Martin Loughlin

Martin Loughlin

Email: m.loughlin@lse.ac.uk
Administrative support: Jennifer O'Connell
Room: New Academic Building 7.12
Tel. 020-7849-4642 

Martin Loughlin is Professor of Public Law. He was educated at LSE, the University of Warwick and Harvard Law School and held chairs at the Universities of Glasgow and Manchester before in returning to LSE in 2000. Between 2000 and 2002, he held a Leverhulme Major Research Fellowship, in 2007-08 he was a Fellow of the Wissenschaftskolleg zu Berlin, and in 20012-13 held a Law & Public Affairs Fellowship at Princeton University. He is also a Fellow of the British Academy. Martin has been a Visiting Professor at many law schools including Osgoode Hall, Paris II, Pennsylvania, Renmin University (Beijing), and Toronto.

see also Martin Loughlin's LSE Experts page

Research Interests

Martin is writing a book on constitutional theory.

 
External Activities
  • Martin sits on the Editorial Boards of: The Modern Law Review; Journal of Contemporary Legal Issues; Jus Politicum: Revue de droit politique; Giornale di Storia costituzionale/Journal of Constitutional History; Teoría y Realidad Constitucional; and the Vienna Journal on International Constitutional Law. He is also co-editor of the OUP book series, Oxford Constitutional Theory.

 
Books  

The British Constitution: A Very Short Introduction, Oxford University Press, 2013

The British constitution is regarded as unique among the constitutions of the world. What are the main characteristics of Britain's peculiar constitutional arrangements? How has the British constitution altered in response to the changing nature of its state - from England, to Britain, to the United Kingdom? What impact has the UK's developing relations with the European Union caused?   As a constitution, it is one that has grown organically in response to changes in the economic, political, and social environment, and which is not contained in a single authoritative text.  By considering the nature and authority of the current British constitution, and placing it in the context of others, Loughlin considers how the traditional idea of a constitution came to be retained, what problems have been generated as a result of adapting a traditional approach in a modern political world, looking at what the future prospects for the British constitution are.

Foundations of Public Law, Oxford, Oxford University Press, 2010

Foundations of Public Law offers a distinctive, provocative theory of public law, building on the views first outlined in The Idea of Public Law (OUP, 2003). The theory aims to identify the essential character of public law, explain its particular modes of operation, and specify its unique task.

 

The Twilight of Constitutionalism? Oxford, Oxford University Press, 2010 (ed. with Petra Dobner)

The concepts and values that underpin traditional constitutionalism are increasingly being challenged by political realities that place substantial power beyond the state. Among the few certainties of a global economy is the growing incongruity between the political (the world of things that need to be ordered collectively in order to sustain society) and the state (the major institution of authoritative political decision-making during modern times). The consequences, and possible remedies, of this double disjunction of politics and state and of state and constitution form the centre of an open debate about 'constitutionalism beyond the state'. The essays gathered in this collection explore the range of issues raised by this debate.

The Paradox of Constitutionalism, Oxford: Oxford University Press, 2007 (ed. with Neil Walker)

The Paradox of Constitutionalism - cover

The book sets out to examine some of the key features of what we describe as the paradox of constitutionalism: whether those who have the authority to make a constitution - the 'constituent power' - can do so without effectively surrendering that authority to the institutional sites of power 'constituted' by the constitutional form they enact. In particular, is the constituent power exhausted in the single constitutive act or does it retain a presence, acting as a critical check on the constitutional operating system and/or an alternative source of authority to be invoked in moments of crisis? These questions have been debated both in different national contexts and at the level of constitutional theory, and these debates are acknowledged and developed in the first two sections of the book.

The Idea of Public Law, Oxford: Oxford University Press, 2003

The Idea of Public Law - cover

This book offers an answer to the question: what is public law? It suggests that an adequate explanation can only be given once public law is recognized to be an autonomous discipline, with its own distinctive methods and tasks. Martin Loughlin defends this claim by identifying the conceptual foundations of the public law: governing, politics, representation, sovereignty, constituent power, and rights. By explicating these basic elements of the subject, he seeks not only to lay bare its method but also to present a novel account of the idea of public law.

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Sword and Scales: An Examination of the Relationship between Law and Politics, Oxford: Hart, 2000

Sword and Scales - cover

This work provides a provocative re-assessment of the various tangled relationships between law and politics, and in so doing, examines legal and political thinking on such areas as justice, the state, constitutionalism and rights. It introduces lawyers to certain important themes in some of the key texts of political thought (for example, Plato, Hobbes, Locke and Tocqueville) and introduces political scientists to the legal dimensions of a number of central themes of political studies. The book should be of interest to students and teachers in law and politics.

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Legality and Locality. The Role of Law in Central-Local Government Relations, Oxford: Clarendon Press, 1996

Legality and locality - cover

This book seeks to trace the main dimensions of recent conflicts between central departments of governments and local authorities and to reveal something of their significance. It does so by focusing on the role of law in shaping the central-local government relations which is neglected in many contemporary studies and yet is of vital importance in identifying the character of that relationship. Precisely why they should be so is not self-evident. The main objective of this introduction therefore is to highlight the importance of this dimension to the study of central-local relations and then to explain the way in which the key themes of the study are to be addressed. One highly significant aspect of the study is the identification of a process of juridfication which is only gradually becoming clear. This has not only been a major undertaking, it has also been a highly complex, ambiguous, confusing, and frustrating activity. This has caused problems for government and for the judiciary and not surprisingly there have been expressions of discomfort on all sides. This book helps to explain where the process may have gone wrong and why ultimately it may be an objective which cannot be realised. Ultimately what the book seeks to demonstrate is that the issues raised by the government of central-local relations transcend the institution of local government and are directly linked to our system of parliamentary democracy. Furthermore the author argues that the system of central-local government relations has evolved in such a way that it reveals a great deal about our tradition of public law. An examination of these issues through an explication of the themes of legality and locality therefore requires the reader to address basic questions about the nature of contemporary British government.

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Public Law and Political Theory, Oxford: Clarendon Press, 1992

Public Law and Political Theory - cover

The study of public law in the UK has been hampered for many years by an inadequate appreciation among scholars and students of the importance of understanding the different political theories which underpin different models of public law. This short and highly readable work offers students a straightforward introduction to the relationship between public law and political theory and helps them to comprehend the rich literature on both subjects.

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Selected articles
and chapters in books
 

'Constitutional pluralism: An oxymoron?' Global Constitutionalism (2014) 3 (1) pp.9-30

This article examines the origins of the concept of constitutional pluralism that has emerged in the last decade and it critically assesses the claims of its advocates. It argues that the claims made on behalf of the concept cannot be sustained and seeks to show that constitutional pluralism is an oxymoronic concept.

'The concept of constituent power' European Journal of Political Theory (2014) 13 (2) pp.218-237

This article examines the meaning and significance of the concept of constituent power in constitutional thought by showing how it acts as a boundary concept with respect to three types of legal thought: normativism, decisionism and relationalism. The concept can be fully appreciated, it suggests, only by adopting a relationalist method. This
relationalist method permits us to deal with the paradoxical aspects of constitutional founding creatively and to grasp how constituent power, as the generative aspect of the political power relationship, works not only at founding moments but also within the dynamics of constitutional development. Relationalism realizes this ambition by exposing the tension between unity and hierarchy in constitutional foundation and the tension between the people-as-one and the people-as-the governed in the course of constitutional development. It contends, contrary to normativist claims, that constituent power remains a central concept of constitutional thought.

'Modernism in British public law, 1919-79' Public Law (2014) pp.56-67

Discusses the school of scholarship on public law issues based at the London School of Economics that arose after the end of the First World War and continued into the 1970s. Considers how it was influenced by the wider intellectual and artistic movement of Modernism, and outlines the characteristics of this "modernist" public law jurisprudence. Notes the factors that brought an end to the movement.

‘The Political Jurisprudence of Thomas Hobbes’ in D Dyzenhaus & T Poole (eds), Hobbes and the Law (Cambridge: Cambridge University Press, 2012), 5-21.

‘The Nature of Public Law’ in C MacAmlaigh, C Michelon & N Walker (eds), After Public Law (Oxford: Oxford University Press, 2013), 11-24

‘Why Sovereignty?’ in R Rawlings, P Leyland & A Young (eds), Sovereignty and Law: Domestic, Regional & Global Perspectives (Oxford: Oxford University Press, 2013)

'John Griffith: An Appreciation' Public Law (2010) Oct, 643-654

Presents an appreciation of John Griffith, founding editor of Public Law, who died aged 91 on May 8, 2010. Reviews his life and the major scholarly contribution he made to public law.

'In Defence of Staatslehre' Der Staat (Berlin : Duncker und Humblot) 48 (1) pp. 1-28 (2009)

This paper seeks to make a contribution to contemporary debates on multi-level government, transnational constitutionalism, and the emergence of international constitutional ordering. It does so by arguing, contrary to many of the proponents of these theories, that it is mistaken to assume that the concepts of state theory can be easily jettisoned or somehow transcended. In this paper, the key concepts of sovereignty, state and constitution are reworked, and an account of the modern concept of public law provided. This account, it is suggested, provides a frame through which the errors and limitations of proponents of multi-level constitutionalism can be assessed, and the critical issues that such transnational developments raise more accurately identified.

'Why the History of English Administrative Law is not Written' in D. Dyzenhaus, G. Huscroft & M. Hunt (eds), A Simple Common Lawyer: Essays in honour of Michael Taggart (Oxford: Hart, 2009), 151-177.

A Simple Common LawyerMichael Taggart was the Alexander Turner Professor of Law in the University of Auckland, New Zealand until his retirement in 2008. He has worked extensively on public law, in particular administrative law, privatisation and the public/private law divide as well as on legal history. He has visited and taught at the Universities of Melbourne, New South Wales, Toronto, Cambridge, Paris II, Victoria at Wellington, Saskatchewan, Western Ontario, Queen’s University at Kingston and Osgoode Hall Law School. This book of essays, dedicated to him by a group of his friends including academic colleagues, practitioners and judges, marks his enormous contribution to the common law.

'Reflections on The Idea of Public Law' in Christodoulidis and Tierney eds, Public Law and Politics (Aldershot: Ashgate, 2008), 47-68

Public Law and Politics - coverIn a critical engagement with the function of public law and with constitutionalism in its political dimensions, this volume brings together the reflections of three leading constitutionalists: Martin Loughlin, James Tully and Frank Michelman. Comprising three critical commentaries on each, it addresses the multiple ways in which public law is implicated in the logic of rule. This operates on the one hand in maintaining and underwriting relative patterns of power and weakness through political structures and processes. On the other hand, public law is considered to contain the potential to redress these patterns through the use of constitutional authority, social and economic as well as civil and political rights, redistribution of political power, the expansion of territorial governance, and moves to supra-state levels of authority. The book reproduces, in a succinct and organized way, the insights into both the limitations and the potentialities of public law within its political setting.

'Audit, Regulation and Constitutional Modernization' in M. Faure & F. Stephen (eds) Essays in the law and economics of regulation in honour of Anthony Ogus (Antwerp: Intersentia, 2008), 21-36.

The Constitutional Thought of the Levellers (2007) Current Legal Problems (60)

'Constituent Power Subverted: From English Constitutional Argument to British Constitutional Discourse' in M. Loughlin & N. Walker eds. The Paradox of Constitutionalism: Constituent Power and Constitutional Form Oxford: Oxford University Press, 2007, 27-48.

Grundlagen und Grundzüge staatlichen Verfassungsrechts: Großbritannien A. von Bogdandy, P. Cruz Villalón & P.M. Huber (eds), Handbuch des Öffentlichen Rechts in Europa: Ius Publicum Europaeum, vol.1 (Heidelberg: C.F. Müller Verlag, 2007), ch.4, 217-272.

'Investment Treaty Arbitration as a Species of Global Administrative Law' (with Gus Van Harten), (2006) 17 (1) European Journal of International Law

The article outlines a simple thesis: that international investment arbitration - pursuant to regional and bilateral investment treaties - offers the clearest example of global administrative law, strictly construed, yet to have emerged. We present this thesis by explicating four key features of investment treaties: they permit investor claims against the state without exhausting local remedies; they allow claims for damages; they allow investors to directly seek enforcement of awards before domestic courts; and they facilitate forum-shopping. Our argument is that, owing to this unique conjunction of features, the regulatory conduct of states is, to an unusual extent, subject to control through compulsory international adjudication. Having highlighted these features, we then claim that investment arbitration is best analogized to domestic administrative law rather than to international commercial arbitration, especially since investment arbitration engages disputes arising from the exercise of public authority by the state as opposed to private acts of the state. Further, we claim that the linkages between investment arbitration and domestic legal systems are more direct and more closely integrated than other forms of international adjudication in the public sphere. For these reasons, we argue that the emerging regime of investment arbitration is to be understood as constituting an important and powerful manifestation of global administrative law.

'The Positivization of Natural Rights' in G. MacDowell and J. O'Neill (eds) America and the Enlightenment: Constitutionalism in the 21st Century (London: Palgrave, 2006, 57-80.

This book shows in detail the Enlightenment origin of the US Constitution. It provides vivid analysis of how the Enlightenment's basic ideas were reformulated in the context of America.

'Towards a Republican Revival?' (2006) 26 Oxford Journal of Legal Studies 2006 425-437

'Administrative Law Today: Culture, Ideas, Institutions, Processes, Values' Special issue, Univ. of Toronto LJ (2005), 000-000; co-ed. with H. Arthurs, D. Dyzenhaus & M. Taggart.

'Theory and Values in Public Law: An Interpretation', 2005 Public Law 46-64

Discusses the arguments presented by Peter Cane in his paper, Theory and Values in Public Law, noting his defence of legal positivism. Considers the nature of public law through the concepts of functionalist legal thought, legal positivism and rationalism, the basic values in public law and examines Cane's argument that lawyers practising in this field should focus on values rather than theory when addressing central issues.

'The Functionalist Style in Public Law' (2005) 55 University of Toronto Law Journal 361-403.

'Constitutional Theory: A 25th Anniversary Essay' (2005) 25 Oxford Journal of Legal Studies 183-202

'The Constitution of Europe: the new Kulturkampf?' 2004 European Law Rev. 557-569; reprinted in Vol.7 no.2 German Law J. (Feb. 2006)

Presents a review article of the book Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and its Legal Traditions edited by Christian Joerges and Navraj Singh Ghaleigh, Hart Publishing, 2003.

'Sir Ivor Jennings and the Development of Public Law' Special Articles Issue, Modern Law Review, (2004) vol.67, no.5, 715-786.

'Ten Tenets of Sovereignty' in N. Walker (ed.), Sovereignty in Transition (Oxford: Hart, 2003), 55-86.

Sovereignty in Transition - coverSovereignty in Transition brings together a group of leading scholars from law and cognate disciplines to assess contemporary developments in the framework of ideas and the variety of institutional forms associated with the concept of sovereignty. Sovereignty has been described as the main organising concept of the international society of states - one which is traditionally central to the discipline and practice of both constitutional law and of international law. The volume asks to what extent,and with what implications, this centrality is challenged by contemporary developments that shift authority away from the state to new sub-state, supra-state and non-state forms. A particular focus of attention is the European Union, and the relationship between the sovereignty traditions of various member states on the one hand and the new claims to authority made on behalf of the European Union itself on the other are examined. The collection also includes contributions from international law, legal philosophy, legal history, political theory, political science, international relations and theology that seek to examine the state of the sovereignty debate in these disciplines in ways that throw light on the focal constitutional debate in the European Union.

'Constitutional Law: The Third Order of the Political' in N. Bamforth and P. Leyland (eds),  Public Law in a Multi-layered Constitution (Oxford: Hart, 2003), 27-51.

Public Law in a Multi-layered Constitution - coverHow is the distribution of power between the different levels of the contemporary constitution to be policed? What is the emerging contribution of the courts in regard to EC law,the Human Rights Act 1998 and devolution? What roles should be played by the legislative and judicial bodies at each level? Who should have access to the courts in public law disputes, and on what grounds should the courts regulate the exercise of public power? Can a coherent distinction be maintained between public and private law? These essays by leading public law scholars explore the allocation and regulation of public power in the United Kingdom.

'Representation and Constitutional Theory' in P.P. Craig and R.W. Rawlings (eds), Law and Administration in Europe: Essays in Honour of Carol Harlow (Oxford: Oxford University Press, 2003), 47-66.

Law and Administration in Europe - coverThe contributions to this volume address central issues in public law. There are chapters dealing with the general theoretical foundations of public law, including the relationship of theory and values, and discussion of the central idea of representation. The nature of the public-private divide continues to be of importance as a result of changes in the nature of government, and as a consequence of the passage of the Human Rights Act 1998 (HRA). Closely related to this is the contractualisation of government. The relationship between the courts, Parliament, and the executive has always been a central concern for public lawyers. It has been brought to the fore by the passage of the HRA, leading to discussions about the extent to which the courts should show deference to executive and legislative choices when engaging in judicial review. This vexed issue is especially apparent when it comes to deciding how Parliament, the executive, and the courts should treat 'non-citizens' or those who might threaten the security of the state. It is of course impossible to discuss public law without considering European Union law. There is discussion of core issues relating to the legitimacy of the EU, and its constitutional foundations. The role of courts in the process of integration is analysed, and the desirability of judicial review over rule-making is considered. The relationship between public and private modes of enforcing EU law is reviewed. In addition, there is a discussion of the way in which different levels of government inter-relate, viewed through the lens of devolution in the UK.

'The Demise of Local Government' in V. Bogdanor (ed.), The British Constitution in the Twentieth Century (Oxford: Oxford University Press, 2003), 521-556. 

The British Constitution - cover

This is the first scholarly survey of the British constitution in the twentieth century. Indeed, it fills a very real gap in the history of Britain during the last hundred years. The book is a product of interdisciplinary collaboration by a distinguished group of constitutional lawyers, historians and political scientists, and draws where possible on primary sources. Its evaluation of the recent constitutional reforms will be of particular interest. This major interpretation of the constitution will remain authoritative for many years.

 

Reports / discussion papers

Citizen Redress: What People Can Do if Things Go Wrong in the Public Services, P. Dunleavy, H. Margetts, M. Loughlin, S. Bastow, J. Tinkler, O. Pearce and P. Bartholomeou London: The Stationery Office, 9 March 2005, HC 21 Session 2004-5. National Audit Office Value for Money Study, 99 pages.