Common good constitutionalism seeks to ground and legitimate choices of constitutional design and interpretation in a manner committed to pursuing the flourishing of all members of the community. This paper seeks to advance and defend an account of rights-based judicial review from within a common good constitutional framework.
Lawyers and judges often use history in constitutional adjudication to provide context for constitutional interpretation. But there is debate about the extent to which historiography – the critical study of how history is written, developed by professional historians – is relevant to constitutional adjudication. This article argues that historiography has little relevance to constitutional reasoning grounded on historic legal sources such as court cases or legislation.
It is now more than a quarter of a century since the Law Commission completed its ground-breaking report on mental capacity, a report that became the Mental Capacity Act 2005. Since that time, there have been fundamental changes that the Law Commission did not foresee. This paper considers key elements of the Act in light of those changed expectations and the experience of implementation.
This article argues that a liberal theory of property rights can help us resolve a century old debate about a foundational aspect of the trust, namely, the nature of the beneficiary's interest. We argue the orthodox account fails because of the misguided picture of property rights, as essentially the right to exclude. Liberal property theory, by contrast, gives pride of place to divided ownership, of the kind exemplified by the trust, and accounts for all aspects of the beneficiary's right.
This article introduces a ritual theory of judicial dissent. Conventional accounts of the functions of judicial dissent can be grouped into three thematic categories: dissent ‘as transparency’, ‘as opposition’ and ‘as conscience’. While these conventional accounts may be normatively unproblematic, they fail to fully or coherently capture the mechanics by which judicial dissent operates upon institutional authority in practice.
This note explores the holding, context and aftermath of the judgments which declared the so-called ʻimmigration exceptionʼ set out in the UK Data Protection Act 2018 incompatible with, and assumed it subject to, the (UK) General Data Protection Regulation (GDPR) restrictions clause (article 23). The subsequent limitation of this exemption's use to the government is impactful in itself. However, this case has much wider significance.
In Coughlan, the UKSC held that the Minister for the Cabinet Office acted lawfully when making orders which introduced a requirement for voter identification in local government elections. The Court's reasoning appears to misunderstand the operation of the presumptions in favour of a restrictive interpretation of interferences with fundamental rights and of ‘Henry VIII powers’. Ultimately, the Court's approach threatens to erode the principle of legality.
Kathy Bowrey's illuminating new book pursues a narrative that draws equally from legal history and literary chronicles of the late nineteenth and early- to mid-twentieth centuries. The book makes a salient point: in the field of copyright law, there is no legal history without cultural history.
This book offers an alternative type of contribution from other works that have interrogated times of political change, by being grounded in the experiences and approaches of lawyers working through legal and political transition.
| Published | May 2023 |
|---|---|
| Frequency | Bi-Monthly |
| Volume | 86 |
| Issue | 3 |
| Print ISSN | 0026-7961 |
| Online ISSN | 1468-2230 |
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