Thomas Poole

Thomas Poole

Administrative support: Bradley Barlow
Room: New Academic Building 7.20
Tel. 020-7955-6396  

Thomas Poole studied at University College London, Oxford University and Manchester University. Before coming to LSE in 2006, he taught at Nottingham University. He has held visiting positions at the University of New South Wales (2003-4 & 2005-6), the European University Institute (2007), Melbourne University (2008), the University of Toronto (2008), Princeton University (2008), Université Paris II Panthéon-Assas (2013-14) and Auckland University (2016). Tom works mainly in the field of public law and constitutional theory.

twitter: @DrTomPoole

Research Interests
  • Public law

  • Constitutional theory

  • History of constitutional thought


Reason of State: Law, Prerogative and Empire (Cambridge University Press, July 2015)

This historically embedded treatment of theoretical debates about prerogative and reason of state spans over four centuries of constitutional development. Commencing with the English Civil War and the constitutional theories of Hobbes and the Republicans, it moves through eighteenth-century arguments over jealousy of trade and commercial reason of state to early imperial concerns and the nineteenth-century debate on the legislative empire, to martial law and twentieth-century articulations of the state at the end of empire. It concludes with reflections on the contemporary post-imperial security state. The book synthesises a wealth of theoretical and empirical literature that allows a link to be made between the development of constitutional ideas and global realpolitik. It exposes the relationship between internal and external pressures and designs in the making of the modern constitutional polity and explores the relationship between law, politics and economics in a way that remains rare in constitutional scholarship.

Law, Liberty and State edited by Thomas Poole, David Dyzenhaus (Cambridge University Press, May 2015)

Oakeshott, Hayek and Schmitt are associated with a conservative reaction to the 'progressive' forces of the twentieth century. Each was an acute analyst of the juristic form of the modern state and the relationship of that form to the idea of liberty under a system of public, general law. Hayek had the highest regard for Schmitt's understanding of the rule of law state despite Schmitt's hostility to it, and he owed the distinction he drew in his own work between a purpose-governed form of state and a law-governed form to Oakeshott. However, the three have until now rarely been considered together, something which will be ever more apparent as political theorists, lawyers and theorists of international relations turn to the foundational texts of twentieth-century thought at a time when debate about liberal democratic theory might appear to have run out of steam.

Hobbes and the Law, edited by Thomas Poole, David Dyzenhaus (Cambridge University Press, 2012)

Hobbes's political thought provokes a perennial fascination. It has become particularly prominent in recent years, with the surge of scholarly interest evidenced by a number of monographs in political theory and philosophy. At the same time, there has been a turn in legal scholarship towards political theory in a way that engages recognisably Hobbesian themes, for example the relationship between security and liberty. However, there is surprisingly little engagement with Hobbes's views on legal theory in general and on certain legal topics, despite the fact that Hobbes devoted whole works to legal inquiry and gave law a prominent role in his works focused on politics. This volume seeks to remedy this gap by providing the first collection of specially commissioned essays devoted to Hobbes and the law.

Selected articles
and chapters in books

'Devotion to Legalism: On the Brexit Case' Modern Law Review (2017) 80 (4) pp.696–710

This note examines the UK Supreme Court's judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UK's intention to withdraw from the EU. But the Supreme Court's preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliament's dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.

'The Constitution and Foreign Affairs' (2016) Current Legal Problems  69 (1)  pp.143-174

This article examines a dimension of public law which, despite the increased frequency of litigation in this area, remains relatively under-explored: the constitution and foreign affairs. To aid this task, two models are elaborated. The first, the unilateralist or sovereigntist model, assumes a sharp separation between the internal and the external as domains of peace (constitution), and war (reason of state) respectively. The second model assumes that juridical boundaries are contested and permeable, reading the dynamics of constitutional development in terms of a process of mutual recognition. While the former may have had more historical traction, I argue that the latter now provides the better guide, both analytically and normatively. The theoretical argument is developed in relation to the lived tradition of the British constitution. The article closes with a series of propositions that seek to capture the emerging principles within this complex and fast-moving area of law.

'Rights and Opinion: Or, The Progress of Sentiments' (2016) 10 Law & Ethics of Human Rights pp.453-478

'A Very Successful Action? Keyu and Historical Wrongs at Common Law'  (with Sangeeta Shah) UK Supreme Court Yearbook (2016) 7 Part 1

‘The Law of Emergency and Reason of State’ in Evan Criddle (ed.), Human Rights in Emergencies (Cambridge University Press, 2016)

'Constitutional Reason of State' in David Dyzenhaus and Malcolm Thorburn (eds), The Philosophical Foundations of Constitutional Law (Oxford University Press, 2016)

‘The Mystery of Lawlessness: War, Law, and the Modern State’ in David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State (Cambridge University Press, 2015)

'The Elegiac Tradition: Public Law and Memory' Public Law (2014)  pp.68-84

Examines the extent to which the public law jurist J.A.G. Griffith was influenced by the events and conceptual thought of the 19th century, despite his progressive agenda, and his work may be seen as a series of conversations with his 19th century predecessors. Compares Griffith with the 19th century constitutionalist scholar Walter Bagehot and the philosopher Edmund Burke. Considers how the First World War created a watershed between Griffith and the 19th century and otherwise may have influenced his thought.

‘Rights, Interveners and the Law Lords’  (with Sangeeta Shah and Michael Blackwell) Oxford Journal of Legal Studies  (2014) 34 pp.295-324

This article presents the findings of an empirical investigation into the role of third party interventions in the House of Lords. It examines all the judgments in that court from 1994 to 2009 and tests four hypotheses concerning the impact of the Human Rights Act 1998 upon the incidence of interventions and their influence on the decision-making of the Law Lords.

'Hobbes on Law and Prerogative' in Hobbes and the Law, edited by Thomas Poole, David Dyzenhaus (Cambridge University Press, 2012)

‘Sovereign Indignities: International Law as Public Law’ (2011) 22 European Journal of International Law 351-361

Two analogies lie at the core of Professor Waldron's article. The first is the claim that the standard analogy by which the state in international law is like the individual in domestic law is misleading; the state in international law is more like a government agency in domestic law. The second is that international law is (or is like) a species of public law and should be treated as such by domestic legal systems. I examine both claims, arguing (a) that even if we accept the first analogy it does not get us to the deeper levels of respect and commitment to international law that Waldron argues for, and (b) that the ‘floating normativity’ inherent in the second claim leads Waldron to overlook the specific organizational and structural conditions of international law. This leaves Waldron's position weakest where it should have most to offer: namely, in instances where our commitment to international law on one hand and the rule of law on the other seem to pull in opposite directions.

Thomas Poole, ‘Wissenschaft vom Verwaltungsrecht: Großbritannien (England und Wales)’ in von Bogdandy, Cassese and Huber (Hg.), Handbuch Ius Publicum Europaeum, Band IV: Verwaltungsrecht in Europa: Wisshenschaft (Heidelberg: C.F. Müller, 2011), pp 121-153

The Law Lords and Human Rights' (2011) 74 Modern Law Review 79-105 (with Sangeeta Shah)

This article presents an empirical analysis of the impact of the Human Rights Act on the House of Lords. Drawing on a database of judgments from 1994 to 2007, changes in judgment‐giving behaviour are identified by charting patterns of agreement and dissent across different categories of case. Voting records are also examined in order to identify whether significant differences exist between individual Law Lords in their approach to human rights cases.

'Proportionality in Perspective' (2010) New Zealand Law Review 369-391

'Judicial Review at the Margins: Law, Power, and Prerogative' (2010) 60 University of Toronto Law Journal

This essay on judicial review approaches its subject obliquely. It focuses on a particular site of constitutional abnormality: prerogative power. An analysis of the various iterations, historical and contemporary, between law and prerogative in its specific, rooted setting provides the basis for a more general account of the contemporary nature and role of judicial review, at a time when we appear to be entering a new ‘age of prerogative’ based on the politics of security and fear.

'United Kingdom: The Royal Prerogative' (2010) 8 International Journal of Constitutional Law 146-155

Reflects on the exercise of the royal prerogative under the UK constitution, with reference to the House of Lords decision in R. (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, which considered whether Orders in Council which ended the Chagos Islanders' right of abode on their islands were ultra vires or were immune from judicial review, having been made under prerogative powers. Examines the court's approach to the reviewability of prerogative legislation and whether the prerogative power in question was lawful.

'The Impact of the Human Rights Act on the House of Lords' (2009) Public Law (with Sangeeta Shah) Apr, 347-371

Reports on a survey analysing the impact of the Human Rights Act 1998 on cases heard by the House of Lords between 1994 and 2007. Outlines the background to the research, the methodology adopted and the main findings on whether the House showed a greater willingness after the Act's commencement to grant leave to appeal in cases raising human rights issues, the number of cases in which human rights arguments were advanced, the success rate of such arguments and the human rights questions raised in devolution cases before the Privy Council.

‘The Reformation of English Administrative Law' (2009) 68 Cambridge Law Journal  142

'Constitutional Exceptionalism and the Common Law' (2009) 7 (2) International Journal of Constitutional Law 247

Analyses the constitutional theory identifying the antiterrorist legislation that has been introduced in the wake of the September 11, 2001 attacks in New York as being "exceptional" deviations from constitutional norms, which are unwelcome and arguably illegitimate. Discusses how John Locke's theory of the prerogative illustrates the difficulty of identifying the exceptional in a common law jurisdiction. Evaluates the account of common law constitutionalism in the examinations of emergency powers by Dyzenhaus, Gross and Tushnet.

‘The Devil's Account: Men, Morals, and Constitutional Goods' (2009) 22 Canadian Journal of Law and Jurisprudence  113

‘Courts and Conditions of Uncertainty in “Times of Crisis' (2008) Public Law 234-259.

‘Between the Devil and the Deep Blue Sea: Administrative Law in an Age of Rights’ in Linda Pearson, Carol Harlow and Michael Taggart (eds), Administrative Law in a Changing State (Hart Publishing, Oxford, 2008) pp.15-44

This book of essays celebrates Mark Aronson's contribution to administrative law. As joint author of the leading Australian text on judicial review of administrative action, Aronson's work is well-known to public lawyers throughout the common law world and this is reflected in the list of contributors from the US, Canada, Australia, New Zealand and the UK. The introduction comes from Justice Michael Kirby of the Australian High Court. The essays reflect Aronson's interests in judicial review, non-judicial grievance mechanisms, problems of proof and evidence, and the boundaries of public and private law. Amongst the contributors, Peter Cane, Elizabeth Fisher, and Linda Pearson write on administrative adjudication and decision-making, while Anita Stuhmcke and Peter Leyland deal with other grievance mechanisms and accountability. Robin Creyke and John McMillan, the Commonwealth Ombudsman, write on charters, codes and 'soft law'. There are evaluations of the profound influence of human rights law on judicial review from the UK by Sir Jack Beatson and Thomas Poole and from Canada by David Mullan. Mathew Groves, Enid Campbell, Christos Manztiaris, and Chief Justice James Spigelman address developing themes in judicial review, including purpose and expectations., Carol Harlow and Richard Rawlings, Michael Taggart and Janet McLean follow Aronson's interests into the private side of public law. An American perspective is added by Alfred Aman and Jack Beermann. 

‘The Return of Grand Theory in the Juridical Sciences?’ (2007) 70 Modern Law Review 484-504

‘Tilting at Windmills? Truth and Illusion in “The Political Constitution”’ (2007) 70 Modern Law Review 250-277

This article examines the constitutional scholarship of John Griffith. Centring on Griffith's seminal article ‘The Political Constitution’, the analysis reveals a more complex and pessimistic thinker than the standard image of Benthamite radical would allow. The article then examines the cogency of Griffith's vision – particularly his thesis that rights discourse ‘corrupts’ law and politics – against recent developments. It concludes by reflecting on Griffith's radical debunking style.

'Recent Developments on the “War on Terrorism” in Canada’ (2007) 7 Human Rights Law Review 633-642

‘Of Headscarves and Heresies: the Denbigh High School case and Public Authority Decision-Making under the Human Rights Act’ [2005] Public Law 685-695

Considers the potential impact of the Court of Appeal ruling in R. (on the application of Begum (Shabina)) v Denbigh High School Governors on public authorities' duties under the Human Rights Act 1998 s.6. Outlines the background to the case, which considered whether a school's exclusion of a Muslim pupil for wearing a jilbab infringed the European Convention on Human Rights 1950 Art.9 and the guidance given by Lord Justice Brooke on the decision making process to be followed by the school. Criticises the court's application of the proportionality test when assessing whether a breach of Art.9 was justified and reflects on the dangers of its apparent translation from a strictly judicial context to one involving public authority decision makers as a whole.

‘Harnessing the Power of the Past? Lord Hoffmann and the Belmarsh Detainees Case’ (2005) 32 Journal of Law and Society 534-561

This article examines styles of judicial reasoning under the Human Rights Act. It uses Lord Hoffmann's short speech in the Belmarsh Detainees case as a springboard from which to explore some important developments. The first part of the article examines the way in which some judges are `turning to the local' by using historical examples as a means of countering powerful lines of argument run by the government in defence of its anti-terrorist policies. Later in the article, I turn to investigate the use of strategic decision-making by judges when applying the HRA. I conclude by asking whether the introduction of the HRA might lead to the development of a strange counterpoint between internationalist and nationalist rhetoric in judicial decision-making.

‘Legitimacy, Rights and Judicial Review’ (2005) 25 Oxford Journal of Legal Studies 697-725

This article takes a critical look at classic rights-based theories of the constitution, as exemplified in the UK by common law constitutionalism. Drawing on an analysis of a group of cases decided both before and after the introduction of the Human Rights Act 1998, it is argued that even in cases that involve rights it appears often to be the case that argument focuses on 'intermediate' issues relating to constitutional structure and administrative decency rather than basic or primary issues of justice and morality. Rejecting an interpretation of the judicial review process centred on the need to protect rights, this article advances instead a model of that process grounded on the idea of legitimacy.

‘Questioning Common Law Constitutionalism’ (2005) 25 Legal Studies 142-163

This article takes a critical look at common law constitutionalism, a theory which has received much support in public law circles of late. The first part of the article elaborates the common law constitutionalist position. The second part of the article assesses the cogency of the theory in terms of its ability to accommodate certain paradigmatic features of judicial review. The article concludes with the suggestions that public lawyers, in their forays into theory, might do better to look to the special role that judicial review plays in assessing the legitimacy of governmental action rather than its supposed connection with 'fundamental principles of morality.'

‘What’s God Got to Do With It? Waldron on Equality’ (2004) 31 Journal of Law and Society 387-407

‘Bills of Rights in Australia’ (2004) 4 Oxford University Commonwealth Law Journal 197-212

This article examines Australia’s first Bill of Rights: the Human Rights Act for the Australian Capital Territory (ACT). The sponsors of the Act hope that it will act as a model for future developments elsewhere in Australia. The article considers the background to the Act and assesses the credibility of the provisions it contains for pre- and post-legislative scrutiny. Comparisons are drawn throughout with the UK Human Rights Act 1998, which provided the primary model for the ACT provision.

‘Back to the Future? Unearthing the Theory of Common Law Constitutionalism’ (2003) 23 Oxford Journal of Legal Studies 435-454

This article charts the rise of a new, and increasingly influential, theory of public law: common law constitutionalism. The theory can best be seen as a response to a ‘crisis’ within contemporary public law thought produced by an array of different pressures: Thatcherite reformation of the state; the growing prominence (and potential politicization) of judicial review; constitutionalization of the EU; and trends towards globalization. The core of argument underlying the theory is elucidated by means of an analysis of the work of a number of leading public law scholars. The essence of the theory is the reconfiguration of public law as a species of constitutional politics centred on the common law court. The theory constitutes, it is suggested, an attempt to turn inwards, in the face of change, towards the familiar form of the common law, reinvigorated as a burgeoning site of normativity.

‘Dogmatic Liberalism? T.R.S. Allan and Common Law Constitutionalism’ (2002) 65 Modern Law Review 463-475

Book reviewed in this article:

T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law