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This concluding chapter argues that constitutional law can and should move from the common-law constitution to the codified constitution. This shift would have two principal components—one institutional, one legal. Institutionally, the power to develop and update constitutional law over time would be partially transferred from lawyer-judges on courts to non-lawyer-judges on courts and to non-lawyer non-judges in legislatures and elsewhere. Legally, constitutional law would increasingly take the form of positive enactments—both formal amendments and statutes.

Dicey's dogmatic distinction between law and convention, for all its continuing influence on public lawyers, is only another manifestation of the positivist outlook responsible for the rule of parliamentary omnipotence. This book attempts to defend a different Dicey — the constitutional theorist struggling to escape the shackles of the Hobbesian authoritarianism he learned from Lord Atkin. It holds that Dicey's doctrine of law seems a better starting point than parliamentary sovereignty for the analysis in this book. It seeks to understand constitutional doctrine as a reflection of the underlying political ideal of the rule of law. In trying to explain the meaning of the rule of law as a constitutional principle, and explore its implications for British public law, this book mixes public law and legal and political theory.

In this chapter, the author argues for the idea of the unwritten constitution as a legal concept that conditions or explains constitutions generally—an idea essential for the ideal of constitutionalism. He distinguishes between linear and circular theories of law, explaining the circular account by invoking a classical common law understanding of what ‘unwritten’ law is. He argues that not just individual constitutional norms but entire constitutions may be understood as a form of ‘unwritten law’ from this perspective. Examining the work of H. L. A. Hart and Hans Kelsen, he shows that linear theories of law produce a paradox that makes the basic ideal of constitutionalism, the goal of non-arbitrary government, problematic. He concludes by offering an alternative account of the constitution as unwritten—a circular jurisprudential account, based upon two principles, the pervasiveness of law and the ordinariness of law, as foundational to a compelling vision of constitutionalism.

A study of the Bancoult cases provides a framework for reflection on interconnected questions of fundamental rights, judicial review, justiciability, and deference. This chapter explains how the central doctrines of legislative supremacy, the rule of law, and separation of powers fit together as integral parts of a larger theory of liberal democratic constitutionalism. It critiques the ‘political constitutionalism’ defended by Bellamy and Tomkins: their implausible conceptions of law disfigure their accounts of the rule of law. It discusses adjudication under the Human Rights Act and rejects the idea that sections 3 and 4 provide alternative remedies for breaches of Convention rights. It also considers Waldron's opposition to ‘strong’ judicial review and denies the distinction between strong and weak review. The common law constitution reconciles legislative supremacy and judicial oversight: statutory meaning is always an interpretative judgement, sensitive to basic legal values.

Legislative supremacy and the rule of law are interdependent doctrines of the common law constitution, reconciling the demands of democracy and legality. While granting Parliament's status as principal lawmaker, the constitution makes the application of statutes highly sensitive to the requirements of freedom and justice as they apply in the circumstances of particular cases. The interpretative obligation imposed by the Human Rights Act, section 3, matches an equivalent common law duty of respect for fundamental rights: what is ‘possible’ depends on what is necessary to protect the rule of law. Statutory meaning must be constructed by reference to constitutional context, eliminating injury to basic rights. There must be a proper balance between general rule and particular case, excluding disproportionate outcomes. The fundamental right to a fair criminal trial (for example) cannot be abrogated by statute, which must be accorded a meaning consistent with that right.