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In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law

Published online by Cambridge University Press:  20 July 2015

T.R.S. Allan
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Extract

Alan Brudner’s closely-argued, richly-textured and wide-ranging work, Constitutional Goods, provides a striking and original account of the rule of law and its implications for legitimate government. Since the rule of law includes the enforcement of substantive principles ofjustice, it requires a clear separation of powers between court and legislature. The role of the court is chiefly confined to pure practical reason, determining what the public reason of the liberal consti-tution requires. It is the role of the legislative assembly to give its assent to governmental measures that apply the principles ofjustice to empirical circumstances, where the scope for reasonable disagreement provokes a transition from natural law to political judgment. Judicial review carries no anti-democratic implications because it defends the conceptual boundaries of popular decision-making: ‘Democracy is not defeated but protected if the court invalidates a law no free person could impose on himself, for the majority has no more authority to pass such a law than an autocrat nor any jurisdiction to decide by fiat a question to which there is a correct legal answer.’

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 22 , Issue 1 , January 2009 , pp. 187 - 203
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2009

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References

1. Brudner, Alan, Constitutional Goods (Oxford: Oxford University Press, 2004) at 213.Google Scholar

2. Ibid. at 66.

3. Ibid. at 131.

4. Ibid. at 129-30.

5. Ibid. at 244.

6. See Hayek, F.A., Law, Legislation and Liberty (London: Routledge & Kegan Paul, 1982)Google Scholar; Nozick, , Anarchy, State, and Utopia (New York: Basic Books, 1974)Google Scholar; cf. Constitutional Goods at 253.

7. Supra note 1 at 433.

8. Ibid. at 433-34.

9. See Allan, , Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001).Google Scholar

10. Supra note 1 at 437. My own conception is a ‘decidedly sparse internal morality of law consisting of due process, the political freedoms, and, as far as substance is concerned, an injunction against bills of attainder and against discrimination not justified by some public purpose’ (ibid.).

11. Ibid. at ix.

12. See Allan, supra note 9.

13. Supra note 1 at 214-16.

14. Ibid. at 436.

15. Ibid. at 66.

16. Kant, Immanuel, The Metaphysics of Morals, trans. by Gregor, M. (Cambridge: Cambridge University Press, 1991) at 56.Google Scholar

17. Supra note 1 at 67.

18. See, e.g., Bellamy, Richard, Political Constitutionalism (Cambridge: Cambridge University Press, 2007).CrossRefGoogle ScholarPubMed

19. Supra note 1 at 67.

20. Ibid. at 68.

21. Ibid. at 77.

22. Ibid. at 113.

23. Ibid. at 69.

24. Ibid.

25. Ibid. at 69-70.

26. Ibid. at 142-43.

27. Ibid. at 143.

28. Ibid.

29. Compare Sir Edward Coke, Institutes of the Laws of England (London, 1628), I, 109–110 Google Scholar, with Dr. Bonham’s Case (1609) 8 Co Rep 107, at 118.

30. Dicey, A.V, Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1959) at 413.Google Scholar

31. Supra note 1 at 83.

32. Ibid.

33. West Virginia State Board of Education v. Barnette 319 US 624 (1943); see Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977) at 213–14.Google Scholar

34. Supra note 1 at 112.

35. Ibid. at 113.

36. Ibid.

37. Ibid. at 168-69.

38. Ibid.

39. Fuller, , The Morality of Law, 2nd ed. (New Haven, CT: Yale University Press, 1969).Google Scholar

40. Supra note 1 at 40.

41. Ibid. at 132.

42. Ibid.

43. United States v. Brown 381 US 437 (1965); see Constitutional Goods, supra note 1 at 133.

44. Supra note 1 at 116-17.

45. Ibid.

46. Brudner objects to the distinction I have made between the conscientious inciter and someone who counsels disobedience for personal gain (Constitutional Justice, supra note 9 at 107): he objects that motive is irrelevant since both inciters threaten to displace an objective order by a subjective will and hence the dissolution of Law’s rule: Constitutional Goods, supra note 1 at 117, n.12. When we insist on compliance with the conditions of Law’s rule, objectively determined, however, we can distinguish between what is in substance an appeal to Law, correctly understood, and incitement of admitted law-breaking (for personal gain) on the other.

47. Supra note 1 at 164.

48. Ibid.

49. Ibid. at 165.

50. Ibid. at 284.

51. See Hiebert, Janet L., ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69(1) Mod. L. Rev. 7.CrossRefGoogle Scholar

52. R. v. Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 at 131.

53. Ibid.

54. R. v. Secretary of State for the Home Dept, ex p Pierson [1997] 3 WLR 492 at 518.

55. ex parte Simms, supra note 52.

56. See R. v. A (No 2) [2001] UKHL 25, [2002] 1 AC 45.

57. Ibid. at para 45.

58. See further Allan, T.R.S., ‘Parliament’s Will and the Justice of the Common Law: The Human Rights Act in Constitutional Perspective’ (2006) 59 Current Legal Prob. 27.CrossRefGoogle Scholar See also Secretary of State for the Home Dept v. MB [2007] UkHL 46, [2007] 3 WLR 681 (control order proceedings, under Prevention of Terrorism Act 2005, construed as taking effect only where it was consistent with fairness for them to do so).

59. R. v. Mills [1999] 3 SCR 688.

60. R. v. O’Connor [1995] 4 SCR 411.

61. [1999] 3 SCR 688 at 747.

62. See Hickman, Tom R., ‘Constitutional Dialogue, Constitutional Theories and the Human Rights Act 1998’ [2005] P. L. 306.Google Scholar

63. Ibid. at 309.

64. See e.g. Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291; see Hickman, , ‘Constitutional Dialogue’ at 332–35.Google Scholar

65. See Allan, T.R.S., ‘Constitutional Dialogue and the Justification of Judicial Review’ (2003) 23 Oxford J. Legal Stud. 563.CrossRefGoogle Scholar

66. See esp. [1999] 3 SCR 688, 712.

67. Supra note 1 at 169.

68. Ibid.

69. Ibid. at 172.

70. Supra note 1 at xi.

71. Ibid.

72. Fuller, supra note 39 at 33-41.

73. Fuller, Cf. Lon L., The Law in Quest of Itself (Boston, MA: Beacon Press, 1966)Google Scholar. See also Simmonds, Nigel, Law as a Moral Idea (Oxford: Oxford University Press, 2007).Google Scholar