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Home » Archive » The Common Law, The Rule Of Law, And Brexit

Gordon Anthony
The Common Law, The Rule Of Law, And Brexit
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This article considers how Brexit will affect the rule of law doctrine that is applied by courts in the United Kingdom (UK). Focusing, first, on how UK courts have previously absorbed the demands of EU law, it considers whether the courts will use that experience to safeguard a “thick” conception of the rule of law, or whether they will allow the rule of law to be hollowed out by Brexit. While such analysis can of course only be speculative at this stage, the article suggests that there is much within preexisting case law to indicate that EU will continue to exert some influence in domestic law. This is a result not just of the fact that there will continue to be statutory links to EU law in the post- Brexit constitution, but also because of the “economy of the common law” and its pursuit of progression rather than regression. Important, too, are the common law’s ongoing links to international legal norms that will continue to have various points of intersection with the EU legal order.

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