Friday, January 11, 2019

Endicott on Entick v Carrington

Timothy A.O. Endicott, University of Oxford Faculty of Law, has posted Was Entick v Carrington a Landmark? which appeared in Entick v Carrington: 250 Years of the Rule of Law, ed. Adam Tomkins and Paul Scott  (Hart Publishing 2015), 109-130:
Entick v Carrington (1765) 2 Wils KB 275 was a landmark not only in the development of the law of the constitution, but also in the development of a distinctively English mixture of judicial restraint and judicial creativity. Lord Camden’s decision was a model of the common law method of devising new ways of controlling public powers, while disclaiming any power to legislate and, in fact, claiming to abide by the ‘ancient venerable edifice’ of the constitution. The result was a practical reform that protected civil liberties, on the basis of a very conservative understanding of the constitution, according to which public authorities are limited by law, but have powers that are not specified by law. I defend that understanding against the twenty-first-century idea that public authorities may do nothing except what the law expressly or impliedly authorises.
H/t: Legal Theory Blog

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