CONSTITUTIONALISM AT COMMON LAW: THE RULE OF LAW AND JUDICIAL REVIEW

Abstract

UK public law is often viewed as a sophisticated power struggle between rival institutions, an approach encouraged by the assumption that the law is ultimately dependent on such contingencies as the existence of an official consensus about its sources. From that perspective, legal judgments should be read as strategic moves within the political power-game. We can make better sense of public law if, instead, we interpret it as the articulation and enforcement of standards of legitimate governance, inspired by universal ideals of individual freedom and human dignity. The rule of Law denies the legal validity of arbitrary, unjustified assertions of power inimical to those ideals. Positive law is, at root, an instantiation of natural law, as the interplay of legal rule and underlying principle, characteristic of common law reasoning, confirms. There are important implications for our understanding of the constitutional foundations of judicial review, the limits of parliamentary sovereignty, the nature of the principle of legality, and the scope and content of fundamental rights.