Jo Eric Khushal Murkens

Jo Murkens

Administrative support: Sarah Lee
Room: New Academic Building 7.31
Tel. 020-7955-6675 

Jo Murkens studied English and European Law in London and Copenhagen, and wrote his PhD at the European University Institute in Florence

see also Jo Murkens's LSE Experts Page

see also Brexit - blogs and news

Research Interests
  • Constitutional and Administrative Law

  • Constitutional theory and history

  • Comparative constitutional law

  • European Union Law

  • European legal culture and history

External Activities
  • Book Review Editor for Public Law.

  • Subject convener for Public Law, University of London, International Programme


Public Law – Text, Cases and Materials, (with A. Le Sueur and M. Sunkin), 3nd ed, Oxford University Press, 2016

The authors, leading academics in the field, provide students with a thought-provoking and detailed analysis of the core issues relevant to students studying public law setting them in their political context. Each chapter provides a clear textual account of the topics covered. The text is supported by an excellent range of extracts from a wide range of sources, such as academic writing and reports of parliamentary committees, as well as extracts from leading judgments.

From Empire to Union: Conceptions of German Constitutional Law since 1871, OUP (2013)

This book examines the modern development of German constitutional thought by tracing the key public law concepts of state, constitution, sovereignty, and democracy from their modern emergence in the 19th century through to the present day. It analyses the constitutional relationship between Germany and the EU from a sociological and historical perspective, looking at how German constitutional law has conflicted and compromised with EU law, and the difficulties this has raised.

Scottish Independence: A Practical Guide (with P. Jones and M. Keating), Edinburgh University Press, 2002

Scottish Independence

How might Scotland achieve independence? And what would be the consequences, for Scotland and the rest of the UK? Independence is ever-present on the Scottish political agenda. This book is the first serious study of the likely road to independence, and the consequences for the Scottish people and the Scottish economy. Scottish Independence starts with a detailed guide to the stages along the route to independence and goes on to analyse the legal, political and economic consequences. It asks key questions: *If Scots vote for an SNP government in Edinburgh, how will that government deliver its manifesto promise of achieving independence in Scotland? *If the Scots attain independence, what will change? What will Scotland's place be in the world? Can Scotland remain in the EU? *What are the economics of independence? Would there be a flight of capital and a stock-market fall? How much economic freedom would an independent Scotland have? *How much would change in the daily lives of Scots as a result of independence? How much autonomy would Scotland have as a small independent state in Europe? Scottish Independence will have an impact on public policy and on academic thinking, and is of key interest to politicians, civil servants, academics, journalists and anyone interested in Scotland's future.

Selected articles
and chapters in books

'Mixed Messages in Bottles: the European Union, devolution, and the future of the constitution' (2017) 80(4) Modern Law Review pp.685-696

An unprecedented eleven-member UK Supreme Court decided R (Miller) v Secretary of State for Exiting the European Union on 24 January 2017. The Government's argument, that it could start the process of withdrawing from the EU using a prerogative power instead of an Act of Parliament, was comprehensively defeated by an 8:3 majority. However, the Government also secured a unanimous verdict that it did not need the consent from the devolved legislatures in Scotland, Wales, and Northern Ireland before invoking Article 50 of the TEU. I explore the judicial argumentation in light of Philip Bobbitt's six modalities of constitutional argument, five of which feature, and one of which ought to have featured, in this seminal case.

'The Blunders of Brexit: Economics, Sovereignty, and the Constitution' Law Society and Economy Working Paper Series 14-2016 (2016)

What exactly was the outcome of the June 23 referendum? For some, it breaks or boosts Britain’s economic prospects. For others, the result allows Britain to ‘take back control’ of sovereignty. In this paper, I dissect the arguments relating to economics and sovereignty, which fall into the category of wishful thinking rather than prudent assessment. I then focus on the UK’s own constitutional presuppositions. The desire to restore sovereignty to Westminster comes twenty years too late. Devolution to Scotland, Wales, and Northern Ireland has transformed the British constitution. Political power is no longer monopolized by Westminster, but shared with regional parliaments and devolved administrations. If the Conservative government insists on withdrawing the UK from the EU it will, of course, hurt the EU. But if it does so against the wishes of Scotland and Northern Ireland, it will destroy the UK.

(with Roger Masterman) 'The New Constitutional Role of the Judiciary'  LSE Law: Policy Briefing Papers 2/2014

Over the last few decades, the United Kingdom has experienced a profound – if quiet – constitutional transformation. But these developments have hardly been appreciated within broader public debates, which remain rooted in/anchored to notions of parliamentary sovereignty. In this paper, we describe the broad contours of constitutional change in the UK over the last decades. We also ask the question, what can and should courts do when faced with ‘unconstitutional’ legislation? We present the case for the development of a modest range of new constitutional review powers for the courts in the coming years.

‘Unintended Democracy: Parliamentary Reform in the UK’, in Kelly L Grotke and Markus J Prutsch (eds) Constitutionalism, Legitimacy, and Power: Nineteenth-Century Experiences (OUP 2014)

'Skirting supremacy and subordination: the constitutional authority of the United Kingdom Supreme Court' (with Roger Masterman) Public Law (2013) October pp.800-820

Assesses the constitutional authority of the Supreme Court compared with that of the Appellate Committee of the House of Lords and other constitutional or apex courts in Europe. Examines the relationship of the UK courts with Parliament through history, and considers the significance of the physical separation of the Supreme Court from the Palace of Westminster. Discusses the nature and competences of the court, including its constitutional competences.

'The European Union Act 2011: A Failed Statute' LSE Law, Society and Economy Working Paper Series (WPS 3/2013)

If there was one area in which the two coalition parties needed to produce a workable agreement as a matter of priority after the May 2010 election, it was the European Union. The European Union Act (EUA) 2011 builds on a political guarantee in the coalition agreement that there will be no transfers of sovereign powers until the next election (in 2015). That undertaking was intended to pacify the Europhobic wing of the Conservative party that had demanded but failed to get a national referendum on the hated Lisbon Treaty. As a result, the EUA contains all sorts of compromises: it delivers a referendum requirement, but not on the Lisbon Treaty; it affirms that the source of the validity of EU law is a domestic statute, but without mentioning the sovereignty of Parliament; it introduces constitutional safeguards, but without entrenching them against repeal by a future Parliament. Unfortunately, the EUA does not reflect the politics of compromise in a consensus democracy: it reflects dissent between the governing parties and within the Conservative party and, in most respects, is a compromised and failed statute.

‘The European Union Act 2011: A Failed Statute’ (2012) 3(4) Tijdschrift voor Constitutioneel Recht 396-408.

'"We want our identity back" - the revival of national sovereignty in the German Federal Constitutional Court's decision on the Lisbon Treaty.' Public Law, 2010 July pp.530-550

'Countering Anti-constitutional Argument: The Reasons for the European Court of Justice’s Decision in Kadi and Al Barakaat' (2009) 11 Cambridge Yearbook of European Legal Studies 15-52

This contribution examines the recent decision by the European Court of Justice in Kadi and Al Barakaat International Foundation. It is a response to criticism that the ECJ’s judgement, in providing for the review of EC measures implementing UN Security Council resolutions, undermines the authority of public international law. Instead of committing itself to international law and institutions at all cost, the ECJ concerns itself with the constitutional repercussions from national constitutional courts (in the case of failure to protect fundamental rights). Important as the relationship between EC law and international law is, there is a clear sense that the ECJ is responsible to, and will ultimately be held to account by, the courts and constitutions of the Member States of the European Union.

'The Quest for Constitutionalism in Public Law Discourse,' (2009) 29 (3) Oxford Journal of Legal Studies 1-29.

At first sight constitutionalism appears to be a key concept in public law discourse in the United Kingdom. It appears in all the major academic discussions from the rule of law and judicial review to the ‘new constitutional settlement’ and in relation to constitutional culture. And yet attempts to define the scope, meaning and role of constitutionalism remain vague. This article discusses the different fields in which constitutionalism is discussed and the different meanings that are attributed to the concept. It shows that constitutionalism is routinely conflated by public law scholars with other constitutional values and principles, like the rule of law or separation of powers. This article argues that constitutionalism should either be conceived as distinct from those concepts or, failing that, can safely be eliminated from public law discourse. The article concludes by asking whether a nuanced and normative discussion of constitutionalism could have any meaningful application in the United Kingdom constitution.