Unity, Disunity and Vacuity: Constitutional Adjudication and the Common Law
Mark Elliott, Jason NE Varuhas, Shona Wilson Stark, The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart 2018), Forthcoming
Posted: 1 Nov 2017
Date Written: October 30, 2017
The common law is often seen as a unifying and stabilising factor across and within jurisdictions; in the United Kingdom, for instance, the common law is appealed to as a familiar and certain alternative to the unpredictable and overweening impacts of European Human Rights Law. This is in spite of the common law’s propensity for self-reinvention, and in spite of the internal divisions and tensions within both the substance and methodologies of the common law. These ructions are in particular evidence in the constitutional common law and in the common law’s approach to the resolution of fundamental constitutional conflict.
The development of a constitutional dimension to the common law has seen it proclaimed as undertaking functions akin to those performed by a written constitution. Judicial articulation of constitutional rights and statutes recognised at common law undoubtedly poses a challenge to the stability of the domestic constitutional order but also reveals a series of conflicts which threaten the capacity of the common law to unite or stabilise. This paper examines the threats posed to the stability of the common law across three of its potentially unifying aspects: methodological unity, content unity and principle unity.
The methodological unity of the common law can be examined in its inherent incrementalism or fluidity. It is a universally acknowledged characteristic of the common law that it enjoys a capacity for change. Internally, however, this capacity for change may be conditioned by judicial techniques of reasoning – formalism, purposive interpretation, ‘constitutional’ argumentation – which impact upon its capacity for refinement, and do so in ways that might both inhibit and accelerate doctrinal development. The adoption of overtly constitutional techniques of reasoning can increasingly be seen to position the common law as being in tension with those characteristics of the constitution (sovereignty, popular and parliamentary) that impose restraints on the extent to which change might be judicially-engineered.
The doctrinal unity of the common law’s approach to judicial review is also challenged by its adoption of a more constitutionalised approach to adjudication. The adoption of an overtly constitutional approach to adjudication sees a further bifurcation in the common law, as a result of which the terra firma of administrative law is abandoned in the application of more abstract, and principle-based, reasoning. The move away from administrative law doctrine forces recourse to principles of supposed general applicability which may lack the substance to effectively underpin legitimate judicial decision-making and which expose the limits of principle unity within common law constitutional adjudication.
Keywords: common law constitution, Evans v Attorney General, parliamentary sovereignty, principle of legality
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