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THE GOOD CONSTITUTION

Published online by Cambridge University Press:  27 November 2012

John Laws Sir
John Laws Sir*
Affiliation:
This is a revision of the 12th Sir David Williams Lecture, given at Cambridge on 4 May 2012.
*
Address for correspondence: Royal Courts of Justice, Strand, London WC2A 2LL. Email: [email protected].
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Abstract

The “good Constitution” in a democratic country seeks to balance the morality of law and the morality of government. The good Constitution can be considered at the levels of abstraction of the relationship to human rights or of the progression from parliamentary to constitutional supremacy. But this article suggests that the level of the balance between the two moralities is more fruitful. The morality of law focuses on individual rights, the morality of government on the public interest. The constant task of the Constitution is to achieve an accommodation by restraint on the part of both the judges and the executive.

Keywords

Parliamentary sovereigntyjudicial reviewhuman rightsUK Constitution
Type
Articles
Information
The Cambridge Law Journal , Volume 71 , Issue 3 , November 2012 , pp. 567 - 582
Copyright
Copyright © Cambridge Law Journal and Contributors 2012

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References

1 The funeral speech: Thucydides, History of the Peloponnesian War, trans. R. Crawley (London 1910), 2.40.

2 Trans. Paul Wilson (London 1985), section III.

3 See for example the Attorney General's speech at Lincoln's Inn on 24 October 2011: The European Convention on Human Rights: Current Challenges (http://www.attorneygeneral.gov.uk, last visited 25 September 2012); Lord Irvine of Lairg, A British Interpretation of Convention Rights, UCL Judicial Institute and the Bingham Centre for the Rule of Law, 14 December 2011 (http://www.biicl.org/files/5786_lord_irvine_convention_rights.pdf, last visited 25 September 2012); and note the proceedings of the Brighton Conference on the European Court of Human Rights, April 2012 (see http://www.echr.coe.int/ECHR/EN/Header/The+Court/Reform+of+the+Court/Conferences, last visited 25 September 2012).

4 [2003] Q.B. 728.

5 In Vriend [1998] S.C.R. 493 at 563.

6 (Oxford 2009), ch. 3, p. 82.

7 Ibid.

8 Judicial and Political Decision-Making: The Uncertain Boundary (http://www.legalweek.com/digital_assets/3704/MANNLECTURE_final.pdf, last visited 25 September 2012).

9 Sir Stephen Sedley, Judicial Politics, London Review of Books vol. 34 No. 4, 23 February 2012.

10 See for example Law's Empire revised edition (Oxford 1998), pp. 221–4, 243–4, 310–12, 338–9, 381.

11 In On What Matters (Oxford 2011), to which I refer further in the text, Derek Parfit suggests (ch. 14, p. 342) that a revised version – “Everyone ought to follow the principles whose universal acceptance everyone could rationally will” – “might be what Kant was trying to find: the supreme principle of morality”.

12 See for example Peter Singer's review in the Times Literary Supplement for 20 May 2011.

13 Parfit, op. cit., pp. 411–417.

14 Hudson County Water Co v McCarter, 209 US 349, 355 (1908).

15 See generally Bingham, T., The Rule of Law (London 2010). In ch. 7 (p.66)Google Scholar Lord Bingham quotes Joseph Raz on the “thin” theory (Raz, J., The Authority of Law: Essays on Law and Morality (Oxford 1979), pp. 211, 221).CrossRefGoogle Scholar Lord Bingham himself is firmly in the “thick” theory camp: see The Rule of Law, p. 67.

16 Op. cit., p. 271.

17 See, amongst many discussions, Professor Aharon Barak, Human Rights and their Limitations: The Role of Proportionality, FLJS Annual Lecture in Law and Society, 4 June 2009 (http://www.fljs.org, last visited 25 September 2012).

18 Op. cit.

19 [2004] 2 A.C. 323 at [20].

20 Note the observations of Lord Steyn and Lord Hope in Jackson & Ors v Attorney General [2005] UKHL 56 at [102] and [159] respectively.

21 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223.

22 Cited in Simpson, A.W.B., In the Highest Degree Odious: Detention without trial in Wartime Britain (Oxford 1992), 391Google Scholar.

23 Reid, Lord, “The Judge as Lawmaker” (1972) 12 Journal of the Society of Public Teachers of Law 22Google Scholar.

24 Quoted by Fuller, Lon, The Morality of Law, revised edition (New Haven 1969), 152Google Scholar.