COMMON LAW CONSTITUTIONALISM THROUGH METHODOLOGY.

• Author: Wheatle, Se-shauna
• Position: Unwritten Constitutional Norms and Principles: Contemporary Perspectives

Introduction I. The Scope of the Article: The Methods of Common Law Constitutionalism in Transnational Perspective II. Common Law Constitutionalism III. Endurance A. Commonality Between Common hi w and Statutory' Methods B. Path Dependence IV. Portability A. Common Law Unity B. Principle of Legality and Implication of Constitutional Principles 1. Principle of Legality 2. Implication of Constitutional Principles V. Coherence and Common Law Methods Conclusion Introduction

Methods are a cornerstone of the advance of common law constitutionalism, both within jurisdictions and in the transnational sphere. Common law methods, including interpretive presumptions and reasoning by unwritten or implied principles, are central to an appreciation of the development of common law constitutionalist thought. Common law constitutionalism has attracted renewed attention as a result of the resurgence of common law constitutional rights in United Kingdom jurisprudence, alongside the continued invocation of unwritten constitutional principles in other common law jurisdictions. Commentary on common law constitutionalism has at times discounted the increased reference to unwritten norms by stressing the limitations on their substantive content. This claim suggests that only a limited number of rules and principles are referenced and that they possess limited normative force, particularly over legislation. (1) Yet, common law constitutionalism remains a prominent feature of constitutional law in anglophone countries. This article argues that common law methodology is an integral feature of the continuing relevance of common law constitutionalism. Accordingly, regardless of the limitations of substantive common law norms, the methods employed in common law constitutionalism are crucial in appreciating the endurance and influence of common law constitutionalism.

Methodological practices provide a fruitful basis for lasting common law constitutionalism in several respects. First, methods have the potential to survive legislative winds of change. Path dependence (in the sense that legal decisions and outcomes are shaped by historical legal developments) points to the retention of techniques through embedded judicial practice. Second, methodologies travel well across borders and thereby enable the growth of the transnational dimension of common law constitutionalism. Common law methods are capable of transferral and adaptation across jurisdictions. While methods may be contested, they often do not carry the baggage of substantive norms and are less susceptible to barriers erected by claims of national or constitutional identity. Both characteristics speak to resilience or endurance--the ability to persist beyond barriers, whether temporal or jurisdictional. In short, methodological techniques are generally better able than substantive norms to move across temporal and spatial boundaries. Against this background, I argue that debates about the merits and impact of common law constitutionalism must include and respond to accounts of the methodologies of common law constitutionalist reasoning.

To explore these ideas, this paper proceeds along the following path. Part I sets out the scope of the article, outlining what is meant by methodology and explaining the value of a transnational perspective on the methods of common law constitutionalism. Part II then provides a brief account of common law constitutionalism. Here I note the systemic, historical, and geographical dimensions of the common law, as well as the core characteristics of common law constitutionalism. Part III then addresses the factors that facilitate the endurance of common law constitutionalist practices by discussing the unifying threads between common law and statute and the influence of path dependence in preserving the impact of common law methods. The transnational relevance of common law constitutionalist reasoning and discourse is then discussed in Part IV, with particular attention to the use of the principle of legality and the implication of unwritten constitutional principles in a range of constitutional settings. I suggest that these two interpretive techniques work to sustain a close constitutional relationship across common law jurisdictions, reducing the impact of differences occasioned by written and unwritten constitutionalism. Methodological practices are accordingly at least as pivotal as substantive principles in sustaining the endurance and transnational reach of common law constitutionalism. Part V then explores the impact of these methodological practices on the coherence of the common law. This section questions whether the advance and influence of the techniques employed by courts in common law constitutionalist reasoning disturb the coherent relationship between substance and method within the common law. I suggest that transnational engagement on common law constitutionalism may assist in ensuring coherence within the common law constitution.

1. The Scope of the Article: The Methods of Common Law Constitutionalism in Transnational Perspective

   The article is primarily prompted by renewed attention to common law constitutionalism--particularly common law rights--in the UK, and some of the trends that have emerged in the academic discourse on this resurgence. (2) The UK Supreme Court has, in recent years, placed increased rebanee on constitutional rights developed at common law, asserting the ability of the common law to protect fundamental rights alongside the European Convention on Human Rights as applied through the Human Rights Act 1998 (HRA). (3) Yet, significant doubts have been expressed in the UK literature regarding the content and scope of the rights available under the common law constitution. (4) Mark Elliott, for instance, voices the concern that common law rights lack sufficient precision and scope to effectively replace a written bill of rights in the form of the European Convention on Human Rights. Elliott therefore maintains that judicially recognized common law rights "occupy a terrain substantially narrower than that occupied by the Convention rights." (5) The unwritten nature of common law rights has also elicited the caution that "[e]ven where common law rights have been established for many years, the absence of express words means that these rights are less certain in scope, their underlying justification often unclear." (6) Even in the wake of the resurgence of common law rights in UK courts, enthusiasm for this reawakening has been tempered by the caution that common law rights have a "traditional limited status" in UK law (7) and that the recent cases relate to a narrow area of law regarding issues of open justice and fairness. (8)

   This skeptical view prompts a consideration of whether we ought to reflect on the potential of common law constitutionalism beyond the substantive norms--including rights and general principles--that have been articulated in the courts. Arguably, much of the value of common law constitutionalist adjudication lies in the methods employed by judges in such cases. (9) Methods speak to the process of developing a norm and applying it to the facts, rather than the substance of the norm applied or the resulting decision. (10) Methodology therefore encompasses the techniques for determining the meaning of norms, the application of norms, and their relationship to each other. Within common law constitutional adjudication, such techniques include the vaunted principle of legality, which has played a prominent role in common law constitutionalism in Austraha and the UK, and the implication of constitutional principles, which has been influential in a range of common law countries including Canada and the jurisdictions of the Commonwealth Caribbean.

   With a turn toward methods, this article therefore seeks to develop on commentary that goes beyond the content and reach of common law rights and principles. Much of that commentary can be found in common law jurisdictions such as Australia and Canada, though there are also significant recent examples in the UK. There is a wealth of Canadian debate on the legitimacy and foundation of the use of unwritten constitutional principles in interpreting the Constitution. (11) In the Australian context, there is extensive literature on the principle of legality, examining the contours of the technique, the scope of its application, and its effect on constitutional development in that jurisdiction. (12) In the UK, despite a focus on the substance and reach of common law rights, there is insightful commentary on the principle of legality, examining its role in the relationship between parliamentary supremacy and the rule of law, as well as the extent to which it bridges the gap between common law and documentary rights. (13) This article seeks to join and expand on this discourse by considering the role of common law methods in constitutional adjudication across several common law jurisdictions. This analysis endeavours to contribute to the current discourse in two ways. First, the article considers the role and utility of methods as an analytical category, rather than studying the use of any one particular method. Second, the article aims to examine the place of methodological practices in common law constitutional adjudication across a range of common law jurisdictions.

   The analysis draws lessons from countries that can be classified as core common law countries--that is, jurisdictions in which judges occupy a central role in developing legal norms and which, despite an increase in statutes, do not possess comprehensive legal codes. (14) One of the defining characteristics of such jurisdictions is that case law and the doctrine of precedent are prominent in legal development. (15) The jurisdictions cited range from the traditional political constitution framework (the United Kingdom) to countries that have embraced the supremacy of documentary constitutions...