scholarly journals Democracy as the legitimating condition in the UK Constitution

Legal Studies ◽  
2018 ◽  
Vol 38 (1) ◽  
pp. 42-58
Author(s):  
Jo Eric Khushal Murkens
Keyword(s):  
Common Law ◽  
Democratic Legitimacy ◽  
Moral Principles ◽  
Westminster Model ◽  
Normative Conception ◽  
Parliamentary Sovereignty ◽  
The Common ◽  
The Uk ◽  
Law Making ◽  
Do So

The UK Constitution is either theorised as a political constitution that is premised on the Westminster model of government or as a legal constitution that rests on moral principles, which the common law is said to protect. Both models conceive of democracy in procedural terms, and not in normative terms. However, the democratic legitimacy of laws stems from a complex constellation of conditions that no longer involves popular or parliamentary sovereignty alone. In this paper, I break with the traditional account that bases law-making authority on the condition of procedural democracy. Instead, I argue for a normative conception of democracy that conditions parliamentary authority. I show that failure to do so amounts to a glaring omission in certain cases.

3. The features and sources of the UK constitution

2021 ◽  
pp. 43-70
Author(s):  
Anne Dennett
Keyword(s):  
Rule Of Law ◽  
Separation Of Powers ◽  
Common Law ◽  
International Treaties ◽  
The Rule Of Law ◽  
Judicial Decisions ◽  
Parliamentary Sovereignty ◽  
Constitutional Conventions ◽  
The Common ◽  
The Uk

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution are that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.

Parliamentary Sovereignty – A Doctrine Unfit for Purpose

ICL Journal ◽  
2015 ◽  
Vol 9 (4) ◽  
Author(s):  
Alexander Orakhelashvili
Keyword(s):  
Legal System ◽  
Common Law ◽  
Public Utility ◽  
Democratic Legitimacy ◽  
Parliamentary Sovereignty ◽  
English Law ◽  
Law Making

AbstractParliamentary sovereignty in the British constitutional context is expressive of the utilitarian philosophy which dictates that government is there to gratify the wishes and interests of the majority to the greatest extent possible. This approach, at times cast in more moderate terms as ‘democratic legitimacy’, arguably reflects the majoritarian underpinnings of British parliamentarism. A close look on the workings of ‘parliamentary sovereignty’ reveals, however, that its discrete constitutional relevance is not great. Courts in the English legal system retain their full-fl edged law-making power, and are entitled to balance the legislation-backed public utility by common law constitutional considerations. The examination of the relevant aspects of English law shows that parliamentary sovereignty is neither sufficient nor necessary for properly articulating and giving effect to the demands of public utility.

Section 7 of the BC Power of Attorney Act: what does it say and why does it say it?

2020 ◽  
Vol 26 (4) ◽  
pp. 307-318
Author(s):  
Joel Nitikman
Keyword(s):  
British Columbia ◽  
New Zealand ◽  
Common Law ◽  
Power Of Attorney ◽  
Long Time ◽  
The Common ◽  
The One ◽  
The Uk ◽  
Do So

Abstract For a very long time, the common law has provided that an agent does not have the authority to sign a sealed document on behalf of the agent’s principal unless the principal granted authority to the agent to do so under seal. It also provides that an agent who enters into a sealed contract becomes a party personally to the contract and the principal is not a party to the so-called sealed contract rule. This article suggests that both common-law rules have been overtaken by certain legislative provisions in force in British Columbia (BC). In particular, the second rule may not have been in force in the UK since the coming-into-force in 1881 of the Conveyancing and Law of Property Act, the operative part of which has been enacted in BC, various states of Australia, New Zealand and various other Commonwealth countries. The article goes on to suggest that the one UK decision relied on by a leading textbook in support of the continuing validity of the sealed contract rule is not a valid authority on that point.

3. The features and sources of the UK constitution

2019 ◽  
pp. 43-68
Author(s):  
Anne Dennett
Keyword(s):  
European Union ◽  
Separation Of Powers ◽  
Common Law ◽  
International Treaties ◽  
European Union Law ◽  
Judicial Decisions ◽  
Parliamentary Sovereignty ◽  
Constitutional Conventions ◽  
The Common ◽  
The Uk

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution is that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; European Union law and international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.

scholarly journals Judicial Review of Legislation in the UK: Fundamental Common Law Principles as "Constitutional Principles" Limiting the Sovereignty of Parliament?

2021 ◽  
Author(s):  
◽  
Bernadette Sangmeister
Keyword(s):  
Judicial Review ◽  
Public Reason ◽  
Common Law ◽  
Theoretical Models ◽  
Point Of View ◽  
Moral Ideal ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Common ◽  
The Uk

<p>The aim of this paper is to explore the role of judicial review of legislation in the UK from a legal constitutionalist’s point of view. After having introduced the reader to the origins of judicial review of legislation in general and the two theoretical models of constitutionalism, the UK’s system of constitutionalism will be analysed in particular. In this context, the process of “juridification” and “judicalisation” will be discussed in order to show that the British doctrine of Parliamentary sovereignty - famously articulated by Dicey in 1885 - is currently under attack. The main focus of this research paper is on the theory of common law constitutionalism (CLC theory), according to which the common law is seen as constituting a higher order of law, a moral ideal and a superior form of public reason, and therefore the ultimate controlling factor of Parliament’s actions. On the basis of the academic theory, the judicial reception of this theory will be analysed with particular attention to the House of Lords’ decision in Jackson in 2005. It will be argued that the system of the common law constitutionalism in the UK is not very different from the system of legal constitutionalism: Firstly, fundamental principles embedded in the common law like the rule of law are similar to constitutional principles of codified supreme constitutions, providing for benchmarks of judicial review of legislation. Secondly, the requirement of exceptional circumstances for invalidating legislation in the CLC system corresponds to the idea of (strong) judicial self-restraint in legal constitutionalist systems.</p>

scholarly journals Judicial Review of Legislation in the UK: Fundamental Common Law Principles as "Constitutional Principles" Limiting the Sovereignty of Parliament?

2021 ◽  
Author(s):  
◽  
Bernadette Sangmeister
Keyword(s):  
Judicial Review ◽  
Public Reason ◽  
Common Law ◽  
Theoretical Models ◽  
Point Of View ◽  
Moral Ideal ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Common ◽  
The Uk

<p>The aim of this paper is to explore the role of judicial review of legislation in the UK from a legal constitutionalist’s point of view. After having introduced the reader to the origins of judicial review of legislation in general and the two theoretical models of constitutionalism, the UK’s system of constitutionalism will be analysed in particular. In this context, the process of “juridification” and “judicalisation” will be discussed in order to show that the British doctrine of Parliamentary sovereignty - famously articulated by Dicey in 1885 - is currently under attack. The main focus of this research paper is on the theory of common law constitutionalism (CLC theory), according to which the common law is seen as constituting a higher order of law, a moral ideal and a superior form of public reason, and therefore the ultimate controlling factor of Parliament’s actions. On the basis of the academic theory, the judicial reception of this theory will be analysed with particular attention to the House of Lords’ decision in Jackson in 2005. It will be argued that the system of the common law constitutionalism in the UK is not very different from the system of legal constitutionalism: Firstly, fundamental principles embedded in the common law like the rule of law are similar to constitutional principles of codified supreme constitutions, providing for benchmarks of judicial review of legislation. Secondly, the requirement of exceptional circumstances for invalidating legislation in the CLC system corresponds to the idea of (strong) judicial self-restraint in legal constitutionalist systems.</p>

Medical Law Concentrate

2021 ◽  
Author(s):  
Jo Samanta ◽  
Ash Samanta
Keyword(s):  
Medical Records ◽  
Common Law ◽  
Medical Law ◽  
Medical Negligence ◽  
Essential Information ◽  
End Of Life Decisions ◽  
Moral Principles ◽  
Healthcare Environment ◽  
Key Points ◽  
The Common

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. Medical Law Concentrate provides a study and revision guide aiming to cover the essential aspects of this rapidly changing field of law. Topics covered include: the contemporary healthcare environment; medical negligence; consent; confidentiality; and access to medical records. The volume also looks at abortion and prenatal harm, assisted reproduction, clinical research, and organ transplantation. Finally, it covers mental health law and the end-of-life decisions. The work is underpinned by reference to statutory provisions and the common law. Where appropriate, pertinent bioethical and moral principles that often underpin the law in this area are discussed, as well as the influence of quasi-law. Reference is made to key points of comparison with other jurisdictions, as well as some socio-legal considerations.

The legal and ethical aspects of telemedicine. 1: Confidentiality and the patient's rights of access

1997 ◽  
Vol 3 (4) ◽  
pp. 179-187 ◽  
Author(s):  
Ben Stanberry
Keyword(s):  
Medical Records ◽  
Common Law ◽  
Medical Data ◽  
Legal Obligation ◽  
The European Union ◽  
Ethical Aspects ◽  
Patients Rights ◽  
Patient’S Rights ◽  
The Common ◽  
The Uk

This paper reviews the principle of confidentiality and the rights of access by patients to their medical records. Confidentiality has been germane to the ethics of medical practice since the time of Hippocrates but the nature of the legal obligation of confidence does not have such a clear pedigree. The introduction of crossborder telemedical consultations presents a very real danger to maintaining the confidentiality of medical data. While both the common law and statute law can be used to prevent the unauthorized interception and disclosure of medical data and protect the patient's rights of access and ownership in the UK, it is the harmonization regime of the European Union that will bring comprehensive regulation and legal clarity to the protection of patients' rights within an increasingly international medical super-specialty'.

Law Making

2019 ◽  
pp. 206-238
Author(s):  
John Baker
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Case Law ◽  
Symbiotic Relationship ◽  
Legal Change ◽  
Inns Of Court ◽  
History Of ◽  
The Common ◽  
Common Learning ◽  
Law Making

This chapter examines the history of case-law, legislation, and equity, with particular reference to legal change. The common law was evidenced by judicial precedent, but single decisions were not binding until the nineteenth century. It was also rooted in professional understanding, the ‘common learning’ acquired in the inns of court. It was based on ‘reason’, operating within a rigid procedural framework. Legal change could be effected by fictions, equity, and legislation, but (except during the Interregnum) there was little systematic reform before the nineteenth century. Legislation was external to the common law, but it had to be interpreted by common-law judges and so there was a symbiotic relationship between statute-law and case-law. Codification has sometimes been proposed, but with limited effect.

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