From unwritten to written : transformation in the British Common-Law constitution

• Main Author: Jenkins, Christopher D.
• Other Authors: Glenn, H. P. (advisor)
• Format: Others
• Language: en
• Published: McGill University 2002
• Subjects: Law.
• Online Access: http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=32807

This thesis proposes that the United Kingdom's constitution is changing so as to incorporate written principles that restrain Parliament through judicial review. This model originates in the common law as well as the orthodox theories of Blackstone and Dicey. It is supported by the ultra vires doctrine and provides a basis for judicial review of Parliament itself. As constitutions may accommodate written and unwritten elements, along with various means of enforcement and change, they are defined by how strongly they reflect underlying norms. This expressive function, with a shift in the rule of recognition endorsing judicial review, democratically legitimizes constitutional texts as positivist expressions of popular will binding Parliament. Furthermore, through common-law adjudication, courts may constitutionalize statutes or treaties coming over time to represent shifting norms. This "quasi-written" common-law constitution is already emerging in the United Kingdom, as illustrated through cases based upon the Human Rights Act and the European Communities Act.