An Interpretivist Theory of the Principle of Legality

In this thesis, I develop a theory of the ‘principle of legality’, the method of statutory interpretation used by judges of UK courts where fundamental common law rights and principles are at issue. While both judges and public law theorists have engaged with this method of interpretation at length, I identify a number of important questions about it that remain unanswered. In order to develop answers to these questions, I first argue that any theory of statutory interpretation must be premised on a broader theory of general jurisprudence, that is, a theory about the nature of legal rights and obligations. I endorse a non-positivist account of legal obligations, wherein such obligations are viewed as genuine moral obligations. In particular, I argue that Ronald Dworkin’s theory of ‘law as integrity’ makes the best sense of the principle of legality. On this view, the correct interpretation of a statute is determined by principles of political morality. When judges employ the principle of legality, they are engaged in first order moral questions about the obligations that obtain in virtue of the statute’s enactment. This view, I argue, does a better job of accounting for key aspects of the practice than other theories, in particular those that view the principle of legality as a method of working out the intentions of the legislature. I show that a non-positivist theory of the principle of legality leads us to better answers to the outstanding questions identified at the beginning of the thesis

Unconstitutional Evictions

Earlier this year, the Irish Government pressed ahead with plans to allow a temporary legislative ban on ‘no-fault’ evictions to expire. In this article, I argue that Article 40.5 of the Constitution, which protects the inviolability of the dwelling, would be implicated in any case in which the courts must decide whether the law requires them to enforce evictions against tenants. This is the position even in cases involving private landlords, and where the tenants continue to occupy the landlord’s property in defiance of a valid notice of termination. To make this argument, I analyse the case law surrounding Art 40.5 and offer an account of the normative underpinnings of that provision. In early cases, it was thought that Art 40.5 was concerned with forcible entry into one’s home by the State. While this is certainly a relevant aspect of Art 40.5, I argue that subsequent cases make clear that this provision is underpinned by a richer conception of the moral value of the home. Drawing on recent work in moral philosophy, I argue that the ‘dwelling’ referred to in the Constitution has an important social aspect. We have standing to demand that our home, or dwelling, is not interfered with because control over a private space of one’s own is essential for forming intimate human relationships and pursuing valuable ends. When we see that this is the conception of the dwelling with which Art 40.5 is concerned, it becomes clear that tenants have standing to demand a heightened level of justification from the State before their eviction is enforced

One-system integrity and the legal domain of morality

According to contemporary nonpositivist theories, legal obligations are a subset of our genuine moral obligations. Debates within nonpositivism then turn on how we delimit the legal “domain” of morality. Recently, nonpositivist theories have come under criticism on two grounds. First, that they are underinclusive, because they cannot explain why paradigmatically “legal” obligations are such. Second, that they are overinclusive, because they count as “legal” certain moral obligations that are plainly nonlegal. This paper undertakes both a ground-clearing exercise for and a defense of nonpositivism. It argues, in particular, that Dworkin's claims about the legal domain of morality in his later work are often mischaracterized by critics, because these critics fail to read these claims in light of his earlier theory of “Law as Integrity.” A nonpositivist theory that unifies Dworkin's earlier and later work, I argue, deals with the criticisms leveled at nonpositivist theories better than other nonpositivist competitors

Preface

Preface to Volume 6, Issue 2 of the UCL Journal of Law and Jurisprudence, by the editors

Preface

Preface to Volume 6, Issue 1 of the UCL Journal of Law and Jurisprudence