Cameron Miranda
Common law constitutionalism is a legal theory that suggests that constitutional law develops through a common-law approach rather than the application of the constitutional text. This theory is particularly relevant in the UK, where the Supreme Court has relied more heavily on constitutional rights developed at common law, asserting that common law can protect fundamental rights alongside the European Convention on Human Rights. Common law constitutionalism is also significant in Australia, Canada, and Commonwealth Caribbean jurisdictions, where it has influenced the interpretation of constitutional principles and the principle of legality. This theory has sparked debates about the merits and impact of common law constitutionalism, including the resilience of common-law practices and the transnational relevance of common-law reasoning.
| Characteristics | Values |
|---|---|
| Common law develops primarily in a common-law fashion rather than through the application of the constitutional text | Innovation and meaningful constraints on judges |
| Common law methods are better able to move across temporal and spatial boundaries | Resilience and endurance |
| Common law rights protect fundamental rights alongside the European Convention on Human Rights as applied through the Human Rights Act 1998 | Legitimacy of the legal order and protection from abuses of power |
| The principle of legality has played a prominent role in common law constitutionalism in Australia, the UK, Canada, and the Commonwealth Caribbean | Interpretation of the Constitution |
| Common law thought embraces all morally pertinent reasons and seeks to place each issue within its wider context | Fostering open debate and reasoned argument |
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What You'll Learn
Common law constitutionalism vs originalism
Common law constitutionalism is the belief that constitutional law develops primarily through a common-law approach rather than through the application of the constitutional text. This view, proposed by Professor David Strauss, asserts that this approach allows for innovation while imposing constraints on judges. Strauss' theory is supported by Professor Curtis Bradley, who further argues that common law constitutionalism is superior to an "originalist" approach.
Originalism, on the other hand, is a theory of legal interpretation that asserts that the constitutional text should be given its original public meaning from the time it became law. Originalists believe that the original meaning of the text can be discerned from dictionaries, grammar books, legal documents, and the historical context surrounding its creation. They argue that this original meaning should bind constitutional actors.
One of the key differences between common law constitutionalism and originalism lies in their approach to interpreting the law. Common law constitutionalism emphasizes the evolution of law and allows for flexibility and adaptation to changing circumstances. It grants judges a degree of discretion in articulating the rules and applying them to specific cases. In contrast, originalism seeks to fix the meaning of the law at the time of its enactment, maintaining that the original understanding should be upheld and applied consistently.
However, it is important to note that some originalists acknowledge the role of precedent and common law principles. They argue that originalism permits rules of precedent and that the two concepts can coexist. This view suggests that originalism can accommodate some degree of flexibility and evolution in legal interpretation.
In conclusion, the debate between common law constitutionalism and originalism revolves around the question of whether constitutional law should primarily evolve through a common-law approach or be rooted in the original meaning of the constitutional text. While common law constitutionalism emphasizes flexibility and adaptation, originalism seeks to uphold the original understanding of the law. The debate has significant implications for judicial practice and reform and the interpretation of constitutional texts.
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Transnational engagement
However, there are doubts about the content and scope of the rights available under the common law constitution. For instance, there is a concern that common law rights may lack the precision and scope to effectively replace a written bill of rights. Transnational engagement can help address these concerns by facilitating a dialogue between different jurisdictions and promoting a better understanding of the common law constitution's unifying threads and impact.
The principle of legality, prominent in common law constitutionalism in Australia and the UK, and the implication of unwritten constitutional principles in a range of common law countries, including Canada and Commonwealth Caribbean jurisdictions, are examples of interpretive techniques that sustain a close constitutional relationship across common law jurisdictions. By reducing the impact of differences between written and unwritten constitutionalism, these techniques contribute to the endurance of common law constitutionalist practices.
A transnational perspective on the methods of common law constitutionalism is essential to understanding its merits and impact. It allows for an exploration of the systemic, historical, and geographical dimensions of common law and the resilience of common law methods in persisting beyond temporal and jurisdictional barriers. This perspective highlights the ability of methodological techniques to transcend spatial and temporal boundaries, fostering endurance and coherence within the common law constitution.
In conclusion, transnational engagement on common law constitutionalism is vital to ensuring coherence and addressing concerns about the scope and content of rights. It highlights the unifying interpretive techniques that sustain constitutional relationships and showcases the resilience and endurance of common law methods, contributing to a better understanding of its merits and impact on a global scale.
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Common law and statute
Common law constitutionalism is a concept developed by Professor David Strauss, which argues that constitutional law develops primarily in a common-law fashion rather than through the application of the constitutional text. Strauss contends that this approach is superior to an "originalist" method as it allows for innovation while imposing constraints on judges.
Common law constitutionalism is characterised by its unifying threads with statutes, and its dependence on path dependence to preserve the impact of common-law methods. The common law constitution resists the substitution of reasoned argument for naked will or preference, even in the face of disagreement. This fosters open debate over the nature and scope of basic rights.
The common law approach to constitutional interpretation is particularly relevant in the UK, where the Supreme Court has increasingly relied on constitutional rights developed at common law. This has led to concerns about the precision and scope of rights under the common law constitution. For example, Mark Elliot argues that common law rights may not effectively replace a written bill of rights.
Common law constitutionalism is also significant in Australia, Canada, and Commonwealth Caribbean jurisdictions. In Australia, the principle of legality has played a prominent role in common law constitutionalism, while Canada has seen debates on the legitimacy of using unwritten constitutional principles to interpret the Constitution.
In conclusion, common law constitutionalism is a concept that emphasises the development of constitutional law through a common-law approach rather than strict textual interpretation. It has gained traction in various jurisdictions, including the UK, Australia, and Canada, but has also faced criticisms regarding the scope and precision of the rights it upholds.
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Unwritten constitutional principles
Common law constitutionalism is the idea that constitutional law develops primarily through a common law approach rather than through the application of the constitutional text. This approach allows for innovation while imposing constraints on judges.
The Principle of Legality: This principle holds that laws should be interpreted and applied in a manner consistent with fundamental legal principles and the rule of law. It emphasizes the importance of procedural fairness, natural justice, and respect for basic human rights, as outlined in international charters such as the Universal Declaration of Human Rights and the European Convention on Human Rights. By upholding the principle of legality, common law constitutionalism seeks to prevent arbitrary or unjustified assertions of power and protect individuals from abuses of power.
Transnational Relevance and Coherence: Common law constitutionalism often involves a transnational perspective, where interpretive techniques and principles are shared and applied across multiple jurisdictions. This helps to sustain a close constitutional relationship between common law countries and reduce the impact of differences that may arise from written and unwritten constitutional traditions. Transnational engagement on common law constitutionalism can also ensure coherence within the common law constitution itself, as seen in the UK's reliance on common law rights alongside the European Convention on Human Rights.
Evolution and Adaptability: Common law constitutionalism recognizes the importance of interpreting the law as an evolving corpus that adapts to current conditions. It embraces morally pertinent reasons and seeks to place each legal issue within its wider context. This approach allows for flexibility and the integration of new principles, ensuring that the law remains relevant and responsive to changing societal needs and values.
Judicial Restraint and Parliamentary Sovereignty: Common law constitutionalism emphasizes the role of judges as interpreters and guardians of the constitution. While judges play a crucial role in upholding the constitution, common law constitutionalism also recognizes the importance of parliamentary sovereignty. It asserts that judges should interpret statutes consistently with their purpose and the basic rights of persons, preserving the principal elements of fair procedure without abruptly displacing parliamentary sovereignty with judicial supremacy.
These unwritten constitutional principles of common law constitutionalism contribute to the overall understanding and application of the law, ensuring that it remains adaptable, coherent, and respectful of fundamental rights and freedoms. While the specific implications may vary across jurisdictions, these principles form a crucial framework for the functioning of common law constitutional systems.
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Basic rights and human rights
Common law constitutionalism is a theory that suggests constitutional law develops in a common-law fashion rather than through the application of the constitutional text. This approach is considered superior to an "originalist" approach as it allows for innovation while imposing constraints on judges.
In the context of UK public law, common law constitutionalism interprets legal judgments as articulations of standards of legitimate governance, inspired by universal ideals of individual freedom and human dignity. The rule of law, a fundamental principle within common law constitutionalism, rejects all forms of coercion that violate human dignity as inherently unlawful.
While common law may not explicitly outline certain human rights, it does provide protection in specific areas. For example, common law principles address issues related to children, people with disabilities, and the right to privacy. The right to privacy includes intimate behaviour between consenting adults and freedom of association. Additionally, freedom from slavery and trafficking in persons can be inferred from Lord Mansfield's judgment in Somersett v Stewart (1772).
In Australia, a common law country, the courts have the power to protect human rights principles, including the rule of law, unless overridden by legislation. The Australian Human Rights Commission presumes that Parliament does not intend to limit fundamental rights unless clearly indicated. This presumption safeguards the "principle of legality".
The Human Rights Act (HRA) in the UK has been a subject of debate among constitutionalists. Some argue that it strengthens Parliament by guiding judges' decisions through a specific and democratically enacted list of rights. However, critics suggest that listing rights may not sufficiently constrain judicial discretion due to broad interpretations.
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Frequently asked questions
Common law constitutionalism is the idea that constitutional law develops in a common-law fashion rather than through the application of the constitutional text.
Common law constitutionalism allows for innovation and imposes meaningful constraints on judges. It also helps to ensure coherence within the common-law constitution and can protect fundamental rights.
In Australia and the UK, the principle of legality has played a prominent role in common law constitutionalism. In Canada and Commonwealth Caribbean jurisdictions, the implication of constitutional principles has been influential.
Some critics argue that common law rights lack precision and scope and cannot effectively replace a written bill of rights. There are also concerns about the content and scope of the rights available under the common law constitution.
