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.
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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.
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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.
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The Paradox of Constitutionalism,
Oxford: Oxford University Press, 2007 (ed. with Neil Walker)
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.
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The Idea of Public Law, Oxford: Oxford University Press, 2003
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
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
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
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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'Political Jurisprudence', Jus Politicum: Revue de Droit
Politique (July 2016) No.16 Foundations of Public Law
This essay presents an overview of key elements of the discipline of political
jurisprudence. It explains the significance of such basic concepts as politics,
state, constitution to the building of political authority and examines, in
particular, the significance of two different concepts of power: potestas,
the power generated by being-in-common and experienced as ‘power to’, and
potentia, the ability to achieve intended effects, experienced as ‘power
over’. Political jurisprudence, it argues, entails more than the explication of
certain principles of political right. Of its nature, it expresses an endless
tension between different conceptions of right and maintains that reconciliation
is transitory, the result of prudential judgment.
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‘Sumption’s Assumptions’ N Barber, R Ekins & P Yowell (eds),
Lord Sumption and the Limits of the Law (Oxford: Hart, 2016), 27-43
'The Rule of Law: A Theme in Five Variations' (2015) 10
Frontiers of Law in China 437-448
This article unpacks the concept of the rule of law by distinguishing five
distinct meanings of the term. These are: (1) the rule of practical wisdom, (2)
the rule of the law, (3) rule by law, (4) the rule of law as a principle of
constitutionalism, and (5) the rule of law as a power-building technique. It
suggests that unless the particular meaning being used is clarified, discussion
of the concept is likely to generate more heat than light.
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(with Samuel Tschorne) 'Public Law' in Routledge Handbook
of Interpretive Political Science, Mark Bevir, R. A. W. Rhodes (eds.) (2016)
'Burke on law, revolution and constitution / Burke su
diritto, rivoluzione e costituzione' Journal of Constitutional History
/ Giornale di Storia Costituzionale N. 29 (1). pp. 49-60
'A-legality or Jus Politicum? A Critical Appraisal of
Lindahl’s Fault Lines of Globalization' (2014) 16 Etica & Politics/Ethics &
Politics 965-972.
This paper contends that, notwithstanding the impressive philosophical argument Lindahl presents in his book, his essential point does not extend to the plurality of normative orders that operate throughout the social world. Rather, his argument demonstrates precisely what is special about the political domain within which the modern idea of public law is situated. Lindahl’s novel concept of a-legality is therefore best grasped as a reformulation of the modern concept of jus politicum, droit politique, political jurisprudence.
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'Nomos' in Dyzenhaus and Poole (eds.) Law, Liberty
and State:
Oakeshott, Hayek and Schmitt on the Rule of Law (Cambridge University Press,
2015)
'The Constitutional Imagination' (2015) 78 Modern law
Review 1-25
The constitutional imagination refers to the way we have been
able to conceive the relationship between thought, text and action in the
constitution of modern political authority. The lecture seeks to demonstrate how
modern constitutional texts come to be invested with a ‘world-making’ capacity.
The argument is advanced first by explaining how social contract thinkers have
been able to set the parameters of the constitutional imagination (thought),
then by showing that constitutions are agonistic documents and their
interpretative method is determined by a dialectic of ideology and utopia
(text), and finally by examining the degree to which constitutions have been
able to colonise the political domain, thereby converting constitutional
aspiration into political reality (action). It concludes by suggesting that
although we seem to be entering a constitutional age, this is an ambiguous
achievement and whether the power of the constitutional imagination can still be
sustained remains an open question.
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'Politonomy' in J. Meierhenrich and O Simons (eds), The
Oxford Handbook of Carl Schmitt (New York: Oxford University Press,
forthcoming, 2015), ch21.
This chapter situates Schmitt as a jurist and specifically as a scholar occupying a distinctive position within German state theory. Schmitt’s overall objective was to build a theory of the constitution of political authority from the most basic elements of the subject, and in this respect he sought to make a contribution to the discipline of politonomy. A concept first alluded to by Schmitt but one he never developed, politonomy concerns the inquiry into the most basic laws and practices of the political. The chapter examines Schmitt’s ambivalent position in politonomy, which was rooted in his distrust of the scientific significance of general concepts. To the extent that Schmitt acknowledged the existence of a law of the political, this chapter argues that it is found implicitly within his embrace of institutionalism in the 1930s and later in his account of nomos as the basic law of appropriation, division, and production.
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'The Coalition and the Constitution' in A Selden and M Finn (eds)
The Coalition Effect (Cambridge: Cambridge University Press, forthcoming
2015), ch. 2 pp 59-86 (with Cal Viney).
'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.
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'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.
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'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.
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‘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
'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.
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'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.
Michael
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.
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'Reflections on The Idea of Public Law' in Christodoulidis and
Tierney eds, Public Law and Politics (Aldershot: Ashgate, 2008), 47-68
In
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.
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'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.
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'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.
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'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.
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'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.
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'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 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.
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'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.
How
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.
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'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.
The
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.
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'The Demise of Local Government' in V. Bogdanor (ed.), The
British Constitution in the Twentieth Century (Oxford: Oxford
University Press, 2003), 521-556.
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.
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