By Neil Duxbury
In parts of laws, Neil Duxbury examines the historical past of English legislation during the lens of criminal philosophy with a purpose to draw out the variations among judge-made and enacted legislation and to provide an explanation for what courts do with the legislation that legislatures enact. He provides a chain of conscientiously researched and thoroughly rehearsed arguments in regards to the law-making features of legislatures and courts, the strategies of legislative supremacy and judicial evaluate, the character of legislative motive and the center ideas of statutory interpretation.
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Additional resources for Elements of Legislation
Atiyah and Robert S. Summers, Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Oxford: Clarendon Press, 1987), 96–7 (‘[A]rbitrary lines are more acceptable if they are easily discoverable and known to all, and this is more likely to be achieved if they are embodied in the publicly available textual form of a statute’). 43 See Pioneer Aggregates (UK) Ltd v. Secretary of State for the Environment  AC 132 (HL), 142 (per Lord Scarman).
Grey, ‘Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought’ (1978) 30 Stanford L. Rev. 843, 856. See also Mark D. Walters, ‘Common Law, Reason, and Sovereign Will’ (2003) 23 UTLJ 65 (arguing that Coke’s argument is inspired by St German, who, when observing that statutes contrary to the law of nature are void, would not have been using ‘void’ in any sense ‘different … from that of the other uses of the term in Doctor and Student in which it clearly referred to legal invalidity’ (ibid.
The ‘unusual’ case of 1506 set out at ibid. 142–3 in which ‘the judges relax[ed] the strict prohibitions of the statute in favour of custom rooted in reason and conscience’. 30 Even though reported judgments from this period ‘provide frequent instances of fulsome judicial attacks on ill-drafted and misconceived acts of parliament … none of the most dedicated defenders of judicial creativity was prepared, any more than Blackstone, to claim that the courts might control parliament’s legislative will’.