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PRINCIPLED REASONING IN HUMAN RIGHTS
ADJUDICATION
Implied constitutional principles form part of the landscape of the

development of fundamental rights in common law jurisdictions, affect-
ing issues ranging from the remuneration of judges to the appropriation of
property by the state. Principled Reasoning in Human Rights Adjudication
offers thematic analysis of the use of the implied constitutional principles
of the rule of law and separation of powers in human rights cases. The
book examines the functions played by those principles in rights adjudica-
tion in Australia, Canada, the Commonwealth Caribbean and the United
Kingdom. It argues that a complete understanding of implied constitutional
principles requires thoroughgoing analysis of the sources and methods of
implication and of the specific roles played by such principles in the adju-
dicative process. By disaggregating particular functions and placing those
functions within their respective institutional contexts, this book develops
an understanding of the features of cases in which implied constitutional
principles are invoked and the work done by those principles.
Volume 15 in the series Hart Studies in Comparative Public Law

Hart Studies in Comparative Public Law
Recent titles in this series:
Constitutionalising Secession
David Haljan
Parliaments and Human Rights
Redressing the Democratic Deficit
Edited by Murray Hunt, Hayley Hooper and Paul Yowell
The Right to Freedom of Assembly
A Comparative Study
Orsolya Salát
An Inquiry into the Existence of Global Values
Through the Lens of Comparative Constitutional Law
Edited by Dennis Davis, Alan Richter and Cheryl Saunders
The Scope and Intensity of Substantive Review
Traversing Taggart’s Rainbow
Edited by Hanna Wilberg and Mark Elliott
Entick v Carrington
250 Years of the Rule of Law
Edited by Adam Tomkins and Paul Scott
Administrative Law and Judicial Deference
Matthew Lewans
Soft Law and Public Authorities
Remedies and Reform
Greg Weeks
Legitimate Expectations in the Common Law World
Edited by Matthew Groves and Greg Weeks
The Dynamics of Exclusionary Constitutionalism
Mazen Masri
Constitutional Courts, Gay Rights and Sexual Orientation Equality
Angioletta Sperti
Principled Reasoning
in Human Rights
Adjudication
Se-shauna Wheatle
OXFORD AND PORTLAND, OREGON

2017
Hart Publishing
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First published 2017
© Se-shauna Wheatle 2017
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All rights reserved. No part of this publication may be reproduced or transmitted in any form or by
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Acknowledgements
I am grateful to Professor Christopher McCrudden for the skilful supervision
he provided during the course of the thesis that preceded this book. Special
gratitude is also extended to the community at Exeter College, Oxford, and
Durham Law School, where I taught while completing my doctorate and the
book manuscript, respectively. The students and staff at both institutions,
particularly Professors Jonathan Herring and Roger Masterman, provided
ideas, a listening ear, and a congenial, supportive atmosphere. I also thank
Nicholas Barber and Professor David Feldman for providing useful sugges-
tions during the final viva voce and to anonymous reviewers who provided
thoughtful comments on the draft manuscript. I am grateful to the Rhodes
Trust for the financial support necessary for me to embark on my academic
journey and to the staff at Rhodes House for providing logistical, pastoral,
and other forms of support during my postgraduate studies. Thanks also
extend to the staff at the University of the West Indies, particularly to those
influential lecturers who stimulated my interest in the law and encouraged
me to pursue further studies. Above all, I am grateful to my parents, Alethia
and Junior Wheatle, to my siblings, Rochey and Junior, to my partner Ben,
my niece Maya and to my dear friends, for their patience, hugs, and laughter.
vi
Table of Contents
Acknowledgements�� v
Table of Abbreviations�� xi
Table of Cases�� xiii
1. Introduction: The Doctrinal and Institutional Context�� 1

I. Map of the Book�� 5
II. Recurring Themes�� 9
Part I: The Conceptual Context and the Meanings
of the Implied Constitutional Principles
2. Implied Principles and Constitutionalism�� 13
I. Introduction�� 13
II. On Implied Principles�� 13
III. Separation of Powers and the Rule of Law in
Constitutionalism�� 26
A. Legacy of Common Law Constitutionalism�� 29
IV. Conclusion�� 36
3. Judicial Conceptions of the Rule of Law�� 37
II. Conceptions of the Rule of Law�� 38
III. Development of Heads of Judicial Review�� 42
A. Principle of Legality�� 46
IV. Explicit References to the Rule of Law in Applying
a Constitution or Bill of Rights�� 49
V. Conflicts Within the Rule of Law: Equality as an
Application of the Rule of Law�� 57
VI. Conclusion�� 60
4. Applications of the Separation of Powers�� 62
II. Varying Separations of Powers�� 63
III. Practical Application of the Separation of Powers
Principle in Courts in the Westminster-style System�� 69
IV. Effect of the Separation of Powers
on Human Rights�� 75
A. Deference and Judicial Restraint�� 81
V. The Separation of Powers in UK Courts post-HRA�� 85
viii Table of Contents
Part II: Functions Played by the Implied Constitutional Principles

of the Rule of Law and Separation of Powers
5. Implied Principles as Interpretative Aids�� 99
II. Distancing Devices in Hard Cases�� 100
III. Common Ground�� 106
IV. Institutional Respect�� 111
A. Ouster Clauses and Access to Court�� 111
V. Conclusion�� 121
6. Implied Principles as Grounds for Invalidating Legislation�� 123
II. The Practice of Invoking Implied Principles
as Grounds for Invalidating Legislation�� 124
A. A Gap in the Bill of Rights or Constitutional
Text with Respect to the Individual Interest
that is Engaged in the Case before the Court�� 124
B. A Gap in the Power Conferred on the Court by
the Bill of Rights or other Constitutional Text�� 126
C. Non-Bill of Rights Legislation Challenges or
Threatens to Reduce the Power of the Court�� 135
III. Trends and Fault Lines�� 140
A. Invalidation to Protect Jurisdictional Boundaries�� 140
B. Divisions Protected�� 142
IV. Conclusion�� 146
7. Implied Principles as Gateways to Comparative Law�� 147
II. Comparativism in Constitutional Law and Human Rights�� 148
III. Inheritance from Former Colonial Power�� 150
A. Transition and Continuity�� 151
B. Continuing Institutional Legitimacy�� 154
C. Comparison at Different Stages of Constitutional
Development�� 159
IV. Principled Borrowing and a Colonial Legacy�� 161
V. Developing Common Approaches to Common Problems�� 163
VI. Cyclical Borrowing�� 167
VII. Conclusion�� 170
8. The Legitimacy of Reliance on Implied Constitutional
Principles in Fundamental Rights Adjudication�� 171
II. Process of Implication of the Implied Constitutional
Principle�� 172
III. The Type of Use Involved�� 177
Table of Contents ix
A.
Implied Principles as Interpretative Aids�� 178
B.
Implied Principles as Gateways to Comparative
Judicial Analysis�� 182
C. Implied Principles as Grounds for Invalidating
Legislation�� 184
D. Implied Principles as Substitutes for Bills of Rights?�� 189
E. Exceptional Cases�� 192
IV. Determinacy�� 198
V. The Road to Defeat of Constitutional Amendments?�� 200
9. Conclusion�� 206
I. Decisional Flexibility�� 206
II. Distancing Devices and Institutional Defence�� 207
III. Invitations�� 209
IV. Continuity and Transition�� 209
V. Autochthony�� 210
VI. Concluding Thoughts�� 210
Bibliography�� 213
Index�� 223
x
Table of Abbreviations
AG Attorney General
CA Court of Appeal
CCJ Caribbean Court of Justice
CRA Constitutional Reform Act
Cth Commonwealth (of Australia)
DPP Director of Public Prosecutions
ECHR European Convention for the Protection of Human Rights
and Fundamental Freedoms (European Convention on
Human Rights)
ECtHR European Court of Human Rights
HC High Court
HL House of Lords
HRA Human Rights Act
SC Supreme Court
SSHD Secretary of State for the Home Department
UKSC United Kingdom Supreme Court
xii
Table of Cases
AUSTRALIA
Al-Kateb v Goodwin (2004) 219 CLR 562�� 47–49, 82–83

Attorney General for Australia v The Queen [1957] AC 288�� 168–69
Australian Communist Party v Commonwealth of Australia
(1951) 83 CLR 1�� 49, 72
Church of Scientology v Woodward (1980—1982) 154 CLR 25�� 165
Giris Pty Ltd v Commissioner of Taxation (Cth) (1969) 119 CLR 365�� 71
Kable v DPP (NSW) (1996) 189 CLR 51�� 105, 134
Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337�� 51, 60
Leeth v Commonwealth of Australia (1992) 174 CLR 455�� 78–80, 190
New South Wales v Commonwealth of Australia (1915)
20 CLR 54�� 19–20, 77, 105, 134, 164
R v Kirby, ex p Boilermakers’ Society of Australia (1956)
94 CLR 254�� 4, 106, 134, 157–58
Plaintiff S157/2002 v The Commonwealth of Australia (2003)
211 CLR 476�� 18, 47, 50–51, 72, 119
Polyukhovich v Commonwealth of Australia (1991)
172 CLR 501�� 76–77, 105, 134
Public Service Association (SA) v Federated Clerks’ Union (1991)
173 CLR 132�� 51
State of South Australia v Totani (2010) 242 CLR 1�� 78, 134
Victorian Stevedoring & General Contracting Co Pty
Ltd v Dignan (1931) 46 CLR 73�� 71, 145, 164
Wainohu v New South Wales [2011] HCA 24�� 78
White v DPP (2007) 81 ALJR 1259�� 187
CANADA
Babcock v Attorney General Canada [2002] 3 SCR 3�� 191

BCGEU v British Columbia (AG) [1988] 2 SCR 214�� 54
British Columbia v Imperial Tobacco Canada Ltd [2005]
2 SCR 473�� 2, 54–56, 174, 185, 191–92
Charkaoui v Canada (Citizenship and Immigration)
[2007] 1 SCR 350�� 55–56
Christie v British Columbia (Attorney General) [2007] 1 SCR 873�� 55–57
Reference re Language Rights Under s. 23 of Manitoba Act,
1870 and s. 133 of Constitution Act, 1867 [1985] 1 SCR 721�� 53, 148, 195
Reference Re Remuneration of Judges of the Provincial Court
of Prince Edward Island [1997] 3 SCR 3�� 1, 14, 53, 105, 156, 187
Reference re Resolution to Amend the Constitution
[1981] 1 SCR 753�� 54, 106
xiv Table of Cases
Reference re Secession of Quebec [1998]

2 SCR 217�� 2, 16, 53, 55, 65, 103, 152, 177
Roncarelli v Duplessis [1959] SCR 121�� 54
R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606�� 53
Trial Lawyers Assn. of British Columbia v. British
Columbia (Attorney General) [2014] 3 SCR 31�� 56
Reference re Senate Reform [2014] 1 SCR 704�� 49, 103, 105
COMMONWEALTH CARIBBEAN
Astaphan & Co (1970) Ltd v Comptroller of Customs

of Dominica (1996) 54 WIR 153�� 143–44, 168–69
AG v Bowen BZ 2010 CA 1 (March 19, 2010)�� 202
AG v Joseph and Boyce (2006) 69 WIR 104�� 14, 26, 44, 53, 129–32
Bowen v AG BZ 2009 SC 2 (13 February 2009)�� 201–02
Boyce v R [2004] UPKC 32, [2005] 1 AC 400 (JCPC, Barbados)�� 110, 199
DPP of Jamaica v Mollison (2003) [2003] UKPC 6,
[2003] 2 AC 411�� 1, 71, 126–28, 168–69, 190
Grape Bay Ltd v Bermuda (AG) [2000] 1 WLR 574�� 83
Hinds v R [1977] AC 195�� 18–20, 26, 31, 72, 76, 105, 124–26,
128, 143–44, 155–61, 163, 167–69, 177, 204
Lasalle v AG (1971) 18 WIR 379�� 60
Leacock v AG of Barbados (2005) 68 WIR 181�� 44
Lewis v AG of Jamaica [2001] 2 AC 50�� 14, 16–17, 52, 109
Matadeen v Pointu [1998] 3 WLR 18�� 110, 173, 175
Minister of Home Affairs v Fisher [1980] AC 319�� 175
Mitchell v DPP of Grenada [1986] LRC (Const) 35�� 193–95
Natalie Campbell-Rodriquez [2007] UKPC 65, [2008] 4 LRC 526�� 16
Paponette v Attorney General of Trinidad and Tobago
[2010] UKPC 32, [2012] 1 AC 1�� 44–45
Reckley (No 2) [1996] AC 527�� 109
Reyes v The Queen [2002] 2 AC 235�� 126
Suratt v Attorney General of Trinidad and Tobago [2008]
UKPC 38, (2008) 73 WIR 437�� 156
Thomas v Baptiste [2000] 2 AC 1�� 18, 52, 130, 148, 165–66
Toussaint v Attorney General of St Vincent [2007] UKPC 48,
(2007) 70 WIR 167�� 1, 120
Yassin v Attorney of Guyana GY 1996 CA 3 (30 August 1996)�� 58
Zuniga and Others v Attorney General [2014] 5 LRC 1�� 49, 160
UNITED KINGDOM
A (Children), Re [2000] EWCA Civ 254, [2000] 4 All ER 961�� 92

A v Secretary of State for the Home Department [2004] QB 335,
[2005] 3 ALL ER 169�� 58
AXA General Insurance Ltd v The Scottish Ministers
[2011] UKSC 46, [2011] 3 WLR 871�� 94, 136–37
Begum v Tower Hamlets London Borough Council
[2003] UKHL 5, [2003] 2 AC 430�� 80
Table of Cases xv
Cart v Upper Tribunal [2011] UKSC 28, [2012]

1 AC 663 (UKSC)�� 112, 117–18, 121, 173
Davidson v Scottish Ministers (No 2) [2004] UKHL
34, 2005 1 SC 7 (HL)�� 86–88
Dr Bonham’s Case (1610) 8 Co. Rep. 107a�� 176–77, 192
Duport Steels v Sirs [1980] 1 All ER 529 (HL)�� 82, 116
Entick v Carrington (1765) 19 Str 1029, (1558–1774) All ER 41�� 178
Fitzpatrick v Sterling Housing Association [1998] 2 WLR 225�� 59
Ghaidan v Godin-Mendoza [2004] UKHL 30,
[2004] 2 AC 557�� 26, 59, 91, 108, 173
M, In Re [1994] 1 AC 377�� 70
M v Home Office [1992] QB 270�� 70
Manby v Scott (1672) 1 Lev. 4�� 195
Matthews v Ministry of Defence [2003] UKHL 4,
[2003] 1 All ER 689�� 81
Nicklinson v Ministry of Justice [2014] UKSC 38,
[2014] 3 WLR 200�� 108, 111
Osborn v Parole Board [2013] UKSC 61, [2014] 1 All ER 369�� 179
R v Bow Street Magistrates, ex p Pinochet (No. 2)
[1999] 1 All ER 577�� 145
R (Evans) v Attorney General (Appellant) [2015] UKSC 21�� 47, 116
R (HS2 Action Alliance Ltd) v Secretary of State for Transport
[2014] UKSC 3, [2014] 1 WLR 324�� 1, 180
R v Immigration Appeal Tribunal, ex p Begum [1986]
Imm AR 385 (QBD)�� 59
R v Lichniak [2002] UKHL 47, [2003] 1 AC 903�� 7, 62, 84
R v Lord Chancellor, ex p Witham [1998] QB 575�� 42
R v North and East Devon Health Authority, ex p Coughlan
[2001] QB 213�� 44
R v SSHD, ex p Fire Brigades Union [1995] 2 AC 513�� 74
R v SSHD, ex p Leech (No. 2) [1994] QB 198�� 42, 178
R v SSHD, ex p Limbuela [2006] UKHL 66, [2006] 1 AC 396�� 43
R v SSHD, ex p Pierson [1997] UKHL 37,
[1998] AC 539�� 43, 46–47, 101, 136, 179, 195
R v SSHD, ex p Simms [2000] 2 AC 115�� 46, 136, 179, 209
R v Secretary of State for Transport, ex p Equal Opportunities
Commission [1995] 1 AC 1�� 32
R v Secretary of State for Transport, ex p Factortame (No 2)
[1991] 1 AC 603�� 32
R (Anderson) v SSHD [2002] UKHL 46,
[2003] 1 AC 837�� 71, 77, 89–91, 95, 126, 128, 168–69
R (Anufrijeva) v SSHD [2003] UKHL 36, [2004] 1 AC 604�� 45
R (Bancoult) v Secretary of State for Foreign and Commonwealth
Affairs (No 2) [2008] UKHL 61, [2009] 1 AC 453�� 73–74
R (Barclay) v Lord Chancellor [2008] EWCA Civ 1319,
[2010] 1 AC 464�� 88
R (Countryside Alliance and others) v Attorney General
[2007] UKHL 52, [2008] 1 AC 719�� 84
xvi Table of Cases
R (Gurung) v Ministry of Defence [2002] EWHC 2463

(Admin Ct)�� 60
R (Jackson) v AG [2005] UKHL 56, [2006] 1 AC 262�� 94, 131–33, 135–39,
143, 187, 192, 198
R (Nadarajah) v SSHD [2005] EWCA Civ 1363,
The Times December 14 2005�� 42, 44
R (Purdy) v Director of Public Prosecutions [2009]
UKHL 45, [2009] 3 WLR 403�� 45, 108
Rabone v Pennine Care NHS Foundation Trust
[2012] UKSC 2, [2012] 2 AC 72 (UKSC)�� 179
Rees v Crane [1994] 2 AC 173�� 187
Ridge v Baldwin [1964] AC 40�� 145
SSHD v Pankina [2011] QB 376�� 72–73
Thoburn v Sunderland City Council [2002] EWHC 195
(Admin), [2003] QB 151�� 181–82
Wilson v First County Trust [2003] 3 WLR 568�� 43
OTHER
Attorney General of the Republic v Mustafa Ibrahim

[1964] Cyprus Law Reports 195�� 153
Golder v United Kingdom (1975) 1 EHRR 524�� 80
Kesavananda Bharati v State of Kerala (1973) 4 SCC 225�� 201
O‘Donoghue v United States 53 S.Ct. 740, 289 U.S. 516 (1933)�� 187
Special Ref. 1 of 1955, P.L.R. 1956 W.P. 598�� 153
State (Ryan and Others) v Lennon [1935] IR 170�� 203
Williams v United States 53 S.Ct. 751, 289 U.S. 553 (1933)�� 187
1
Introduction: The Doctrinal and
Institutional Context
I
MPLIED CONSTITUTIONAL PRINCIPLES form part of the landscape
of the development of fundamental rights in common law jurisdictions.
The significance of constitutional principles in the common law world
has been underscored by the United Kingdom Supreme Court’s recent
endorsement of fundamental principles ‘recognised at common law’ which,
along with constitutional instruments, are norms of special c onstitutional
importance.1 This book examines the phenomenon of the use of implied
constitutional principles in judicial decision-making in fundamental rights
cases. The significance of this judicial practice is evident in the broad
influence of reasoning by implied principles in cases considering issues rang-
ing from the remuneration of judges,2 to the appropriation of property by
the state.3 Its importance to constitutional study is also attributable to the
fact that such principles can serve as a ground for invalidating legislation, as
has been held by the Judicial Committee of the Privy Council.4
The book centres on the constitutional principles of the separation of
powers and the rule of law, as these principles, which feature prominently in
judicial decisions, are foundational to our very understanding of the consti-
tutional democracies in which our courts function. Thus, Donald Lutz, writ-
ing of principles of constitutional design, and Trevor Allan, expounding on
constitutional justice, maintain that constitutionalism implies the presence
of the principles of the separation of powers and the rule of law.5 Frequently,
these principles are implied rather than expressly stated in constitutional
1 R (on the application of Buckinghamshire CC) v Secretary of State for Transport
[2014] UKSC 3, [2014] 1 WLR 324 (SC) (HS2 case) [207]; Paul Craig, ‘Constitutionalising
Constitutional Law: HS2’ [2014] Public Law 373, 382–87.
2 Reference Re Remuneration of Judges of the Provincial Court of Prince Edward Island
[1997] 3 SCR 3 (SC, Canada) (Provincial Judges Reference or Remuneration Reference).

3 Toussaint v Attorney General of St Vincent [2007] UKPC 48, (2007) 70 WIR 167 (Judicial
Committee of the Privy Council (JCPC), St Vincent and the Grenadines).

4 DPP of Jamaica v Mollison (2003) 64 WIR 140 (JCPC, Jamaica).
5 TRS Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford, Oxford
University Press, 2001) 1–5; Donald Lutz, Principles of Constitutional Design (Cambridge
University Press, 2006) x, 3, 5.
2 Introduction
documents. There is abundant theoretical debate over the meaning of each

principle, as well as scholarly literature addressing the normative question
of the legitimacy of judicial use of implied constitutional principles.6 For
instance, Mark Walters has written in defence of the invocation of implied
constitutional principles, partly by identifying a connection between this
practice and the use of lex non scripta (law which does not derive its norma-
tive status from encapsulation in written form).7 The legitimacy of recourse
to implied principles in cases involving challenges to the constitutionality of
governmental and legislative acts has been most extensively questioned in
Canadian commentary owing to a series of influential Canadian Supreme
Court cases which conferred renewed prominence on constitutional princi-
ples in Canadian constitutionalism.8
This book aims to enhance the existing scholarly literature in two critical
respects. Current scholarship is primarily augmented by providing a more
pragmatic analysis of the meaning and use of implied constitutional prin-
ciples through the lens of case law. The term ‘pragmatic’ is used to signal
attention to the use and application of these principles in opposition to a
purely theoretical approach.9 Secondly, the book engages in thematic analy-
sis of the functions played by such principles in judicial decision-making.
The objective is not to propose a normative argument regarding the use of
implied constitutional principles or particular conceptions of such princi-
ples. Rather, by critical thematic examination of case law, I discuss the ways
in which these principles are used as a means of legitimating judicial deci-
sions in rights cases, and the conceptual and constitutional difficulties that
arise from this practice. This analysis presents a necessary companion to the
existing normative discourse of invoking implied constitutional principles
in rights cases.
Several terminological issues affect the issues in this book, one such issue
being the understanding of the term ‘fundamental rights adjudication’. In
6 See, eg, Jean Leclair, ‘Canada’s Unfathomable Unwritten Constitutional Principles’ (2002)
27 Queen’s Law Journal 389; FC DeCoste, ‘Smoked: Tradition and the Rule of Law in British
Columbia v Imperial Tobacco Canada Ltd’ (2006) Windsor Yearbook of Access to Justice 328;
Jeffrey Goldsworthy, ‘Unwritten Constitutional Principles’ in Grant Huscroft (ed), Expound-
ing the Constitution: Essays in Constitutional Theory (Cambridge University Press, 2008);
Mark Walters, ‘Written Constitutions and Unwritten Constitutionalism’ in Grant Huscroft
(ed), Expounding the Constitution: Essays in Constitutional Theory (Cambridge University
Press, 2008).
7 Walters, ‘Unwritten Constitutionalism’ (ibid).
8 See eg Remuneration Reference (n 2 above); Reference re Secession of Quebec [1998]
2 SCR 217 (SC, Canada) (Secession Reference).

9 The term ‘pragmatic’ is therefore not used as part of the debate between pragmatic
constitutional development versus an ideological approach to constitutional development.

On this debate, see, eg, Ivor Jennings, The Law and the Constitution, 5th edn (University of
London Press, 1963) especially 8–9, 157; Christopher McCrudden, ‘Northern Ireland, and
the British Constitution’ in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution,
6th edn (Oxford University Press, 2007) 228–31.
Introduction 3
this book, that term is used to refer to cases in which it is alleged that the
act or omission of a governmental organ violates an individual’s liberty.
Liberty is understood as inclusive of both positive and negative conceptions
of liberty and is not limited to liberties expressed in a constitutional or rights
instrument.10 Further, while there is academic debate on the correct adjec-
tival terminology to attach to rights, such as ‘human rights’, ‘constitutional
rights’, or ‘fundamental rights’, the analysis undertaken here does not hinge
on a choice between these terms and accordingly, this book does not join
that debate.11
The vast majority of the adjudication cited throughout the book is com-
prised of appellate judgments from the common law jurisdictions selected.
This includes analysis of constitutional case law in which fundamental
rights are both directly and indirectly in issue, as decisions that indirectly
raise rights issues can illuminate the content or applications of the implied
constitutional principles, and can contain relevant obiter dicta on the rights
implications of the court’s reasoning or decision. Further, though this is a
study on the implementation of these principles in constitutional cases, ref-
erence will also be made to administrative law cases in addition to constitu-
tional and human rights judgments, in recognition that administrative law
at times forms the ground of implementation of constitutional principles
such as the rule of law.12
The research presented in this book is conducted through the use of com-
parative methodology, allowing a more complete and more nuanced picture
of the workings of implied constitutional principles.13 The jurisdictions
examined are Canada, the Commonwealth Caribbean, Australia, and the
United Kingdom, which all possess fundamental similarities such as a com-
mon law tradition and a ‘Westminster-style’ parliamentary democracy.14
10 Christopher McCrudden and Gerald Chambers, ‘Introduction: Human Rights in British
Law’ in Christopher McCrudden and Gerald Chambers (eds), Individual Rights and the Law
in Britain (Clarendon Press, 1994) 9.
11 On some of the arguments in this debate, see, eg, Joseph Raz, ‘Human Rights Without
Foundations’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International
Law (Oxford University Press, 2010) 328–29, 336–37; Jeremy Waldron, ‘Human Rights:
A Critique of the Raz/Rawls Approach’ in Adam Etinson, Human Rights: Moral or Political?
(Oxford University Press, forthcoming). On ‘fundamental rights’, see Tom Hickman, Public
Law after the Human Rights Act (Hart Publishing, 2010) 17–21.
12 Jeffrey Jowell, ‘The Rule of Law Today’ in Jeffrey Jowell and Dawn Oliver, The Changing
Constitution (Oxford University Press, 1994) 73; Mark Elliott, The Constitutional Founda-
tions of Judicial Review (Hart Publishing, 2001) 251.
13 Ran Hirschl, ‘On the Blurred Methodological Matrix’ in Sujit Choudry, The Migration of
Constitutional Ideas (Cambridge University Press, 2006) 45–46.

14 Vivek Krishnamurthy, ‘Colonial Cousins: Explaining India and Canada’s Unwritten
Constitutional Principles’ (2009) 34 Yale Journal of International Law 207, 211; David Erdos,
Delegating Rights Protection: The Rise of Bills of Rights in the Westminster World (Oxford
University Press, 2010) 5–6; Vicki C Jackson, ‘Comparative Constitutional Law: Methodologies’
in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative
Constitutional Law (Oxford University Press, 2012) 1168–69.
4 Introduction
The label ‘Westminster-style’ or ‘Westminster model’ constitutional system

describes a constitutional design that incorporates an executive selected
largely from, and responsible to, a legislature (that is, a system of responsible
government).15 I have therefore adopted the ‘most similar case’ research
design to focus on factors that are common to analogous jurisdictions, to
identify the relevant distinctions that arise and to control for variables that
are not central to the purposes of this research.16
This methodological design permits the testing of theories regarding the
functions played by the implied principles across four common law juris-
dictions. In particular, the book adds to the current literature by including
detailed, contextual analysis of case law from the Commonwealth Caribbean,
a jurisdiction that is largely ignored in the existing literature. Inclusion of
Caribbean case law in the discourse on implied constitutional principles
brings the post-colonial element of the law in newly independent states
into sharp relief. Thus, the methodological choices made also present the
opportunity to examine the case law within a post-colonial context, taking
account of historical factors and the tensions between nationalistic inclina-
tions and foreign influences in Constitution-building. These aspects of the
historical and socio-political context are raised throughout the book, show-
ing the role of implied principles against that contextual background.
The methodological approach adopted in carrying out this comparative
study is simultaneously functional and contextual. It is functional in its
attempt to discover why particular constitutional principles are utilised,
the functions for which they are employed, and how these functions oper-
ate in the institutional contexts identified in this book.17 The case material
is also examined in its historical context, seeking to gain an understand-
ing of the impact of social and political history. Specifically, subsequent
chapters take account of the impact of history on the aspirations of the
institutional apparatus of the state, and how these aspirations are reflected
in the citation of constitutional principles.18 There is also some classifica-
tory work, particularly with respect to the rule of law, in an attempt to
monitor trends in the understanding of the rule of law in common law
jurisdictions.19 This classificatory approach is an important precursor to
developing our understanding of judges’ engagements with differing rule
of law conceptions.
15 R v Kirby, ex p Boilermakers’ Society of Australia (1956) 94 CLR 254 (HC, Australia)
275; Peter Gerangelos, The Separation of Powers and Legislative Interference in Judicial
Process: Constitutional Principles and Limitations (Hart Publishing, 2009) 35.
16 Hirschl (n 13 above) 48.
17 On functional comparative work, see Jackson (n 14 above) 62–63.
18 See Jackson (n 14 above) 67.
19 See Jackson (n 14 above) 57–58.
Map of the Book 5
I. MAP OF THE BOOK
The book proceeds by progressing from a critical analysis of the concept

of implied principles, the rule of law and separation of powers to a pro-
posal of the functions that these principles seek to perform in cases raising
rights questions. Part I (comprising chapters two–four) first engages with
conceptual debates surrounding the contestable concept of ‘principles’; it
also considers the key question of what constitutes ‘implying’ a norm pri-
marily into constitutional or other legislation protecting rights, and explains
the selection of the rule of law and separation of powers as the principles
forming the primary areas of study. Part I also outlines the content of each
principle to be subjected to thematic analysis. This is an essential prior issue
that allows us to clarify what meanings are attributed to the rule of law and
separation of powers as used by judges in the jurisdictions examined. Part II
of the book (comprising chapters five–eight) identifies the functions played
by implied principles in rights adjudication and the factors that contribute
to each function. The Conclusion summarises the main themes explored in
the book and the main findings that emerged from the research. The remain-
der of this Introduction briefly outlines the main issues considered in each
chapter of the book.
Chapter two constructs a conceptual understanding of ‘implied constitu-
tional principles’. Part II of the chapter analyses the term ‘implied principles’
by first explaining the meaning ascribed to the term ‘implied’ in the book
and classifying the methods of implication utilised by judges in the jurisdic-
tions examined. This is followed by analysis of the meaning of the term
‘principles’, drawing on the theories of Ronald Dworkin and Robert Alexy
to distinguish principles from other norms.20 I draw on Alexy’s conceptual
apparatus despite the fact that he writes within the context of the civil law
system in Germany. The differences that arise between the civil and common
law in this area are differences in application and institutional apparatus,
which do not undermine the relevance of Alexy’s conceptual ideas. Part III
of the second chapter seeks to demonstrate the significance of the separation
of powers and rule of law in the discourse on the use of implied principles
in fundamental rights adjudication. It is argued that the centrality of the
rule of law and the separation of powers to constitutionalism is a critical
aspect of the appeal of these principles in resolving rights issues. While there
are other implied constitutional principles that may merit further study,
there are features that distinguish the rule of law and separation of pow-
ers from other principles. First, the rule of law and separation of powers
20 Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1978) ch 2; Robert
Alexy, A Theory of Constitutional Rights (Julian Rivers tr, Oxford University Press, 2002) ch 3.
6 Introduction
are interrelated foundational principles of constitutional democracies21 and

are inextricably bound to the substantive and organisational imperatives
of constitutionalism.22 Secondly, these principles are part of the unwritten
English Constitution, which were subsequently incorporated in the constitu-
tional arrangements of the other Commonwealth jurisdictions. In this chap-
ter, there is discussion of some elements of the historical and institutional
contexts of the case law that will be considered in detail subsequently. For
instance, there is brief discussion of the role of parliamentary supremacy in
constitutional and rights development in the respective jurisdictions.
In chapter three, on Judicial Conceptions of the Rule of Law, I seek to
understand and categorise what is meant when judges refer to the ‘rule of
law’ and, generally, what judicial decisions reveal about the meaning of the
concept. There is much theorising about the appropriate conception of the
rule of law, as expressed in the writings of Joseph Raz and Ronald Dworkin
as well as in more recent analyses.23 In a more pragmatic study, Jeffrey
Jowell has written on the conceptions of the rule of law reflected in UK case
law.24 However, there is a dearth of academic literature conducting compar-
ative analysis of where the case law in the respective jurisdictions rests along
the spectrum of conceptions of the rule of law. This chapter adopts Jowell’s
pragmatic approach but uses comparative methodology to test the theories.
First, the theoretical discourse is briefly outlined; then there is a focus on
thematic analysis of the case law. I do not contend that there is one concep-
tion of the rule of law that is reflected in the jurisdictions examined, but
rather, analyse what judicial decisions reveal about the specific applications
of the rule of law by judges.
Chapter four applies the same pragmatic approach to the separation of
powers principle. Part II of the chapter outlines the relevant theoretical
framework of the separation of powers25 while Part III discusses the content
of the ‘Westminster model’ of separation of powers as revealed through case
21 Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (n 5 above); Lutz
(n 5 above).
22 Martin Loughlin and Neil Walker, ‘Introduction’ in Martin Loughlin and Neil Walker,
The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford

University Press, 2008) 1–2; Aoife O’Donoghue, Constitutionalism in Global Constitutionali-
sation (Cambridge University Press, 2014) 19–20.
23 See, eg, NW Barber, ‘Must Legalistic Conceptions of the Rule of Law Have a Social
Dimension?’ (2004) 17 Ratio Juris 474.

24 Jeffrey Jowell, ‘The Rule of Law and Its Underlying Values’ in Jeffrey L Jowell and Dawn
Oliver (eds), The Changing Constitution, 7th edn (Oxford University Press, 2011). See also
Alison L Young, ‘The Rule of Law in the United Kingdom: Formal or Substantive?’ (2012)
6 Vienna Journal on International Constitutional Law 259.
25 The most recent contributions to the theoretical discussions include Eoin Carolan, The
New Separation of Powers: A Theory for the Modern State (Oxford University Press, 2009)
and Christoph Möllers, The Three Branches: A Comparative Model of Separation of Powers
(Oxford University Press, 2013).
Map of the Book 7
law. It is argued that in the context of ‘Westminster style’ systems, the term
‘separation of powers’ is often used as an equivalent of the concept of ‘judi-
cial independence’. Part IV of the chapter situates the separation of powers
principle within the context of rights adjudication, discussing the use of
the principle in the resolution of rights issues. Finally, Part V addresses the
impact of the Constitutional Reform Act 2005 (UK) and the Human Rights
Act 1998 (UK) on the application of the separation of powers in the UK,
as evidenced through judicial decisions.26 This discussion reveals a complex
picture regarding the court’s role as a check on other organs of state and
the tension between judicial supervision and judicial restraint in fundamen-
tal rights adjudication.27 In exploring the literature and case law on applica-
tions of the rule of law and separation of powers principles, it will be argued
that while there is no unity of definition of the two principles, in that they
are by no means identical, there is some overlap in the ways in which they
are applied by courts. Notably, they are both often applied as expressions
of judicial independence.
With that, the book moves to Part II, in which the functions played by
implied constitutional principles are considered. In chapter five, I examine
the use of implied principles as aids in the interpretation of statutory text.
This chapter examines the reasons for the appeal to these principles by the
judiciary and the interpretative functions played by the usage of such prin-
ciples. Part II of the chapter proposes that implied constitutional principles
are employed as ‘distancing devices’28 in hard cases, which includes cases in
which fundamental rights are implicated. Part III explains how the nature
of principles permits their use as common grounds in normative conflict,
providing a broad base of agreement on which to proceed to the resolu-
tion of complex rights issues. In Part IV of the chapter, there is analysis of
implied principles as tools for maintaining institutional respect, particularly
in disputes regarding the limits of the courts’ intervention in fundamental
rights issues. The chapter uses the debate over privative clauses to reveal the
operation of constitutional principles as bases of argumentation in dialogue
over the boundaries of judicial review of administrative action and adjudi-
cation of allegations of rights violations.29
26 See Vernon Bognador, The New British Constitution (Hart Publishing, 2009) 287–89;
Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial

Competence and Independence in the United Kingdom (Cambridge University Press, 2011).
27 See, eg, R v Lichniak [2002] UKHL 47, [2003] 1 AC 903 [14] (HL); Aileen Kavanagh,
‘Defending Deference in Public Law and Constitutional Theory’ [2010] Law Quarterly Review
222.
28 Joseph Raz, ‘On the Authority and Interpretation of Constitutions’ in Larry Alexander
(ed) Constitutionalism: Philosophical Foundations (Cambridge University Press, 1998) 190.

29 The term ‘privative clause’ is used in reference to a clause that purports to oust judicial
review. The terms ‘privative clause’ and ‘ouster clause’ are used interchangeably.
8 Introduction
Chapter six then examines the phenomenon whereby judges hold (or state
in obiter dicta) that implied constitutional principles can serve as independ-
ent grounds for invalidating legislation. Part II of the chapter proposes that
there are three circumstances in which judges adopt this course of action.
The first occurs where there is a gap in the Bill of Rights with respect to the
fundamental right that is engaged in the case before the court. The second
occurs where there is a gap in the power granted to the court to invalidate
legislation by the text of the Constitution or Bill of Rights and the third
arises where legislation challenges the court’s power to review governmen-
tal action that affects individual rights. In examining such cases, it will be
argued in Part III of this chapter that two trends are evident. First, where
judges have determined that legislation may be invalidated on the ground of
an implied principle, they have placed reliance on an application of the prin-
ciple that protects jurisdictional boundaries. Thus, in these cases, either the
separation of powers was the implied principle on which the decision was
based or, if the rule of law was used, it was an application of the conception
of the rule of law that mandates separation of organs of state. Within this
larger trend, there is a second trend whereby courts are most protective of
the borders of the judicial sphere, thereby ascribing greater normative force
to principles in defence of judicial power.
Connections between reasoning by implied principles and judicial engage-
ment with comparative legal analysis are explored in chapter seven, which
begins by proposing reasons why judges cite foreign judgments and arguing
that the appeal of comparative law intersects with the appeal of implied
principles in rights adjudication.30 This analysis highlights the centrality
of the legitimation of institutions, institutional processes, and the state.
A dominant theme in this discussion is the reputational currency of implied
principles used in conjunction with foreign legal analysis. Part III of this
chapter discusses ways in which implied principles function as gateways to
foreign judgments, arguing that the practice appears directed towards the
reinforcement of the legitimacy of the court as an institution.31 Against this
background of legitimacy reinforcement, Part IV contends with the colo-
nial legacy reflected in and channelled through reliance on unwritten prin-
ciples in former British colonies. Parts V and VI of the chapter then discuss
the extent to which courts are developing common approaches to common
problems, and the scope and impact of the exchange of ideas and methodol-
ogy across the jurisdictions considered in this book.
30 See, eg, Gary Jacobsohn, ‘Constitutional Values and Principles’ in Michel Rosenfeld
and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford
University Press, 2012).
31 This discussion is influenced by ideas from Anne-Marie Slaughter, ‘Judicial Globalization’
(1999–2000) 40 Virginia Journal of International Law 1103 and Christopher McCrudden,

Human Rights and Judicial Use of Comparative Law, in Esin Örücü (ed), Judicial Comparativism
in Human Rights (Martinus Nijhoff Publishers, 2004).
Recurring Themes 9
The final substantive chapter, chapter eight, adds to the current literature
by drawing on the analysis in previous sections of the book to demonstrate
the preliminary work to be undertaken as a prolegomenon to a normative
analysis. It presents four main factors that influence the normative issue of
the legitimacy of the use of implied constitutional principles in adjudication,
the first being the method by which the principle is implied. Analysis of the
first factor incorporates discourse on the nature and purpose of interpreta-
tion, adopting Raz’s argument that interpretation is both forward and back-
ward looking.32 The second factor discussed is the specific use for which
an implied constitutional principle is employed, that is, whether it is used
as an interpretive aid, a gateway to foreign law, or a ground for invalidat-
ing legislation. This discussion is connected to the issue of the institutional
legitimacy of the courts and to the question whether the use of implied prin-
ciples leads to the displacement of bills of rights. The level of determinacy
of the constitutional principle in question—which addresses the charge that
the content of principles is unacceptably vague—is acknowledged as the
third factor, but I argue that considerations of determinacy are significantly
less relevant than the first two factors.33 Finally, the chapter considers the
degree of similarity between reasoning by implied principles and adopt-
ing doctrines that permit judicial invalidation of enacted constitutional
amendments.34 Ultimately, while the textual and institutional implications
of defeat of constitutional amendments through implied principles would
be momentous, it would be premature (and exaggerative) to conclude that
reasoning by implied principles inevitably leads to a doctrine of unconstitu-
tional constitutional amendments.
II. RECURRING THEMES
There are several recurring themes that emerge throughout the book, par-
ticularly in Part II’s study of the functions played by the rule of law and
separation of powers. One theme that is apparent in the analysis of the func-
tions served by implied constitutional principles is the theme of legitimisa-
tion. This includes the quest to legitimise arguments, reasoning, institutions
of state (particularly the courts), institutional processes, and ultimately, the
32 Aileen Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the
Human Rights Act 1998’ (2004) 24 Oxford Journal of Legal Studies 259; Joseph Raz, Between
Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford University
Press, 2009).
33 The discourse on indeterminacy includes Joseph Raz, The Authority of Law: Essays on
Law and Morality (Clarendon Press, 1979) 70–72, 181–82; Timothy Endicott, ‘Linguistic
Indeterminacy’ (1996) 16 Oxford Journal of Legal Studies 667, 669; Kavanagh ‘Elusive
Divide’ (ibid).
34 See Gary J Jacobsohn, Constitutional Identity (Harvard University Press, 2010) 34–83.
10 Introduction
legitimisation of the state qua state. Another significant theme that emerges
is that of institutional self-protection, which highlights the attempt of state
institutions—particularly courts—to protect their jurisdictional sphere
against interference and diminution by other organs of the state. The legacy
of Empire is also a critical element in the proceeding discussions. It will be
argued that the desire to preserve a British legacy of the rule of law and dem-
ocratic institutions impacted and continues to influence constitutional devel-
opment in the former colonies of Canada, Australia, and the Commonwealth
Caribbean.35 It becomes apparent that the perception and use of language
occupies a place in the legacy of Empire and the delivery of legal judgments.
In these respective realms, language performs both a binding function (a con-
nector that continues to tie the old Empire and the new Commonwealth) and
a freeing function (that maintains flexibility in legal judgments and permits
fluidity in the development and application of legal norms).
Throughout the case law examined in the course of this book, there is a
strong sense of the connections between the laws and institutions of the past
and those of the present, as well as an attempt to reconcile the demands of
changing circumstances with tradition. It is partly this sense of time, and
the tension between continuity and change, that permeates much of the use
of the rule of law and the separation of powers by common law courts.
It is partly this sense of time that also contributes to the legitimisation of
state institutions through appeal to implied constitutional principles, either
as representations of continuity between the laws and institutions of the
former imperial ruler or as indications of fidelity to precedent and to the
very foundations of democratic constitutionalism. There is also a distinct
spatial element to the use of the implied principles, as there is an appeal to
these principles as an attempt to distance judges from the perception that
they are making moral or political decisions. The spatial element is also
manifest in a quite different sense, in that the use of the rule of law and
separation of powers filters across the geographical boundaries of common
law jurisdictions, contributing to similarities of language and of decision-
making methodology.
Thus, this book seeks to explore the use of the rule of law and the separa-
tion of powers as legal principles by judges, and to show the connections
between such usage and the broader development of rights adjudication
both within and across the jurisdictions in question. This analysis can then
help to further inform more normatively driven scholarship on the use of
these principles in general and the legitimacy of courts’ use of such principles
in particular. These issues form part of a larger narrative arc of constitution-
alism in general and the intersection between comparative constitutionalism
and common law constitutionalism in particular.
35 See, eg, David Brooke, ‘The Rule of Law and the British Empire—Part II’ (2013) 8 Irish
Law Times 121, 122–23.

Part I
The Conceptual Context and

the Meanings of the Implied
Constitutional Principles
12
Another random document with
no related content on Scribd:
ground emitted radioactive radiation was to die. To breathe the air
exposed to those rays....
Murfree went desperately on in his search for the impossible source
of the invisible carriers of death. He found the first evidence that he
was on the right track a hundred miles from a telephone. He was far
beyond powerlines and railroads. He was in that Appalachian
Highlands, where life and language is a hundred years behind the
rest of America.
He stopped to buy food and ask hopeless questions at a tiny,
unbelievably primitive store. He tried the Geiger counter. And it
clicked measurably more often than before. Twenty miles farther on
its rate of clicking had gone up fifty percent. He spent a day in
seemingly aimless wandering, driving the laboring car over roads that
had never before known pneumatic tires.
Then he left his wife and daughter as boarders in a hillbilly cabin. His
wife was not easy about it. She protested.
"But what will happen to us?" she asked desperately. "I want to share
whatever happens to you, David!"
Murfree was not a particularly heroic person. He was frankly scared.
But he spoke firmly.
"Listen, my dear! Something like a uranium pile has started up
somewhere in these hills. It's on a scale that nobody's ever imagined
before. It's so big that it's incredible that human beings could have
started it. It's pouring out radioactive dust and gases into the air.
They're being spread by the winds. Where the stuff lands everything
dies.
"And the pile is increasing in size and violence. If it keeps on
increasing, it will make at least this continent uninhabitable, and it
may destroy all the life in the world. Not only all human life but every
bird and beast and even the fish in the ocean deeps. And something's
got to be done!"
"But—"
"I brought you so far with me," said Murfree doggedly, "because you
were no safer in Washington than anywhere else. So far, death from
the thing is a matter of pure chance. Wherever it's happening the
ground must be so hot that a column of air rises from it like smoke
from a forest fire.
"But the place where there's least smoke from a fire is close to its
edge. That's why I brought you this close. You're safer here than
farther away and much safer than you'd be closer."
"But you intend to go on!" she protested.
"I've got a protective suit," he told her. "I managed to borrow one quite
unlawfully from the bureau. I couldn't get more. If I can get close
enough to the thing to map it or simply locate it drone planes can
complete the exploration. But I've got to know, and I've got to take
back some sort of evidence.
"I'm going to be as careful as I can, my dear. The only hope that
exists is for me to get back with accurate information. I'll take that to
Washington and then I take you and the kid as far away from here as
what money we have will carry us."
"And if you don't get back?"
"You'll be safe here longer than anywhere else," he told her. "In the
nature of things, if the stuff rises up on a hot-air column, it won't start
to drop until it's a long way off.
"We're probably not more than a hundred miles from whatever
impossible thing a natural atomic pile is. I'm leaving you what money I
have. It will keep you here for years. Unless something can be done,
the rest of America will be a desert long before that time!
"I'm guessing," he added gloomily, "but nobody else is even doing
that! They blame Oak Ridge. But the weather-maps point clearly to
this area as the place from which the dust must have been
dispersed."
It was not a sentimental parting. Murfree was an earnest family man
who happened also to be a scientist. He had done what he could for
his family's safety—and it wasn't much. But now he had to do
something which would most probably be quite futile, on the remote
chance that it could do some good.
If the source of radioactive dust-clouds now drifting over America
were a natural phenomenon like a volcano, it was hardly likely that
anything could be done about it. North America would probably
become uninhabitable in months or at most a year or two. There
might be some areas on the West Coast where prevailing winds
could keep away the poison for a time, but it was entirely possible
that ultimately the whole earth would become a desert of radioactive
sand and its seas empty of even microscopic life.
So Murfree left his wife and daughter as boarders in a hillbilly home a
hundred and twenty miles from a telephone and two hundred miles
from an electric light. He went on to verify the danger that he seemed
to be the only living man to evaluate correctly. He still did not connect
Bud Gregory with it.
CHAPTER IV
The Horror Hole
Motorists drove shakily to doctors in half a dozen cities, sick and
frightened. They had high fevers and all the symptoms of burns, but
there was no sign of injury upon their bodies.
Then it was observed that a patch of blight had appeared upon a
coastal highway. All the vegetation in a space half a mile long and
three hundred yards wide had died overnight. The highway ran
through the blighted area. All the motorists had driven through it.
Fish died in a reservoir connected to a great city's water-supply
system. The city's water was cut off and a desperate attempt made to
bring in drinking-water by tank-car. Power-lines leading from Niagara
Falls were shorted by arcs which leaped across the air-gap
separating the wires. Then came the deaths in Louisville.
Nobody thought about Murfree, of course. He went on doggedly,
unspectacularly, in search of the thing he knew might mean the
depopulation of a continent and, of course, his own death if he should
succeed in finding it. He went deeper and deeper into that island of
the primitive, the back country of the Smokies.
There was no flat land. Mountains were everywhere—spurs and
crags and sprawling monsters of stone, with blankets of forest to their
tips—patches of cornfield at slopes of thirty and forty degrees. There
were bearded, ragged mountaineers with suspicion of strangers as
an instinct—barefooted broods of tow-headed children—and
mountains—and more mountains—and more....
Murfree's progress was necessarily indirect, because he could get
only the vaguest of bearings upon his objective. The Geiger counter
clicked ever more rapidly. On the second day after he had left his wife
behind, Murfree put on his protective suit.
He looked more strange and aroused more suspicion among the
mountaineers. There were no more roads, only trails, now. The car,
however, was lighter not only by the absence of his wife and
daughter, but by all of their personal possessions.
He wormed his way along impossible paths, fording small streams
and climbing prohibitive grades, while the noise of the Geiger counter
increased to a steady, minor roar. He came to a mountain-cabin
where nothing moved.
A dog lay on the rickety porch, and did not even raise its head to bark
at him. Murfree got out of his car and went to the cabin. He had been
so intent on the task of making progress in the direction he wished to
go, that he had not noticed the fact that the foliage here was dead in
patches, that everything which had been green looked sickly. He
called, and a feeble voice answered him.
The family in the house was dying. He gave them water and stayed to
prepare food for them. There was absolutely nothing else to be done.
He knew what had happened, of course. They had been burned—
painlessly, like sunburn—by the radiations from that monstrous
atomic furnace which somewhere steadily poisoned the air. The
burns went deep into their bodies. They had high fevers. They were
languid and weak. They looked like ghosts.
He asked questions and put food and water handy for them. Then he
went on. There was nothing else to do.
Only four miles farther his car ceased to have any power at all. A
Geiger Counter works because it is so designed that a single cosmic
ray or neutron, entering it and ionizing the gas within it, breaks down
the insulating properties of a partial vacuum and allows a current to
pass.
Here the air was so completely ionized that it had become a partial
conductor. The spark-plugs spat small sparks. The timer worked
erratically. The ignition system went haywire in air which permitted a
current to pass.
He got out.
He managed to turn it about, ready for retreat. He heaved his
portable Geiger counter over his shoulder. He had a thin sheet of
cadmium to shield it, so that the source of the neutrons which made it
rattle steadily could be detected. The cadmium absorbed part of the
neutron-flood. It lessened the counter's rattling when between the
tube and the neutron-source.
He went on, on foot. Mountains reared upward on every side, and
there were thick forests on every hand, but they were dead or dying.
Once in a mile or two he saw small mountaineer cabins. They
showed no sign of life. He did not approach them. The people in them
were dead, or so near it that nothing on earth could help them. And
his protective suit was not perfect.
In any case he was receiving already a possibly dangerous dosage of
radiation. Every minute of continued exposure added to his danger.
He must get away as soon as he dared. But he struggled onward,
over a landscape more desolate than that of the moon, because the
moon has never known life, while this knew only death.
He reached a crest which was actually a pass between mountains. A
steady wind blew from behind him here, and the counter roared. The
cadmium plate affected it, but not too much. This must be the place
for which he searched. He went on.
Presently he could look downward and see into a valley of dead trees
and dead grass and dead underbrush. In its center was a circular
area a quarter-mile across which was—which was somehow
unspeakably horrifying.
It was bare, baked, yellowed earth. Not even the corpses of once-
growing things remained upon it. It was simply red-clay baked to a
tawny orange, almost but not quite at red heat, still baking from some
monstrous temperature down below.
Murfree saw dried leaves borne on the wind toward it. They fluttered
above it and crisped and carbonized and went skyward, smoldering.
There was a steady column of air rising from this hot place as from a
chimney.
At the very edge of the round area was the remnant of a log cabin.
The side of the cabin nearest the sere space had carbonized and
smoldered away to white ash. One wall had collapsed, facing
Murfree. Wires ran from the cabin to a fence which precisely
surrounded the barren place, upheld on thin metal rods. Sunlight
glinted on glazed insulators.
Murfree took field-glasses and looked into the cabin. He saw a heap
of ragged, scorched clothing and something within it. He saw an
assemblage of improvised, untidy apparatus from which glassy
gleams were reflected. He could make out no details.
Then he knew what had happened. It was not reasonable. It was
starkly impossible. But it was no more impossible than welding a
water-pump shaft in its place or eliminating all friction from a frozen-
tight motor so that it could be started again, or, say looking at a
Geiger Counter and understanding how it worked without the least
idea of what it could be used for.
Murfree had a small camera and dutifully took pictures without
attempting to go closer. He had no hope that the pictures would turn
out. The plates were surely fogged by the radiation. He bent his
cadmium plate into a half-cylinder and did his best to make sure of
what he now unreasonably knew.
The results were not clean cut. They did not have that precise clarity
that a really convincing test of a physical phenomenon should
possess. But the edge of the barren area was sharp. It was distinct.
And the neutron-flood came from the air above the bare space only.
Dust swirled up in little sand-devils above the baked earth, and spun
out to invisible thinness in the column of air which rose, spiraling to
the sky. It rose and rose. The air itself was radioactive, containing
radioactive oxygen and nitrogen and hydrogen—from water-vapor—
and all the elements in a moisture-laden breeze. It was a chimney, a
whirlwind of death-laden heated gases rising to the skies. But the
radioactivity of the earth—which surely made the heat and the poison
—was somehow confined.
Murfree turned very quietly and went away again. He knew that he
had accomplished his task as he had first envisioned it. He knew
what poured deadly poison into the air. He had seen it. He could tell
how to find it again. And so he must hurry.
His protective suit might or might not have preserved his life. He
might already be literally a dead man, though he still walked and
breathed and thought feverishly. If he could have been sure that he
would live to descend into the valley and struggle to that half-burned
log cabin, and utterly smash the vaguely-seen heap of wires and
tubes and hand-wound coils—and if he could have been sure that it
would not increase the menace—he would have done it.
His own life seemed a very small price to pay for the ending of that
lifeless, motionless threat to the life of all the world.
But he wasn't sure. And the information he had—especially the fact
that he knew what Bud Gregory was—was so much more important
than his own life that he could not risk the loss of what he had to tell.
On the way from the place he had found, floundering on in the car
that at first hardly ran at all, and then back through the tortuous way
past the mountainsides of dying trees and patches of dying cornfields
and the small and squalid cabins in which nothing moved, and the
spectacle of a world dying about him, Murfree hardly noticed the
desolation or thought about his own very probable death.
He thought with a grim concentration of Bud Gregory.
CHAPTER V
He Didn't Know It Was Loaded
The car stopped again before the repair shed in Brandon. It was
close to sunset. Bud Gregory sat in a leaned-back chair against the
corner of the shed. There were eight cars waiting for him to feel like
working on them.
He opened his eyes and grinned lazily as the car came to a stop. The
sunset colorings were magnificent. There was a strange, vast quiet all
about. It was the sunset hush. Murfree stopped the motor and got
out.
"Car's all right, ain't it?" asked Bud Gregory genially.
"The car's all right," said Murfree. "But I want you to do something for
me."
"Not tonight," said Bud Gregory. He yawned. "I was thinkin' about
knockin' off an' goin' home to supper."
Murfree pulled out his wallet. He had thought it out carefully. An offer
of too much money wouldn't mean a thing to this man.
"I just want you to talk," said Murfree. "Five dollars for half an hour,
just for telling me about that outfit you built for somebody—that outfit
that stops neutrons cold."
Bud Gregory blinked at him.
"Neutrons," Murfree reminded him, "are the little bits of stuff that
make the Geiger counter—the funny radio tube—conduct electricity.
You made an outfit for somebody that would stop them."
Bud Gregory grinned.
"Now, how in heck did you know that?" he asked, marveling. "That
fella wasn't likely to tell nobody, an' I ain't!"
"I know!" said Murfree grimly. "That fellow wasn't as smart as he
thought he was. He's dead. That outfit killed him."
Bud Gregory was startled. Then his grin turned rueful.
"Serves 'im right," he said uncomfortably, "but it's his own fault. I told
him it was dang'rous, but he done me a dirty trick. He swore he was
gonna law me for the way I fixed his car. He said the way I fixed it, he
couldn't sell it even if it would run.
"Then he says he'd call it square if I fixed up another kinda gadget for
'im, but I was gonna go to jail or have to pay for his car if I didn't. I told
him it was dang'rous, but I didn't have no money to pay for his car. It
run good, too! Better'n a new one!"
Murfree waited. He counted out five one-dollar bills.
"If he's dead," repeated Bud Gregory uncomfortably, "it ain't my fault!
I told him it was dang'rous but he wanted it, so ruther'n try to pay a
hundred an' a quarter or have a pack o' lawin', I done it. It took a time,
too!"
Murfree handed over one one-dollar bill.
"That's six minutes' talk," he said. "Go on."
Bud Gregory leaned back. He spat expansively.
"Don't mind this kind of work so much," he said appreciatively. "This
fella come drivin' in just like you done. He'd skidded off a wet clay
patch an' smashed his radiator all to smithereens. He wanted me to
fix it. It was too tough a job.
"I told him I didn't aim to work myself to death, but he kept pesterin'
me, so I says, 'All right. I'll fix 'er so she can run for ten dollars.' I
thought that'd scare him off, but he took me up. An' I didn't know how
to fix it, but I knew I could figger out a way.
"So I got to thinkin', with him pacin' up an' down waitin' for me to set
to work. An' I thought to myself, 'Fixin' that radiator is a job of work!
It'd be easier to figger out some other way to keep her cool!' An' then
it come to me."
"What?"
"All a radiator does," drawled Bud Gregory, "is let the heat get out of
the coolin' water. His radiator wasn't no good. If I fixed up some other
way to take the heat out of the coolin' water, she'd run just as good
an' I could bypass the radiator with a piece o' hose. So I done it. Took
me near an hour."
"How'd you take the heat out of the water?" demanded Murfree.
"Shucks!" said Bud Gregory. "I got a knack for that kind of thing.
Y'know you can heat a wire by passin' a current through it. I figured
you can cool a wire by takin' current out of it.
"I fixed up a wire so the little hunks of stuff that metal's made of got all
lined up. Then the heat tries to knock 'em out of line, an' makes 'em
pass on them—uh—them little spinnin' things that a electric current
is."
Murfree felt a crawling sensation at the back of his skull. This was
uncanny. Bud Gregory was speaking of the polarization of atoms in a
metal wire—which cannot be done—so that the random movements
imparted by heat—which he could not know anything at all about—
would set up strains which could only be relieved by an exchange of
electrons, which would in turn, mean a current of electricity.
He had simply reversed the normal process of turning current into
heat, and had turned heat into electricity to cool a motor. The direct
transformation of heat into electricity has been a scientists' dream for
a hundred years, one never accomplished.
But Bud Gregory had done it to save himself the trouble of repairing a
shattered radiator.
"So," said Bud Gregory, "I stuck that wire in a hose an' bypassed the
radiator. It'd take out the heat an' give current. I strung some ordinary
wire under the car to use up the current. That's all.
"The car run good. He went off, but a week later he come back ragin'
that he couldn't sell his car. Nobody'd buy it without a regular radiator
workin'. How long I been talkin'?"
Murfree silently passed over another dollar bill. Bud Gregory was
decidedly something that there is no word for. He knew intuitively the
things that trained scientists have as yet only partly found out. Just as
some men know by instinct where fish will be found and what bait
they will rise to, Bud Gregory knew the behavior of atoms and
electrons.
As freak mathematical marvels—some of them half-imbeciles
otherwise—perform infinitely complex mathematics problems in their
heads with no clear idea of the process, so Bud Gregory performed
miracles in physics with no idea how he did it. He simply knew the
right answer when a problem was presented.
Murfree felt an envy so acute that it was almost hatred. But back in
the hills there was a thing that might make the world uninhabitable.
And Bud Gregory had made it. He fondled the dollar bill, folding it.
"He wanted me to fix his car right, he says, an' I got mad. I told him it
was righter than when it was made. An' it was! Then he says he's
goin' to law me. But then he says, 'Look here! I was makin' a trip
lookin' for some minerals.
"'I got a thing that helps me find 'em, but part of it's got lost. You fix
me another an' it'll save me a long trip out an' I'll forget about the car
an' pay you ten dollars extra.'"
He spat with an air of luxury.
"He had a dinkus like you got, only bigger. An' he'd had a sheet o'
metal that was supposed to block off them little hunks of stuff that
come down out of the sky. That's what'd got lost. He says if I can fix
somethin' to take its place he'll call it square, but he'll law me
otherwise."
Murfree interpreted mentally. Someone had been making a trip into
the Smokies in search of minerals. He had a Geiger counter. He must
have been working on a hunch that uranium could be found. It was
not improbable.
When Bud Gregory fixed his car in an utterly improbable fashion—as
he'd fixed Murfree's—this unknown other man had understood, like
Murfree. But he'd come back in feigned rage and demanded the
equivalent of a cadmium shield, knowing that cadmium was
unavailable.
He'd realized what Bud Gregory was—a near-illiterate with intuitive
knowledge of what subatomic particles could be made to do, a
knowledge as unreasoning and as unconscious as the feats of
mathematical geniuses. He'd demanded an impossibility because he
knew Bud Gregory could achieve it. And Bud Gregory had!
"He made me plenty mad," said the lanky man, resentfully. "He stood
there sneerin' at me, sayin' if I was so smart as to fix his car so it
would run an' he couldn't sell it, maybe I could fix somethin' that he
needed. Either that or else."
Murfree recognized something like genius in the unknown man too.
He'd taken the one infallible course to make Bud Gregory work.
Threaten his leisure and sneer at his ability. Of course the unknown
got what he wanted!
"So?" said Murfree.
"I fixed him up!" said Bud Gregory in amiable spite. "I fixed up a
couple of radio tubes—he had 'em—an' made 'em so that they made
a kind of horn-shaped—uh—block. Nothin' could go through it.
Nothin'! No matter what size you fixed it, the horn 'ud be the same
shape, an' you could make it any size.
"Nothin' would get through the walls of that horn. Not even them little
hunks of stuff you call—uh—neutrons. I set up the dinkus an' showed
him.
"His clickin' dinkus didn't click any more. It stopped them neutrons
dead. An' then I says, 'Just for extra, you can run a wire around the
place you camp an' set this upside down an' not even bugs can get in
to crawl on you. But it's dangerous! It's dangerous!'"
He looked at Murfree, grinning.
"I figured it'd make him sick as a dog but I'd warned 'im! It ain't my
fault if he stayed in it an' died!"
Murfree saw. He saw much more than Bud Gregory could tell him. He
envisioned a quarter-mile circle of wire, built in a remote mountain
valley. It made a horn-shaped—cone-shaped—barrier reaching down
into the earth. Nothing could pass through that barrier, not even
neutrons.
There is some slight radioactivity everywhere. Even rocks possess it.
It is the cause of the internal heat of the earth. Perhaps the unknown
man had come upon indications of uranium ore underground in that
valley, perhaps not. But, surrounded by a shield through which no
neutron could escape, any mass of material on earth would become
an atomic pile!
A single molecule of uranium in any mass of rock will sooner or later

disintegrate, giving off high-speed neutrons. Normally they travel
indefinitely and are harmless. Some go up into the air and may ionize
a single molecule. Some may find a fissionable atom and disrupt it.
But by far the greater number are simply lost. Because they can
escape. Within a barrier from which they cannot escape, they would
bounce backward and forward until, within even a limited mass of
matter, they did disrupt another atom. Neutrons from that disrupted
atom would then go on and on!
An ordinary atomic pile must be of a certain minimum size because it
loses so many neutrons from its outer surface that no chain reaction
can maintain itself. As the size of the pile increases the number that
does not escape increases faster than the number that does. There is
a size where enough strike fissionable atoms before escaping to
maintain the reaction.
When as many are freed as escape the pile, a chain reaction sustains
itself. But when none can escape, there is no minimum size. There is
no minimum purity of materials. Prevent neutrons from escaping and
anything at all, of any size, becomes an atomic pile.
Murfree passed over a third dollar bill.
"Now I'm paying you to listen to me," he said evenly. "That man used
your outfit and made a circular block for neutrons a quarter-mile
across with the horn pointed down. Maybe a million, maybe five
million tons of rock were inside it. Maybe there was some uranium in
it too. None of the neutrons could escape. Each one bounced back
and forth until it broke another atom. That made more neutrons
bounce back and forth and break other atoms. You knew that would
happen. You knew even a little pile would make him sick. But he
made a monstrous one! It didn't make him sick. It killed him.
"Perhaps he intended to run it a while and then shut it off. It would
have created enough radioactive isotopes by its normal working to
make him a millionaire many times over. But he didn't turn it off in
time! Because it killed him! And so the pile kept on working!
"Back in the mountains it's working now. There's hot air rising from it,
and every breath of it is deadly poison! It goes up high and the winds
spread it and presently it comes down to the ground again and kills.
He didn't turn it off!"
Bud Gregory gaped at him. It was clear that he had never thought of
such a thing. So much more than a genius that there is no word for it,
he was like a child or a savage in that he could not think ahead. But
he understood now. The unnameable intuition which had carried him
to the achievement of a miracle had not told him the consequences of
the miracle. But as Murfree pointed them out he saw.
"M-my gosh!" said Bud Gregory. He looked enormously concerned.
"Nobody can live to get to it to turn it off," said Murfree, grimly.
"Maybe a plane can drop a bomb that will blast it. But it'll be weeks
before I can make myself believed. Meanwhile there's poison being
poured into the air. People are dying right now.
"For five miles around that thing you made, there's not even a blade
of grass alive. The people in the cabins for ten miles around are dying
and don't know why. And that horn-shaped mass of ore and earth
inside your field is full of more flying neutrons than any atom pile ever
was.
"Suppose we turn that shield off with a bomb and all those free
neutrons are turned loose at once! How far away will they kill every
living thing? Fifty miles? A hundred miles?"
Bud Gregory swallowed. He undoubtedly understood more clearly
than Murfree himself, now that it was pointed out to him.
"M-my gosh!" he said again. "I—uh—I didn't meant nothin' like that!"
Murfree handed him a fourth dollar bill with an indescribable
sensation of irony.
"Now tell me how to turn it off without killing everybody all the way to
here!" he commanded evenly. "If it kills me to do it that's all right. But
if you don't tell me how to stop the thing I'm going to kill you, you
know. Here and now."
He didn't raise his voice. He didn't realize that he was threatening. It
simply seemed necessary. If Bud Gregory could doom a continent or
a world and not be able to stop what he had created, he was too
dangerous to be allowed to live.
But Bud Gregory spoke unhappily.
"I didn't mean nothin' like that! I just meant to make that fella sick as a
dog. I figured he might make a little horn an' sleep in it when he
camped. He'd be plenty sick by mornin'. But the dumb fool—" Then
he knitted his brows. "I'll figure out something. I gotta knack for that
kinda thing."
CHAPTER VI
... Who Wasn't There
Just three days later, Murfree was back at the high hill-crest which
was actually a pass between mountains. A steady wind blew from
behind him. All about him the world was dead. Nothing lived. Nothing!
He didn't carry the counter, now. There was no point in it.
He carried, instead, a clumsy contrivance set up in a wooden box in
which canned tomatoes had once reached the village of Brandon.
Bud Gregory walked with him, anxiously holding before him a loop of
wire which he said would stop the neutrons for his own protection.
Bud Gregory had actually sat up at night to make the outfit for his
own protection and the mass of tangled wiring Murfree carried.
They reached a spot where they could look into the valley beyond. It
was literally a valley of death. There was nothing alive in it. Not one
blade of grass, not one shrub, not one bird or insect, not even a
bacterium. Everything was dead.
And a swirling, humming column of heated air rose skyward,
snatching up deadly dust from a quarter-mile patch of earth that was
quite red-hot, now. Every grain of that dust was the most deadly stuff
known to men.
Bud Gregory looked. He was pale. He had come through miles of
desolation. He had seen the silent cabins of the mountain-folk and
the shriveled crops that they had planted. He knew that he had made
the thing which had killed them. But now, looking down at the
carbonized half-cabin and the heap of huddled garments in it which
had been a man, he muttered defensively.
"That fella played heck! I told him it was dang'rous!"
He propped up his loop of wire so that it still protected him. Murfree
silently unloaded himself. Bud Gregory made a final assembly. There
were a few—a very few—radio tubes. Murfree had traced every lead
in the complicated wiring, and he could not even begin to understand
it.
By all modern knowledge of electronics, it would do nothing whatever.
The tubes would light and current would flow and nothing would
happen—according to modern knowledge of such things. But Bud
Gregory had labored over it and risked his life to bring it here.
He was untutored and almost illiterate, while Murfree had spent years
in the study of just such science as this should represent. So Murfree
helped as a naked savage might help to set up a radio-beam, in
absolute ignorance of even its basic principles.
"Like I told you," said Bud Gregory in a troubled voice, "this new outfit
is like that there thing that makes that—uh—pile. Only this don't make
a hollow horn. This here is solid. It won't only stop them—uh—
neutrons from goin' through a place. It'll stop 'em dead in their tracks,
right where they are when it hits. It's gonna make a lot of heat."
He set up what could only be a directional antenna, weirdly distorted.
Later, much later, Murfree would draw the design from memory and
then marvel at the pattern it would project. Now he was simply grim.
Bud Gregory checked his connections.
"All I'm worried about is the heat," he said uncomfortably. "I guess we
better not look."
He adjusted the weirdly-shaped antenna. He sighted by some
instinctive method of his own. Then he turned his head.
"Don't look. It's gonna get hot!"
He threw a clumsy, home-made switch. And the earth rocked.
Gregory threw a clumsy, home-made switch—and the earth rocked!
There were probably some millions of tons of material acting as an

atomic pile, filled with all the monstrous energy of speeding neutrons.
Then, suddenly, those neutrons stopped. Radioactivity stopped—
dead. And all the monstrous power of the reaction in being, was
converted into heat. It was not atomic energy at all. It was neutronic
energy, which is of a different and vastly lower order. But that was
enough!
The sheer expansion of stone, raised thousands of degrees in the
fraction of a second, made the ground stagger. Murfree reeled as the
very hill shook beneath him. There was a lurid flash of light. The dull-
red glowing surface of the quarter-mile circle became instantly molten
—white-hot—liquid! There was a monstrous bellowing and rumbling
from the very bowels of the earth.
And then the round lake of melted earth spouted upward. Gases
underground strove mightily to expand in the mass of melted magma.
Lava welled up and spread and engulfed the tiny fence and the half-
burned cabin and the incredibly small apparatus which had created
the whole cancerous thing. Cabin and everything else disappeared in
the spreading white-hot flood.
Then bubbles reached the surface. Gigantic masses of incandescent
gas leaped upward. The rock was literally effervescing, boiling,
bubbling in a horrible blinding froth which spouted masses of liquid
stone into the sky.
Murfree stood his ground for seconds only. Bud Gregory turned and
ran and Murfree ran with him. Ahead of them a fiery mass of rock
hurtled down and splashed. Fire broke out. There were other fires to
right and left.
Just once, as he fled, Murfree turned his eyes backward and saw a
meteor-like mass of melted stone fall upon and obliterate the
apparatus they had brought and used in the pass. Murfree felt an
illogical sense of relief even as he ran on desperately.
The noise died down in half an hour. After all, huge as the thing had
been, it was minute by comparison with an actual volcano, however
much more deadly. By the time they had reached the car storm-
clouds were gathering over the blazing area.
Ten miles away—the car ran perfectly from the first, in proof that
there was no longer a neutron-flood to ionize the air—ten miles away
they saw rain falling upon smokily flaming hillsides. Lightning flashed
among dark clouds. Water poured down. Not even a forest fire could
survive such a downpour.
They went back to Brandon. It took them a day and night of steady
driving, alternating at the wheel. Bud Gregory had little to say the
whole way back. But when Murfree stopped the car before the repair
shed and let him out Gregory grinned uncomfortably.
"What you goin' to do now?" He added apologetically: "I didn't mean
to make nothin' like that. He made me mad an' then he used that
dinkus like it wasn't meant to be used."
Murfree had left his wife and daughter in Brandon while he went back
into the hills. Now he spoke tiredly.
"I'll pick up my family and go back to Washington. I'll report as much
as they'll believe. Anyhow, when that rock cools off there'll be more
radioactive stuff in it than is available in all the rest of the world
together. Since your apparatus is cut off it won't act as a pile now, but
it's plenty radioactive!"
Bud Gregory swallowed.
"I—uh—I lost time from work, goin' along with you," he said uneasily.
"Y'oughta pay me day wages, anyhow. Huh? Say! You kinda liked
that thing I fixed your car with. How'd you like to buy it?"
Murfree grimly got out his wallet. He counted what he had left. It was
his expenses for getting back home.
"I've got just six hundred dollars," he said. "It's worth more, but I'll give
you that for it."
"She's yours!" said Bud Gregory. All his uneasiness vanished. His
eyes glistened. He brought out the round cheesebox and put it in the
back of Murfree's car.
"Anyhow," he said contentedly, "I can always make another one when
I got a mind to. So long."
Murfree drove off and got his wife and little girl. He left Bud Gregory
looking speculatively at the eight automobiles awaiting the moment
when he felt like working....
Back in Washington Murfree made his report. At first they told him he
was crazy. But seismographs did report a minor earthquake centered
just where he'd said. A plane flew over and brought back photographs
which proved the truth.
And then the Manhattan Project took over and built a splendid
concrete road to the mass of highly if artificially radioactive rock and

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Principled Reasoning in Human Rights

Adjudication 1st Edition Se-Shauna

Economic and Social Rights Law: Incorporation,

Grounding Human Rights in Human Nature Szymon

The Internet And Constitutional Law The Protection Of

Human Rights Human Wrongs In the Scale of Human

Human Rights and Transitional Justice in Chile Rojas

The Human Rights Council The Impact of the Universal

The Birth Of Digital Human Rights: Digitized Data

Prosecuting Human Rights Offences Rethinking the Sword

Implied constitutional principles form part of the landscape of the

Volume 15 in the series Hart Studies in Comparative Public Law

OXFORD AND PORTLAND, OREGON

Hart Publishing Ltd Bloomsbury Publishing Plc

Published in North America (US and Canada) by

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1. Introduction: The Doctrinal and Institutional Context����������������������� 1

Part II: Functions Played by the Implied Constitutional Principles

Al-Kateb v Goodwin (2004) 219 CLR 562���������������������������������������� 47–49, 82–83

Babcock v Attorney General Canada [2002] 3 SCR 3���������������������������������������� 191

Reference re Secession of Quebec [1998]

Astaphan & Co (1970) Ltd v Comptroller of Customs

A (Children), Re [2000] EWCA Civ 254, [2000] 4 All ER 961���������������������������� 92

Cart v Upper Tribunal [2011] UKSC 28, [2012]

R (Gurung) v Ministry of Defence [2002] EWHC 2463

Attorney General of the Republic v Mustafa Ibrahim

1 R (on the application of Buckinghamshire CC) v Secretary of State for Transport

[1997] 3 SCR 3 (SC, Canada) (Provincial Judges Reference or Remuneration Reference).

Committee of the Privy Council (JCPC), St Vincent and the Grenadines).

documents. There is abundant theoretical debate over the meaning of each

2 SCR 217 (SC, Canada) (Secession Reference).

­constitutional development versus an ideological approach to constitutional development.

10 Christopher McCrudden and Gerald Chambers, ‘Introduction: Human Rights in British

Constitutional Ideas (Cambridge University Press, 2006) 45–46.

The label ‘Westminster-style’ or ‘Westminster model’ constitutional system

15 R v Kirby, ex p Boilermakers’ Society of Australia (1956) 94 CLR 254 (HC, Australia)

I. MAP OF THE BOOK

The book proceeds by progressing from a critical analysis of the concept

are interrelated foundational principles of constitutional democracies21 and

The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford

Dimension?’ (2004) 17 Ratio Juris 474.

Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial

(ed) Constitutionalism: Philosophical Foundations (Cambridge University Press, 1998) 190.

(1999–2000) 40 Virginia Journal of International Law 1103 and Christopher McCrudden,

II. RECURRING THEMES

Law Times 121, 122–23.

The Conceptual Context and

A single molecule of uranium in any mass of rock will sooner or later

There were probably some millions of tons of material acting as an

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