Coherence in the age of statutes

Grantham, Ross B. and Jensen, Darryn (2016) Coherence in the age of statutes. Monash University Law Review, 360-382.

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Author Grantham, Ross B.
Jensen, Darryn
Title Coherence in the age of statutes
Journal name Monash University Law Review   Check publisher's open access policy
ISSN 1839-3837
0311-3140
Publication date 2016-12-01
Year available 2016
Sub-type Article (original research)
Open Access Status Not yet assessed
Start page 360
End page 382
Total pages 23
Place of publication Clayton, VIC Australia
Publisher Monash University * Faculty of Law
Collection year 2017
Language eng
Abstract The High Court of Australia, in pursuing coherence between common law and statute law, has limited itself to ensuring that the rules of common law and statute law should be free of contradiction. The Court does not appear to have embraced the idea, which lies at the core of some major theories of private law, that a set of rules is coherent only if the set can be explained as the outworking of a single principle. Applying that idea to the relationship between common law and statute law is confronted by some serious challenges. In the past, coherence as non-contradiction (combined with the idea of parliamentary supremacy) has worked well as a means of reconciling common law with statute law, but the proliferation of legislation in recent years and the character of much modern legislation has drawn attention to the limitations of such an approach to the question. A more exacting approach to coherence of common law and statute law, on the other hand, would require the revision of some widely held assumptions about the nature of law, such as the core assumption of legal positivism that the ultimate criterion of the authority of the law is its pronouncement by an authoritative institution.
Q-Index Code C1
Q-Index Status Provisional Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: HERDC Pre-Audit
TC Beirne School of Law Publications
 
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Created: Wed, 01 Mar 2017, 14:31:45 EST by Carmen Buttery on behalf of T.C. Beirne School of Law