVE INQUIRY?

2002 ◽  
Vol 61 (1) ◽  
pp. 87-125 ◽  
Author(s):  
T.R.S. Allan
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Common Law ◽  
The Other ◽  
Current Debate ◽  
The Rule Of Law ◽  
Parliamentary Sovereignty ◽  
True Meaning ◽  
The Common ◽  
The One

THE essay questions the sense and purpose of current debate over the coherence of the ultra vires doctrine. It argues that the dispute is mainly semantic, serving to conceal rather than illuminate genuine questions about the nature and legitimacy of judicial review. If the doctrine’s opponents are right to emphasise the common law basis of the relevant standards of legality, abstractly conceived, the ultra vires school is equally right to insist that, in a statutory context, legislative intention is critical to the application of such standards. To connect the present debate with significant issues of substance, it would have to be recast as one between those favouring a “normativist” grounding of judicial review in the rule of law, on the one hand, and their “functionalist” or “pluralist” opponents, generally hostile to judicial review, on the other. The futility of the present debate is revealed by the simultaneous adherence of both sides to an integrated “rule of law” perspective. A useful analysis of the foundations of judicial review, capable of illuminating issues of substance, must explore the true meaning of the interrelated concepts of parliamentary sovereignty and the rule of law. No attack on the “empty formalism” of the ultra vires doctrine can carry conviction while at the same time affirming the doctrine of absolute parliamentary sovereignty, a doctrine equally malleable in the hands of judicial interpreters of statute, guided by common law precepts.

3. The features and sources of the UK constitution

2019 ◽  
pp. 43-68
Author(s):  
Anne Dennett
Keyword(s):  
European Union ◽  
Separation Of Powers ◽  
Common Law ◽  
International Treaties ◽  
European Union Law ◽  
Judicial Decisions ◽  
Parliamentary Sovereignty ◽  
Constitutional Conventions ◽  
The Common ◽  
The Uk

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution is that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; European Union law and international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.

Liberating Malawi's Administrative Justice Jurisprudence from Its Common Law Shackles

2011 ◽  
Vol 55 (1) ◽  
pp. 105-127 ◽  
Author(s):  
Danwood Mzikenge Chirwa
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
The Common ◽  
The Right ◽  
Administrative Justice

AbstractThe 1994 Malawian Constitution is unique in that it, among other things, recognizes administrative justice as a fundamental right and articulates the notion of constitutional supremacy. This right and the idea of constitutional supremacy have important implications for Malawi's administrative law, which was hitherto based on the common law inherited from Britain. This article highlights the difficulties that Malawian courts have faced in reconciling the right to administrative justice as protected under the new constitution with the common law. In doing so, it offers some insights into what the constitutionalization of administrative justice means for Malawian administrative law. It is argued that the constitution has altered the basis and grounds for judicial review so fundamentally that the Malawian legal system's marriage to the English common law can be regarded as having irretrievably broken down as far as administrative law is concerned.

The Implementation of Constitutional Reform in the United Kingdom: Principles and Problems

1995 ◽  
Vol 29 (4) ◽  
pp. 551-564
Author(s):  
Dawn Oliver
Keyword(s):  
United Kingdom ◽  
Judicial Review ◽  
Common Law ◽  
Public Law ◽  
Constitutional Reform ◽  
Academic Literature ◽  
The United Kingdom ◽  
The Common ◽  
Executive Agencies ◽  
The Relationship

First, I want to express my gratitude and sense of honour in being invited to deliver the Lionel Cohen lecture for 1995. The relationship between the Israeli and the British legal systems is a close and mutually beneficial one, and we in Britain in particular owe large debts to the legal community in Israel. This is especially the case in my field, public law, where distinguished academics have enriched our academic literature, notably Justice Zamir, whose work on the declaratory judgment has been so influential. Israeli courts, too, have made major contributions to the development of the common law generally and judicial review very notably.In this lecture I want to discuss the process of constitutional reform in the United Kingdom, and to explore some of the difficulties that lie in the way of reform. Some quite radical reforms to our system of government — the introduction of executive agencies in the British civil service, for instance—have been introduced without resort to legislation. There has been a spate of reform to local government and the National Health Service.

Bona fides and ubuntu – A response to Dale Hutchison

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 85-106
Author(s):  
J Barnard-Naudé
Keyword(s):  
South African ◽  
Common Law ◽  
Standard Form ◽  
Contract Law ◽  
Law School ◽  
Point Of View ◽  
Long Time ◽  
School Faculty ◽  
The Common ◽  
Faculty Meeting

This paper is a response to Dale Hutchison’s recent arguments about the role of fairness in contract law after the Constitution. From the point of view of transformative constitutionalism, the paper argues that the fairness ‘debate’ in the South African law of contract should be approached as what it so patently is, namely, as evidence of a deep ideological conflict that has existed in our law of contract for a very long time, and that this debate now exists within the context of a larger debate about the appropriate transformative reach of the Constitution. The argument takes the form of two ‘dangerous supplements’ to Hutchison’s discourse. The first of these supplements contends that indeterminacy is a symptom of the common law itself, rather than a result of contract law’s contact with the Constitution. The second dangerous supplement suggests a responsible judicial engagement with bona fides and ubuntu, one that can exploit the strengths of both the common law and the Constitution and that understands good faith and ubuntu to be ‘inter-linking’ constitutional values that should be enlisted in unison or at least in resonance when it comes to the question of fairness in our contemporary law of contract. In conclusion, I offer a reading of Hutchison’s own politics of contract law and contend that his is an altruistic politics committed to the standard form. I contend that this politics of contract law is consistent with a transformative understanding of the post-apartheid legal order. ‘Law, like every other cultural institution, is a place where we tell one another stories about our relationships with ourselves, one another, and authority. In this, law is no different from the Boston Globe, the CBS evening news, Mother Jones, or a law school faculty meeting. When we tell one another stories, we use languages and themes that different pieces of the culture make available to us, and that limit the stories we can tell. Since our stories influence how we imagine, as well as how we describe, our relationships, our stories also limit who we can be’.

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