Dogmatic Liberalism? T.R.S. Allan and the Common Law Constitution
| Author | Thomas Poole |
| DOI | http://doi.org/10.1111/1468-2230.00390 |
| Date | 01 May 2002 |
| Published date | 01 May 2002 |
REVIEW ARTICLE
Dogmatic Liberalism? T.R.S. Allan and the Common
Law Constitution
Thomas Poole
T.R.S. Allan,Constitutional Justice: A Liberal Theory of the Rule of Law,
Oxford: Oxford University Press, 2001, 331pp, hb £40.00.
Common law constitutionalism is a potent phenomenon within contemporary
public law discourse. While its proponents might disagree on matters of detail, the
main lines of the theory are well defined.1The common law is said to comprise a
network of moral principles which reflect values considered to be fundamental. By
virtue of this unique connection with basic moral principles, the common law is
thought to constitute the political community by incorporating a set of higher-order
values against which the legality of governmental decisions may be tested. Rights
are the juridical residue of these higher-order principles and public law is
reconceived as a vehicle for the protection of those rights against the state. The
courts, on this account, assume a pivotal role in the polity: John Griffith’s notion of
the ‘political constitution’ is turned on its head in favour of a system of consti-
tutional politics whose central institution is the common law court.2
Theories of the common law constitution, as well as doctrinal work grounded in
the assumptions of that theory, are prevalent in the literature to such a degree that a
new orthodoxy seems on the verge of being formed. Sir John Laws’ vigorous
defence of the idea of common law as a higher order of law, built on Aristotelian
and Kantian foundations,3has already received critical attention in this journal.4
Dawn Oliver has advanced a related, yet original, thesis according to which five
pervasive ‘common values’ together constitute a framework of ‘higher order
duties of good administration, high principles or institutional morality’.5At a more
doctrinal level, Jeffrey Jowell and Anthony Lester have consistently maintained
that the courts should pay more attention to the substantive dimension of their
public law jurisprudence, arguing in particular that rights cannot be protected
adequately under the pre-existing Wednesbury regime.6Paul Craig, meanwhile, has
spearheaded an assault on the ultra vires principle. Craig suggests that ultra vires
ßThe Modern Law Review Limited 2002 (MLR 65:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 463
* School of Law, University of Nottingham.
1 See M. Loughlin, Public Law and Political Theory (Oxford: Clarendon, 1992), 206–229; D.
Dyzenhaus, ‘The Politics of Deference: Judicial Review and Democracy’ in M. Taggart (ed), The
Province of Administrative Law (Oxford: Hart, 1997).
2 J. A. G. Griffith, ‘The Political Constitution’ (1979) 42 MLR 1.
3 Sir J. Laws, ‘The Constitution: Morals and Rights’ (1996) PL 622.
4 J. A. G. Griffith, ‘The Brave New World of Sir John Laws’ (2000) 63 MLR 159.
5 D. Oliver, ‘The Underlying Values of Public and Private Law’ in Taggart n 1 above, 230–231. See,
further, Oliver, Common Values and the Public-Private Divide (London: Butterworths, 1999) and my
review of that book: (2000) 63 MLR 629.
6 J. Jowell and A. Lester, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ (1987)
PL 368. See, further, Jowell, ‘Beyond the Rule of Law: Towards Constitutional Judicial Review’
(2000) PL 671.
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