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.
click here for publisher's site
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.
click here for publisher's site
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.
click here for publisher's site
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.
click here
for publisher's site
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.
click here
for publisher's site
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.
click here
for publisher's site
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.
click here
for publisher's site
'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.
click here for publisher's site
'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.
click here for publisher's site
'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.
click here for publisher's site
'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.
click here for full text via Swetwise [ON
CAMPUS]
click here for full text via Swetwise [OFF CAMPUS]
'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.
click here for publisher's site
'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.
click
here for access via Westlaw [ON CAMPUS]
click
here for access via Westlaw [OFF CAMPUS]
'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.
click here to read the article
'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.
click here for publisher's site
'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.
click here for publisher's site
'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.
click here for publisher's site
'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.
click here
for publisher's site
Martin Loughlin