Legislative Intent and Legislative Supremacy: A Reply to Professor Allan

Abstract:     
Ten years on and the debate about the foundations of judicial review continues. Two themes have remained constant throughout. The species of legislative intent have multiplied to include specific, general and constructive intent, and who knows what further 'adjectival variants' remain to be discovered. Those opposed to the common law model advance dire warnings of the dangers of ignoring their preferred adjectival version. In Allan's case my previous analytical criticism of constructive legislative intent, henceforth CLI, has provoked more extreme claims and more intemperate language about the alleged consequences of adherence to the common law model. These are, as will be seen, wrong. They serve moreover to mask the problems with CLI. Allan claims repeatedly that I confuse literal and constructive legal intent in his reasoning. This is quite mistaken: I take issue with the very meaning and application of CLI.

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