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The normativity of the principle of legality

Lim, Brendan

Description

The constitutional justification for the principle of legality has been transformed. Its original basis in a positive claim about authentic legislative intention has been repudiated. Statutes today are so far-reaching that it would be wrong to suppose any actual improbability in legislative intentions to abrogate common law rights. Two rival justifications for the principle have emerged in response. One is a refined positive claim: legislatures do not intend to abrogate 'fundamental' rights....[Show more]

dc.contributor.authorLim, Brendan
dc.date.accessioned2015-12-10T23:13:34Z
dc.identifier.issn0025-8938
dc.identifier.urihttp://hdl.handle.net/1885/64479
dc.description.abstractThe constitutional justification for the principle of legality has been transformed. Its original basis in a positive claim about authentic legislative intention has been repudiated. Statutes today are so far-reaching that it would be wrong to suppose any actual improbability in legislative intentions to abrogate common law rights. Two rival justifications for the principle have emerged in response. One is a refined positive claim: legislatures do not intend to abrogate 'fundamental' rights. The other is a normative claim: courts should attribute an intention not to abrogate rights in order to improve the political process. Distinguishing these justifications answers the vexed question of which rights engage the principle of legality. 'Fundamental' rights, in the first claim, just are those rights that legislatures do not, in fact, intend to abrogate. The normativity of the second claim is engaged not by 'fundamental' rights, but by 'vulnerable' rights not adequately protected by the ordinary political process. 'Vulnerable' rights may originate not only in the common law but also in statutes.
dc.publisherMelbourne University Law Review Association
dc.rightshttp://www.sherpa.ac.uk/romeo/issn/0025-8938/ Author can archive publisher's version/PDF (Sherpa/Romeo as of 28/3/2017).
dc.sourceMelbourne University Law Review
dc.source.urihttp://ssrn.com/abstract=2273114
dc.titleThe normativity of the principle of legality
dc.typeJournal article
local.description.notesImported from ARIES
local.identifier.citationvolume37
dc.date.issued2013
local.identifier.absfor180100 - LAW
local.identifier.ariespublicationU3488905xPUB947
local.type.statusPublished Version
local.contributor.affiliationLim, Brendan, ANU College of Law, ANU
local.bibliographicCitation.issue2
local.bibliographicCitation.startpage372
local.bibliographicCitation.lastpage414
dc.date.updated2015-12-10T09:40:20Z
local.identifier.scopusID2-s2.0-84897777156
CollectionsANU Research Publications

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