Legality, Legitimacy, and Legislation: The Role of Exceptional Circumstances in Common Law Judicial Review

Preventing the overconcentration of power is a central component of Western constitutional thought. However, in the British constitution power is generally concentrated in representative legislatures. Although these legislatures generally possess legitimating characteristics that courts lack, we cannot assume that this balance will hold true for all time. This article argues that the common law judicial review jurisdiction contains a power to invalidate the Acts of representative legislatures in certain extreme, hypothetical situations. The seeds of this line of thought began with dicta from a minority in Jackson v Attorney General and similar claims have appeared in several other landmark cases, such as AXA Insurance v Lord Advocate and Moohan v Lord Advocate. Rather than something novel, the power to invalidate legislation is best understood as a natural outgrowth of the seeds of a theory of legislative legitimacy present in the common law that began in the late 20th century.