Comparative Law and the Ius Gentium

Constitutional principles are sometimes invoked in adjudication as a bridge to foreign law. This article argues that a cosmopolitan approach, such as that advocated by Jeremy Waldron through his ius gentium theory, is useful in accounting for the use of constitutional principles by courts insofar as the commonality of language and methodology surrounding the use of constitutional principles is connected to societal and institutional needs. The article argues that constitutional principles often serve as a connection to foreign law because the principles are applied as representations of a societal need for order and stability. At the same time, the article cautions that transnational judicial dialogue is impacted by compartmentalisation and divergence. Consequently, arguments for a ius gentium must be more cautious and nuanced. As a step in this direction, the article proposes two ideas for modifying the ius gentium theory: conceiving of the ius gentium as an emerging but not yet fully realised system and characterising the ius gentium as a convergence of methodology rather than substantive norms

Common Law Constitutionalism Through Methodology

This paper makes the case that methodology is a cornerstone of the advance of common law constitutionalism both within jurisdictions and transnationally. Common law methods, including interpretive presumptions and reasoning by unwritten principles, are central to an appreciation of the development of common law constitutionalism. Moreover, methodological practices present a more fruitful basis for lasting common law constitutionalism in several respects. Firstly, methods have the potential to survive legislative winds of change. Path dependence (in the sense that legal decisions and outcomes are shaped by the historical sequence of legal developments) points to the retention of techniques through embedded judicial practice. Secondly, methods also travel well across borders and thereby enable further development of the transnational dimension of common law constitutionalism. Common law methods are capable of adaptation across borders; they are less susceptible to barriers erected by claims of national or constitutional identity. Against this background, I argue that debates about the merits and impact of common law constitutionalism must contain and respond to accounts of the methods engaged in common law constitutionalist reasoning

A Common Law Resurgence in Rights Protection?

Following a period of relative dormancy, the UK Supreme Court has revitalised the notion that the common law might provide effective protection for human rights. In Osborn v Parole Board , Kennedy v Information Commissioner and A v BBC the Supreme Court has provided support for the suggestion that the common law—and not the jurisprudence of the European Court of Human Rights—should be the primary source of legal authority for a domestic court considering an issue of individual rights. This piece traces this resurgence of common law rights reasoning, and assesses the nature of the primacy it seeks to accord to the common law

Unity, Disunity and Vacuity: Constitutional Adjudication and the Common Law

Roger Masterman Se-Shauna Wheatle Our thanks are due to Mark Elliott and William Lucy for their comments on a previous draft. 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 reinvention, and the internal divisions and tensions within both the substance and methodologies of the common law. These ructions are particularly evident in the constitutional common law and its approach to the resolution of fundamental constitutional conflict. Though primarily regarded as the vehicle for the realisation of the private law of obligations, the last 20 years have seen the English common law assume a distinctly constitutional character. The articulation of fundamental rights, though lacking..

Dialogue on the Impact of Coronavirus on Research and Publishing: Monday 22nd June 2020

This roundtable took place via Microsoft Teams on Monday 22nd June 2020 to discuss the impact of COVID-19 on Research and Publishing in the U

The impact of implied constitutional principles on fundamental rights adjudication in common law jurisdictions

This thesis explores the roles played by implied constitutional principles in fundamental rights cases in the common law jurisdictions of Canada, Australia, the Commonwealth Caribbean, and the United Kingdom. The two principles selected for this research are the separation of powers and the rule of law, both of which are relied upon in courts in common law states. The thesis examines the types of cases in which such principles are used, the possible reasons for the appeal of these principles, and the functions that they play in fundamental rights adjudication. The thesis begins with a brief discussion of the applications of the rule of law and the separation of powers, outlining the content of these principles as applied by the courts. However, the bulk of the analysis throughout the thesis is concerned with a thematic study of the functions played by the principles. It is argued that the principles are used as interpretative aids, as independent grounds for invalidating legislation, and as gateways to comparative legal analysis. The thesis ends by showing the necessary preliminary work that must be undertaken in order to engage in a thorough normative analysis of the use of implied principles in rights adjudication. Throughout the thesis, several themes are identified as key to our understanding of the functions played by implied principles in the cases discussed. One such theme is legitimization, specifically the role the principles play in the attempt to legitimize arguments, state institutions (particularly the courts), and the state itself. The theme of institutional self-protection also arises; it is evident in the use of principles to protect the jurisdictional sphere of the courts. The analysis of the operation of implied constitutional principles also highlights the legacy of Empire and the deployment of traditional principles to signal the maintenance of democratic traditions and institutions.</p