Two Models of ‘Disapplication’ in UK Public Law
摘要
In several obiter dicta, judges of the UK Supreme Court have gestured to the idea that there might be primary legislation purporting to license a violation of common law rights so egregious that the courts would hold that such legislation has no legal effect. I argue that our ability to make philosophical sense of these developments depends on arguments at the level of general jurisprudence. I set out two models for making philosophical sense of these dicta, based on familiar positivist and non-positivist theories of general jurisprudence. By clarifying the links between theories of general jurisprudence and theories of public law practice, we can avoid begging important questions and open new ways of thinking about public law doctrines.