Crummey, Conor; (2022) An Interpretivist Theory of the Principle of Legality. Doctoral thesis (Ph.D), UCL (University College London).

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Abstract

In this thesis, I develop a theory of the ‘principle of legality’, the method of statutory interpretation used by judges of UK courts where fundamental common law rights and principles are at issue. While both judges and public law theorists have engaged with this method of interpretation at length, I identify a number of important questions about it that remain unanswered. In order to develop answers to these questions, I first argue that any theory of statutory interpretation must be premised on a broader theory of general jurisprudence, that is, a theory about the nature of legal rights and obligations. I endorse a non-positivist account of legal obligations, wherein such obligations are viewed as genuine moral obligations. In particular, I argue that Ronald Dworkin’s theory of ‘law as integrity’ makes the best sense of the principle of legality. On this view, the correct interpretation of a statute is determined by principles of political morality. When judges employ the principle of legality, they are engaged in first order moral questions about the obligations that obtain in virtue of the statute’s enactment. This view, I argue, does a better job of accounting for key aspects of the practice than other theories, in particular those that view the principle of legality as a method of working out the intentions of the legislature. I show that a non-positivist theory of the principle of legality leads us to better answers to the outstanding questions identified at the beginning of the thesis.

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