The Progressive Interpretation in the Commonwealth Constitutionalism: Judicial Activism or Vandalism?

Abstract

This paper examines the model of constitutionalism that operates today in Canada, New Zealand, the United Kingdom, and Australia, with particular focus on the duty of progressive interpretation that this model imposes on the judges. According to this kind of interpretation, legislation must be read and given effect in a way which is compatible with the protected rights, even if that leads beyond the literal meaning of the legal norms. The paper starts with a brief description of the basic structure of the model as a cooperative scheme of rights protection. Later, it offers an analysis of some examples of the constructive interpretation in the case law of the Canadian Supreme Court and the British House of Lords, with the aim of highlighting the self-imposed limits of judicial activism. Finally, the author attempts to find a proper justification for this kind of interpretation through a substantive conception of legality, which includes the constitutional values that judges invoke to revise the legislation.