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Liberty IntactHuman Rights in English Law$
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Michael Tugendhat

Print publication date: 2016

Print ISBN-13: 9780198790990

Published to Oxford Scholarship Online: February 2017

DOI: 10.1093/acprof:oso/9780198790990.001.0001

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Limits to Legislation

Limits to Legislation

(p.187) 14 Limits to Legislation
Liberty Intact

Michael Tugendhat

Oxford University Press

Parliament is a a permanent constitutional convention. Judges can judicially review all legislation that is not a statute. A codified constitution and a statute differ from human rights: they are statement by a people. The American Declarations of Rights were to protect rights already recognized by, not to reform, the laws. The French Declaration set standards for reform of the law and for the people and the legislature (but not the courts). In England (and France until 1971) rights were subject to statutes (légicentrisme). English courts enforce human rights by declaring secondary legislation to be void. They do this in judicial review, and in ordinary litigation. Judges used the principle of legality to interpret statutes so that they do not interfere with rights. Human rights recognized by the common law there can have no ‘original meaning’: there is no time at which anyone agreed it.

Keywords:   parliamentary supremacy, constitution, habeas corpus, original meaning, principle of legality, légicentrisme, striking down, US Constitution, Agreement of the People

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