Grantham and Jensen, ‘Coherence in the Age of Statutes’

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.

Grantham, Ross B and Jensen, Darryn, Coherence in the Age of Statutes  (2016) 42(2) Monash University Law Review 360-382.

First posted 2017-03-14 07:45:45

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