Unity, Disunity and Vacuity: Constitutional Adjudication and the Common Law

Masterman, Roger; Wheatle, Se-shauna

Abstract

Roger Masterman Se-Shauna Wheatle Our thanks are due to Mark Elliott and William Lucy for their comments on a previous draft. The common law is often seen as a unifying and stabilising factor across and within jurisdictions; in the United Kingdom, for instance, the common law is appealed to as a familiar and certain alternative to the unpredictable and overweening impacts of European human rights law. This is in spite of the common law’s propensity for reinvention, and the internal divisions and tensions within both the substance and methodologies of the common law. These ructions are particularly evident in the constitutional common law and its approach to the resolution of fundamental constitutional conflict. Though primarily regarded as the vehicle for the realisation of the private law of obligations, the last 20 years have seen the English common law assume a distinctly constitutional character. The articulation of fundamental rights, though lacking...

Citation

Masterman, R., & Wheatle, S. (2018). Unity, Disunity and Vacuity: Constitutional Adjudication and the Common Law. In M. Elliott, J. Varuhas, & S. Wilson Stark (Eds.), The unity of public law : doctrinal, theoretical, and comparative perspectives (123-148). Hart Publishing. https://doi.org/10.5040/9781509915217.ch-006

• Online Publication Date: Apr 19, 2018
• Publication Date: Apr 19, 2018
• Deposit Date: Jun 26, 2017
• Publicly Available Date: Oct 19, 2019
• Publisher: Hart Publishing
• Pages: 123-148
• Book Title: The unity of public law : doctrinal, theoretical, and comparative perspectives.
• ISBN: 9781509915187
• DOI: https://doi.org/10.5040/9781509915217.ch-006
• Public URL: https://durham-repository.worktribe.com/output/1639206
• Contract Date: Jul 17, 2017