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

19 Pages Posted: 26 Jan 2009  

T. R. S. Allan

University of Cambridge - Faculty of Law

Date Written: January 22, 2009

Abstract

Brudner argues that liberal constitutionalism, or the rule of Law, requires the adoption of a written constitution, regulating the respective powers of court and legislature. In his analysis, the common law constitution is associated with a libertarian paradigm that gives way, in part, to an egalitarian one embodied in a sovereign constitutional text. I argue, to the contrary, that the preservation of the rule of Law, including the protection of liberal rights, does not require a codified constitution, but demands only the consistent application of the correct legal principles to particular cases. Statutes must always be interpreted consistently with such principles: their meaning and validity are alike dependent on their compatibility with fundamental constitutional rights. Demands that cannot be acknowledged as legitimate requirements by an independent moral agent cannot qualify as law.

Suggested Citation

Allan, T. R. S., In Defence of the Common Law Constitution: Unwritten Rights as Fundamental Law (January 22, 2009). LSE Legal Studies Working Paper No. 5/2009. Available at SSRN: https://ssrn.com/abstract=1331375 or http://dx.doi.org/10.2139/ssrn.1331375

T. R. S. Allan (Contact Author)

University of Cambridge - Faculty of Law ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

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