Geoffrey Marshall
- Published in print:
- 1980
- Published Online:
- March 2012
- ISBN:
- 9780198761211
- eISBN:
- 9780191695148
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198761211.003.0002
- Subject:
- Law, Constitutional and Administrative Law
This chapter focuses on constitutional law and describes the disputes which merged into a more general question about the eligibility of constitutional law to count as positive law. First, it ...
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This chapter focuses on constitutional law and describes the disputes which merged into a more general question about the eligibility of constitutional law to count as positive law. First, it describes John Austin's characterization of constitutional law. Austin held that laws were commands issued by sovereign bodies, and it was for him that constitutional laws which defined the sovereign body could not be positive laws pure and simple. It then discusses Maitland's criticisms of Austin's notion of the English Sovereign. Finally, it describes Dicey's doctrine on constitutional law and its critics. Dicey's thesis was that constitutional law consists only in those rules affecting the structure and powers of government which are enforceable in courts of law. This exclusion of what he described as ‘conventional rules’ has been strongly criticized by a number of writers such as Ivor Jennings and Dr. A. L. Goodhart.Less
This chapter focuses on constitutional law and describes the disputes which merged into a more general question about the eligibility of constitutional law to count as positive law. First, it describes John Austin's characterization of constitutional law. Austin held that laws were commands issued by sovereign bodies, and it was for him that constitutional laws which defined the sovereign body could not be positive laws pure and simple. It then discusses Maitland's criticisms of Austin's notion of the English Sovereign. Finally, it describes Dicey's doctrine on constitutional law and its critics. Dicey's thesis was that constitutional law consists only in those rules affecting the structure and powers of government which are enforceable in courts of law. This exclusion of what he described as ‘conventional rules’ has been strongly criticized by a number of writers such as Ivor Jennings and Dr. A. L. Goodhart.
