The essence of common law constitutionalism: studies of judicial interpretation in context

Abstract

This thesis is concerned with common law constitutionalism, the essence of which is not content or doctrine, but method: judicial interpretation. Common law judges are always interpreting the law; and in interpreting, straining towards the assertion of final interpretive authority over the law. How this principle of the Common Law manifests itself, however, depends on the history and culture - the context - in which the lawyers and judges work. A certain approach to interpretation may be acceptable to one interpretive community, but it may not be to another. It depends on the community which is both the maker and subject of the law: how the community understands the operation of the law, its origins and purpose; the distribution of authority within the community as a whole; and received practices and ideals about the law. In short, a 'paradigm' - an agglomeration of ideas pertaining to the 'legal' accepted by the interpretive community. In general, the presence of a paradigm - be it parliamentary sovereignty, constitutional democracy or otherwise - determines to what extent judges may 'interpret' and mould the law. This idea is explored in a number of 'trouble-cases' in different jurisdictions. These 'trouble-cases' exhibit one common feature: in each of them, some principle, value, rule or institution is asserted by the judiciary as 'fundamental' and beyond the reach of the legislature. The thesis begins with a discussion of the constitutional thought of Sir Edward Coke and Sir Mathew Hale, whose actions, decisions and extra-judicial writings have provided a model - perhaps a myth - which many common lawyers still subscribe to: the idea that it is the judges who have final interpretive authority over the law. This idea lives on in more modern times. In the United States, the courts are the final arbiters of what the Constitution means. In India, the courts have gone even further, asserting that they have final authority to determine the substantive validity of constitutional amendments. In England and New Zealand, however, the courts have remained more submissive - although in the case of New Zealand, this may slowly be changing, partly due to the efforts of one judge, and partly because of a particular statutory enactment. Why the courts in these countries have come to different conclusions about the role of judiciary in interpreting the law is, as we have said, because of the different understandings of the law that their respective communities have. History and culture help determine what values a community considers important. The thesis concludes by suggesting that because common law interpretation is contingent upon the historical moment - that common law judges must ensure that the law is in harmony with the ongoing culture - that the law is always changing, and its exact content and contours can never be fully known. The 'ought' is always becoming the 'is'. What alone remains constant is the fundamental principle of common law constitutionalism: that the judges interpret, and in interpreting, strain towards the assertion of final interpretive authority over the law.