The lively debate over the constitutional foundations of judicial review has been marred by a formalism which obscures its point and value.ed from genuine issues of substance, the rival positions offer inadequate accounts of the legitimacy of judicial review; constitutional theory must regain its connection with questions of political principle and moral value. Although the critics of ultra vires have rightly emphasized the foundational role of the common law, they have misconceived its nature and implications. On the one hand, they (...) have invited the charge of judicial supremacism by marginalizing the role of legislative intent; on the other, their affirmation of absolute parliamentary sovereignty (within the context of this debate) undermines the critique of ultra vires. In substance, therefore, the rival camps occupy essentially the same ground, equally trapped by a formalism that entrenches a stark confrontation between parliamentary sovereignty and the rule of law. A conception of shared sovereignty, or interdependent sovereignties, provides a better foundation for judicial review. (shrink)

The Sovereignty of Law presents Trevor Allan's most recent and fully elaborated defence of common law constitutionalism - an account of the unwritten or non-codified constitution as a complex articulation of legal and moral principles, defining what in the British context are the requirements of the rule of law. The British constitution is conceived as a coherent set of fundamental principles of the rule of law, legislative supremacy, and separation of powers. These principles.

Ronald Dworkin's theory of law forges a close connection between questions about the truth of propositions of law and the question of political obligation: law as integrity is a theory of legal practice that purports to explain, not only how the content of law is determined, but also why the law—in ordinary cases—imposes an obligation of obedience. The theory (as presented) is ultimately incoherent. If we accept Dworkin's theory of the grounds of law we are obliged to reject his claims (...) about its force; alternatively, if we accept his view of the force of law, we must reject his theory about its grounds: he cannot be correct about both force and grounds. Dworkin supposes that, in extraordinary cases, the force of law is cancelled or overridden; but the relevant considerations of justice are wholly internal to our identification of the content of law. Consistently elaborated, integrity denies the offending requirements legal status: lex injusta non est lex. (shrink)

My analysis of the constitutional foundations of judicial review has been criticized by Paul Craig; but his objections confuse the ‘constructive’ account of legislative intent I defend with the ‘literal’ conception (reflecting the views of individual legislators) I expressly repudiate. He thinks we must choose between legislative intent, literally conceived, and common law principle. This mistake exemplifies the peculiar character of Craig's ‘common law model’ of judicial review, in which the requirements of the rule of law, on one hand, and (...) the relevant statute, on the other, exist in separate mental worlds. That model is conceptually confused, rejecting the doctrine of ultra vires that (unqualified) legislative supremacy entails, and ultimately grounded in a wholly implausible view of the relationship between common law and statute. It subordinates both statutory text and purpose to common law doctrine, treated as largely self-contained and impervious to context. It ignores the interdependence of legislative and judicial power, impeding a genuine integration of statutory command and common law principle. (shrink)

When legal practice satisfies certain modest conditions of legitimacy, affirming the equal dignity of persons, the law is what it ought to be. It provides the morally appropriate basis for the reso...