The Common Law, Shared Power and Judicial Review

Abstract:     
There has been much debate about whether judicial review is premised on legislative intent, specific or general, or whether it is grounded in the common law. It has now been suggested in an article in this journal that legislative intent should be conceived in constructive terms, that the common law model is defective in not recognizing this and that it adopts an inadequate account of the relationship between judicial review and sovereignty. The present article answers this critique. It will be seen that there are major problems with the very idea of constructive legislative intent, and with the relationship posited between judicial review and sovereignty.

Accepted Paper Series