We have already seen an introduction about the notion of moral impact, the normative impact of non-physical events, and what can be called legal(ly proper) impact. Here, I will examine the interinstitutional application of the common law principle of legality (see Meagher 2011) as an example of moral impact outside the context of lawmaking.[1]
The common law principle of legality: the Momcilovic case
In its traditional rendition, the principle of legality reads that Parliament should not be taken to have intended to abrogate or curtail fundamental common law rights except by express words.[2]
The institutional background enabling the application of the principle of legality is the joint institutional practice through which Parliament typically responds by protecting rights when the judiciary insists that a statute with unclear language not be enforced, since doing so could result in the infringement of a right.[3]
For the purposes of my analysis, I will take as an illustrative example the litigation in R v Momcilovic (2011). The Momcilovic case concerned the rights-compatibility with the Victorian Charter of Human Rights and Responsibilities (henceforth, Charter) of section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Drugs Act), a statute enacted by the State of Victoria which established a reverse legal burden of proof.
The apex of the Momcilovic litigation regarded the construction which the Victoria Court of Appeal gave to section 5 of the Drugs Act, by reference to certain provisions of the Charter which are said to be relevant to its interpretation. Under section 5 of the Drugs Act, a substance is deemed “to be in the possession of a person so long as it is upon any land or premises occupied by him … unless the person satisfies the court to the contrary” (emphasis added).
A major issue has been whether the interpretive accommodation — prior to the enactment of the Charter — of section 5 as allocating a legal burden of disproving possession withstands the scrutiny of the Charter. On March 17th, 2010, the Victorian Court of Appeal held that the reverse onus provision was an unjustified limit on the right to the presumption of innocence under section 25(1) of the Charter and issued a declaration of inconsistent interpretation under section 36(2) of the Charter. On appeal the High Court of Australia reviewed this judgment and on September 8th, 2011, it upheld the constitutionality of the Charter.
Beyond the Moral Impact of Legislation
The moral impact of the practice of insistence-induced attention to rights can be ascertained as follows:
An appellate court takes the fact that a statute’s language fails to meet the requisite standard of clarity as settling the question of whether to decide a case in favor of the right-holder (i.e., the person whose right(s) is in danger of being infringed by the enforcement of an ambiguously worded statute).[4]
The pro-right judicial decision (i.e., the decision that “reads” the ambiguous statute in a way that is compatible with the full enjoyment of the endangered right) is the event that operates as the originating source of an instance of moral impact which, on this occasion, is not the direct result of legislative action or of the exercise of lawmaking power by the courts.
Upon making this decision, it becomes pro tanto right that the following two states of affairs obtain:
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- Other things being equal, future cases whose resolution depends on resolving a similar problem (i.e., a problem where ambiguous statutory language entails the possibility of infringement of a protected right) are treated alike by Courts.
- Other things being equal, Parliament opts for language that renders more precise the bearing of statutory language on fundamental rights.
A possible explanation of the rightness of the first state of affairs is the practice-immanent principle of formal equality to the effect that to treat a later case of rights-imperiling statutory ambiguity differently from the first would be to fail to treat the parties before the courts equally.
A possible explanation of the second state of affairs is the practice-immanent principle of interbranch fidelity to the effect that Parliament should respond positively to the legitimate expectations of the judiciary. In the present case, a fitting way of responding positively is precisely to see to it that greater attention is paid to the linguistic clarity of rights-engaging statutes.
In virtue of the same event (i.e., the pro-right decision) taking place, it also becomes pro tanto good that the same two states of affairs obtain.
It is pro tanto good that similar statutory ambiguities are resolved by Courts in favor of the affected right(s) because, by seeing to it that this happens, Courts contribute to the improvement of the political situation by promoting the political value of limiting the coercive power of the state.[5]
This value is practice-transcendent in the previously explained sense that its normative appeal is not derived from the degree to which constraints on the government are entrenched in an actual constitutional instrument. Regardless of whether such limits are expressly included in a constitution and regardless of the degree to which these express limits are resistant to change or removal by those whose powers are constrained, it is desirable that such “proto-legal” constraints apply on the power to make new laws, the power to implement them and the power to adjudicate disputes under them.
Moreover, it is pro tanto good that Parliament sees to it that clear words are used when it means to abrogate a fundamental right because, by seeing to it that this happens, Parliament shoulders the requisite political cost and thereby maintains direct political accountability to the electorate. Just like the limitation of the coercive power of the state[6], political accountability is a practice-transcendent value in the sense that its normative appeal does not depend on whether the other branches of government or the people actually hold or would hold Parliament accountable for infringing fundamental rights. Rather its normative force resides in the fact Parliament is in fact (rather than simply “held”) responsible for unduly abrogating fundamental rights.[7]
To read more about this, check out the following essay: Gkouvas, T. (2022). Rethinking the Legal Effect of Interpretive Canons. In Gonzalo Villa Rosas and Jorge Luis Fabra-Zamora (eds), Objectivity in Jurisprudence, Legal Interpretation and Practical Reasoning (Edward Elgar Publishing), pp. 193-214.
My work on this blogpost has been supported by Grant RYC2023-043621-I funded by MICIU/AEI /10.13039/501100011033 and by the FSE+.
SUGGESTED CITATION: Gkouvas, Triantafyllos: “The Impact of Moral Impact (Part II)”, FOLBlog, 2025/7/3, https://fol.ius.bg.ac.rs/2025/07/03/the-impact-of-moral-impact-part-ii/
NOTES
[1] The doctrinal elaborations that followed the initial formulation of this principle are the result of addressing two major issues. The first issue regards the scope of the principle of legality, namely, the catalogue and nature of rights that properly trigger the presumption and, subsequently, the canon against legislative abrogation. The second issue regards the stringency of the principle. This issue concerns the relevance of statutory purpose and text for determining the threshold of linguistic clarity above which the presumption against legislative abrogation is displaced.
[2] This precocious variant is typically traced to the 1908 decision of the Australian High Court in Potter v Minahan (1908). A modern addition to this content includes, besides express language, the existence of a clearly implied intention of abrogation where implication is necessary to prevent the statutory provisions from becoming inoperative or meaningless. For an in-depth analysis of the institutional embeddedness of the principle of legality in the Australian common law system see Meagher 2016.
[3] The wording of a statute becomes relevant for discerning the relevant shades of ambiguity in statutory language. For instance, a reoccurring problem is whether general but syntactically and semantically unambiguous words should be given their full literal meaning, even where that would override fundamental rights. Al-Kateb v Godwin (2004) is a good illustration of this problem. Section 196 (1) of the Migration Act 1958 (Cth) provided that an ‘unlawful non-citizen found in Australia was to be taken into custody and detained until granted a visa or removed or deported from Australia. The appellant had been refused a visa but because he was stateless and no country would agree to take him, Section 196 (1) “on its face” required Al-Kateb’s indefinite detention. In response to the majority’s opinion that there was no question of ambiguity in the mandatory character of Al-Kateb’s indefinite detention, Chief Justice Gleeson observed, the statute did “not, in express terms, address” or provide for the particular sub-class of unlawful non-citizens whose removal was not possible in the circumstances thereby concluding that despite the fact that the language of the statute was syntactically and semantically unambiguous, it did not expressly authorise indefinite detention.
[4] The reason for deciding in favor of the specific rightholder (i.e., Vera Momcilovic) is not directly grounded in the practice of judicially inducing the Parliament’s attention to rights but in the principle of in dubio pro libertate.
[5] If a single-word name is needed to designate this value, I suggest “constitutionalism”. Besides being theorized as a model of government, constitutionalism can be considered a value — or at least a value-laden concept — because it embodies an idealization of how institutions should interact. Alon Harel presents a compelling argument for a value-theoretic interpretation of what he refers to as “robust constitutionalism”. See Harel 2014: 133-90.
[6] A structural difference between the values that explain the goodness of state of affairs (1) and state of affairs (2) is that, whereas the former (limiting the coercive power of government) mainly pertains to how horizontal relations between institutions are best organized, the latter (political accountability to the electorate) mainly pertains to how vertical relations between the state and individuals are best organized. On this distinction see Zucca 2015: 302.
[7] For the distinction between making judgments about whether an agent is responsible for certain events or states of affairs and the practice holding others responsible for such occurrences see Talbert 2024. Whereas the former type of judgment rests on the satisfaction of a set of objective requirements on being responsible (e.g., conditions on free will), the latter type of judgment presupposes essential reference to the reactive attitudes and emotions of the one making the judgment (see, relatedly, Strawson 1962).