Elements of Legislation by Neil Duxbury

By Neil Duxbury

In parts of laws, Neil Duxbury examines the historical past of English legislation in the course of the lens of felony philosophy that allows you to draw out the diversities among judge-made and enacted legislation and to give an explanation for what courts do with the legislation that legislatures enact. He provides a sequence of carefully researched and thoroughly rehearsed arguments in regards to the law-making features of legislatures and courts, the options of legislative supremacy and judicial evaluation, the character of legislative motive and the middle rules of statutory interpretation.

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That enacting rules of general applicability should be the job of legislatures but not courts seems straightforwardly explicable in terms of democratic mandate: the former has one whereas the latter does not. But there is more to it than this. It makes sense that legislatures should have the responsibility for making generally applicable law because, as compared with courts, they are equipped to take into account a wider range of facts, affected parties, competing interests and alternative options.

13 Dr Bonham’s Case (1610) 8 Co. Rep. 107a, 118a. 20 But in England the argument had, by the time of the American Revolution, been unequivocally rejected. ‘I know it is generally laid down’, Blackstone observed in 1765, ‘that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be See Baker, ‘Human Rights and the Rule of Law’, xv. See Theodore F. T. Plucknett, ‘Bonham’s Case and Judicial Review’ (1926) 40 Harvard L. Rev. 30, 36–45. , ibid. 49–50, 52; Charles M.

88 See Baker, An Introduction to English Legal History, 207. 89 See generally G. R. Elton, ‘Lex Terrae Victrix: The Triumph of Parliamentary Law in the Sixteenth Century’, in his Studies in Tudor and Stuart Government and Politics. Volume IV: Papers and Reviews 1982–1990 (Cambridge University Press, 1992), 37–57. , the Statute of Repeal 1553. See Elton, ‘Lex Terrae Victrix’, 53; Martin Loughlin, Foundations of Public Law (Oxford University Press, 2010), 253. 85 Introduction 25 Finally, because of the tendency of government officers, from the mid Â� Â� fifteenth century onwards, to insert into bills the exact wording of proposed statutes, parliament was increasingly inclined to adopt the ipsissima verba of the bill rather than the general policy embodied in it.

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