In Constitutional Justice, the concept of the rule of law is explained and defended as an ideal of constitutionalism, and the general principles of public law are set in the broader perspective of legal and political philosophy. Although primarily an essay in constitutional theory, its practical implications are fully explained by reference to case-law examples. Drawing on the experience of a number of common law countries--especially Britain, the United States, and
Australia--Allan seeks to identify the common elements of a shared constitutional framework that provides the foundations, in each case, of a liberal democratic legal order. These common foundations
include certain constraints on the exercise of state power, challenging the widespread view that the rule of law should be conceived as a purely procedural ideal.The book explains the essential connections between a range of matters critical to the relationship between citizen and state, including freedoms of speech and conscience, civil disobedience, procedural fairness, administrative justice, the right of silence, and equal protection or equality before the law. The
limits of parliamentary sovereignty are shown to derive from its status as a common law doctrine, when the common law is interpreted as a deliberative process of moral argument and justification.
Legislative supremacy is qualified by a counter-balancing judicial sovereignty, ensuring the protection of fundamental common law rights of procedural fairness and equality.
`... perhaps the most sophisticated account of common law constitutionalism...confirms Allan's reputation as one of the leading normative theorists of the constitution working in this country... a rich and absorbing book.'
Thomas Poole Modern Law Review, May 2002
`... the most significant work in English on its topic in the last 50 or so years... he illustrates [the] argument through deft case analysis... scholarship of the highest order.'
David Dyzenhaus, Public Law, Summer 2002
`...among the many virtues of the book stands pout the diligence with which Allan illustrates how the general priciples explained in the book are expounded in judicial practitce.'
Alexander Somek, Philosophy in Review, December 2002
`...Allan does not shirk from addressing the biggest questions in legal and constitutional theory, and he does so with a masterly grasp of the issues and arguments. The work is cogent, attractive and thought-provoking.'
Julian Rivers, Common Law World Review, March 2003
`Constitutional Justice is a valuable contribution to the debate about form and substance in the rule of law. It is also an important work on constitutional law and theory. By emplpoying the rule of law as a mechanism for explaining the relationship between the common law and legislative authority, Allan offers an understanding of the dialectic between reason and sovereign will that lies at the heart of the common law constitutional tradition. ... it shows
that to expose the theoretical and historical foundation of a legal tradition of a legal system as an unwritten rule of reason is not necessarily to threaten democratic values that are supposedly reflected
in sovereign legislative will....'
Mark D. Walters, University of Toronto law Journal
2: First Principles: The Rule of Law and Separation of Powers
3: Legal Obligation and the Concept of Law
4: Dissent and Disobedience
5: Equal Justice and Due Process of Law
6: Justiciability and Jurisdiction: Political Questions and the Scope of Judicial Review
7: The Rule of Law and Parliamentary Sovereignty
8: Fundamental Common Law Rights and Equality
9: Public Reason and Political Conflict
Table of Cases
Index of names