Tuesday, January 29, 2008

'Pith and Substance' in the Characterisation of Statutes: A Comparative Study

Professor Tony Blackshield, Professor Emeritus at Macquarie University, will deliver a lecture on the above subject at a seminar being organised by the Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi, on February 1 at its Conference Room. An abstract on the seminar, prepared by the Centre, reads as follows:
A federal system involves a distribution of legislative powers, so that different legislatures have power to enact statutes on different subjects. Hence statutes are often challenged on the ground that they relate to a subject on which the enacting legislature has no power to make laws. For the purpose of resolving such questions under the Canadian Constitution, the nineteenth-century Privy Council introduced the metaphor of "pith and substance" – thus giving expression to an essentialist idea that every statute has one uniquely "real" or "true" character. Modern (or postmodern) federal systems take a much more flexible view of such questions. The High Court of Australia has achieved flexibility by rejecting the metaphor of "pith and substance". The Supreme Court of India has achieved the same flexibility by retaining the metaphor, but reinterpreting it in a distinctive way.
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