Chapter

Constitutional Rights and 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/9780198259916.003.0006

Series: Clarendon Paperbacks

Constitutional Rights and Common Law

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The dogma of parliamentary sovereignty, and the absence of a higher or fundamental law to which legislation must conform, has tempted many commentators to deny the existence of constitutional rights in Britain. The fundamental rights of citizens enjoy only the protection of the common law, and are therefore vulnerable to statutory encroachment at the hands of a simple parliamentary majority. In addition, the common law concept of liberty is only residual, it is usually alleged: freedom is what remains after statutory and common law restrictions have been taken into account. The idea of liberty as residual reflects the fundamental principle of the rule of law that every invasion of individual liberty by the state is prima facie illegal; and everything which is not expressly forbidden the individual is permitted. However, the common law is also solicitous of liberties — particular liberties recognized as having intrinsic value in a free society.

Keywords: constitutional rights; common law; liberty; residual liberty; fundamental rights; entrenched rights

Chapter.  13159 words. 

Subjects: Constitutional and Administrative Law

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