The Normativity of the Principle of Legality

43 Pages Posted: 2 Jun 2013 Last revised: 28 Jan 2014

See all articles by Brendan Lim

Brendan Lim

University of New South Wales (UNSW) - Faculty of Law

Date Written: September 1, 2012

Abstract

The constitutional justification for the principle of legality has been transformed. Its original basis in a positive claim about authentic legislative intention has been repudiated. Statutes today are so far-reaching that it would be wrong to suppose any actual improbability in legislative intentions to abrogate common law rights. Two rival justifications for the principle have emerged in response. One is a refined positive claim: legislatures do not intend to abrogate ‘fundamental’ rights. The other is a normative claim: courts should attribute an intention not to abrogate rights in order to improve the political process. Distinguishing these justifications answers the vexed question of which rights engage the principle of legality. 'Fundamental' rights, in the first claim, just are those rights that legislatures do not, in fact, intend to abrogate. The normativity of the second claim is engaged not by ‘fundamental’ rights, but by ‘vulnerable’ rights not adequately protected by the ordinary political process. ‘Vulnerable’ rights may originate not only in the common law but also in statutes.

Keywords: canons, fundamental rights, legislative intention, normative canons, presumptions, principle of legality, rights, statutes, statutory interpretation, vulnerable rights

Suggested Citation

Lim, Brendan, The Normativity of the Principle of Legality (September 1, 2012). (2013) 37 Melbourne University Law Review 372, Available at SSRN: https://ssrn.com/abstract=2273114

Brendan Lim (Contact Author)

University of New South Wales (UNSW) - Faculty of Law ( email )

Sydney, New South Wales 2052
Australia

HOME PAGE: http://www.gtcentre.unsw.edu.au/node/3436

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