Suchergebnisse

In a contribution to a symposium on Nick Barber's book, The Principles of Constitutionalism, I argue that Barber is right to explain the principles of constitutionalism by reference to the purpose of a state, but I defend a restatement of that purpose. Barber says that it is to advance the well-being of the citizens. I argue that the purpose is more open-ended: it is to make the political community a good one. The state has duties that are not grounded in the well-being of its citizens, and it may legitimately pursue good public purposes that do not advance its citizens' well-being. The state is for its citizens, not primarily in the sense that it is there to make them better off, but in the sense that it is a way for citizens (and not for outsiders) to act as an organized community.

I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the lawmaker. The idea that authentic interpretation is interpretation by the lawmaker united the Roman emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early 17th century, a new modern approach was emerging in England. The modern approach separates the interpretive power from the legislative power, and allocates the interpretive power to an independent court. I argue that there are some cogent, general considerations in favour of the modern approach. But it is worth identifying the elements of good sense that made it seem that the interpretive power ought to be reserved for the lawmaker. And it is worth identifying the drawbacks in the modern approach; I argue that they are highly relevant to the complex question of how judges ought to interpret legislation.

This is the edited text of the 2016 Robin Cooke Lecture, delivered at Victoria University of Wellington on 15 December 2016. It is a popular idea that public agencies (or perhaps only executive agencies) cannot lawfully do anything unless it is positively authorised by law. Through a discussion of the prerogatives of the Crown, of Parliament and of the courts in the United Kingdom, I argue to the contrary. Public bodies may legitimately do anything that serves the purposes for which they exist, unless it is prohibited by law. Such actions are exercises of lawful power, insofar as they are not unlawful. The Lecture discusses the English High Court's ruling in the case of R (on the application of Miller and another) v Secretary of State for Exiting the European Union. An epilogue explains the Supreme Court decision in Mrs Miller's case and its bearing on the topic of the Lecture.

Canadian constitutional law has been shaped by tacit assumptions about the philosophical foundations of the Constitution, and also by the articulate theorizing of judges, legal scholars, and legal practitioners. We discuss the assumptions behind the country's choice in 1867 of a distinct form of federalism, a parliamentary form of government very different from American republicanism, and a role for judges (particularly in adjudicating the federal division of powers, and in their innovative reference jurisdiction) that judges had never had in the United Kingdom Constitution. The principles of parliamentary government and of federalism, while giving the Constitution a remarkably robust framework, developed in a changing context with the end of Imperial governance. We discuss those developments, and ways in which the judges' role as theorists of the Constitution—enhanced by the Constitution Act, 1982—has burgeoned in that changing context, through their approach to the principles of the Constitution.