Legality , Justice, and the Common Law

Conor Crummey’s new book on the principle of legality is a very welcome contribution to debate about the judicial role in the UK constitution, challenging orthodox views about the nature of law and hence also Parliamentary sovereignty. He rightly rejects the standard positivist picture in which that doctrine rests on convergent official opinion, which puts it in constant tension with the rule of law or the moral ideal of legality. I shall argue, however, that Crummey’s divergence from Dworkin’s interpretative style of jurisprudence, in favour of Greenberg’s explicitly non-hermeneutic approach, is problematic, threatening the common law foundations of judicial review. The principle of legality should be understood as defusing the tension between the rule of law and Parliamentary sovereignty by integrating statute with the corpus juris, informed by the principles that reflect a distinctive practice and tradition. It is not a matter of bringing moral judgment to bear on a statute standing alone, let alone of pondering the right response to unjust enactments. Crummey’s legal conclusions are sometimes at odds with the logic of his own jurisprudential standpoint. I hope my critique will stimulate further reflection on the timely and courageous intervention made by this absorbing book.