Chapter

Legislation and the Common Law

T. R. S. Allan

in Law, Liberty, and Justice

Published in print December 1994 | ISBN: 9780198259916
Published online March 2012 | e-ISBN: 9780191682025 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198259916.003.0004

Series: Clarendon Paperbacks

Legislation and the Common Law

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There is an important sense in which common law is superior to statute. As a body of evolving principle, common law provides stability and continuity. Its settled doctrines and assumptions, though always open to reconsideration and challenge, constitute a framework into which legislation must be fitted. No statute, however radical or important its objectives, can be interpreted in isolation from the legal system of which it forms a part. Its meaning will inevitably be dependent, to some degree, on the expectations and preconceptions of those subject to its requirements. This chapter suggests that the courts must attempt, in particular cases, to accommodate the requirements of both fairness and justice. Legislative supremacy dictates obedience to statutes in accordance with the demands of fairness: a statute is the product of the procedure devised to ensure the equal participation in government of every citizen.

Keywords: fairness; statutes; common law rights; legislative supremacy; Dworkin; popular morality

Chapter.  14498 words. 

Subjects: Constitutional and Administrative Law

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