Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.001.0001
- Subject:
- Political Science, Comparative Politics, UK Politics
In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both ...
More
In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both how people actually behave and how they ought to behave. In fact, it fails to do either; it is not a correct description and it has no persuasive force. The book goes on to offer a reasoned alternative. The position that still dominates the field of constitutional law is that of parliamentary sovereignty (or supremacy). According to this view, the supreme lawgiver in the United Kingdom is Parliament. Some writers in this tradition go on to insist that Parliament in turn derives its authority from the people, because the people elect Parliament. An obvious problem with this view is that Parliament, to a lawyer, comprises three houses: monarch, Lords, and Commons. The people elect only one of those three houses. This book aims to show, contrary to the prevailing view, that the United Kingdom exists by virtue of a constitutional contract between two previously independent states. Professor McLean argues that the work of the influential constitutional theorist A. V. Dicey has little to offer those who really want to understand the nature of the constitution. Instead, greater understanding can be gleaned from considering the ‘veto plays’ and ‘credible threats’ available to politicians since 1707. He suggests that the idea the people are sovereign dates back to the seventeenth century (may be fourteenth century in Scotland), but has gone underground in English constitutional writing. He goes on to show that devolution and the United Kingdom's relationship with the rest of Europe have taken the United Kingdom along a constitutionalist road since 1972, and perhaps since 1920. He concludes that no intellectually defensible case can be made for retaining an unelected house of Parliament, an unelected head of state, or an established church. This book will be an essential reading for political scientists, constitutional lawyers, historians, politicians, and the like.Less
In this provocative new study, Iain McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative: that is, to describe both how people actually behave and how they ought to behave. In fact, it fails to do either; it is not a correct description and it has no persuasive force. The book goes on to offer a reasoned alternative. The position that still dominates the field of constitutional law is that of parliamentary sovereignty (or supremacy). According to this view, the supreme lawgiver in the United Kingdom is Parliament. Some writers in this tradition go on to insist that Parliament in turn derives its authority from the people, because the people elect Parliament. An obvious problem with this view is that Parliament, to a lawyer, comprises three houses: monarch, Lords, and Commons. The people elect only one of those three houses. This book aims to show, contrary to the prevailing view, that the United Kingdom exists by virtue of a constitutional contract between two previously independent states. Professor McLean argues that the work of the influential constitutional theorist A. V. Dicey has little to offer those who really want to understand the nature of the constitution. Instead, greater understanding can be gleaned from considering the ‘veto plays’ and ‘credible threats’ available to politicians since 1707. He suggests that the idea the people are sovereign dates back to the seventeenth century (may be fourteenth century in Scotland), but has gone underground in English constitutional writing. He goes on to show that devolution and the United Kingdom's relationship with the rest of Europe have taken the United Kingdom along a constitutionalist road since 1972, and perhaps since 1920. He concludes that no intellectually defensible case can be made for retaining an unelected house of Parliament, an unelected head of state, or an established church. This book will be an essential reading for political scientists, constitutional lawyers, historians, politicians, and the like.
Iain Mclean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0007
- Subject:
- Political Science, Comparative Politics, UK Politics
Dicey's abandonment of parliamentary sovereignty and the rule of law. His partial rediscovery of them 1920.
Dicey's abandonment of parliamentary sovereignty and the rule of law. His partial rediscovery of them 1920.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0002
- Subject:
- Political Science, Comparative Politics, UK Politics
Sir Alan Lascelles states the constitution (except the bits we are not allowed to know about) in an anonymous letter ‘The doctrine of parliamentary supremacy since Blackstone’. Bagehot; Dicey; Low; ...
More
Sir Alan Lascelles states the constitution (except the bits we are not allowed to know about) in an anonymous letter ‘The doctrine of parliamentary supremacy since Blackstone’. Bagehot; Dicey; Low; Amery; Jennings; Laski. The rule of law.Less
Sir Alan Lascelles states the constitution (except the bits we are not allowed to know about) in an anonymous letter ‘The doctrine of parliamentary supremacy since Blackstone’. Bagehot; Dicey; Low; Amery; Jennings; Laski. The rule of law.
Wayne Norman
- Published in print:
- 2006
- Published Online:
- September 2006
- ISBN:
- 9780198293354
- eISBN:
- 9780191604126
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198293356.003.0003
- Subject:
- Political Science, Political Theory
It is not possible for every community that considers itself to be a nation to have a state of its own. This is not even the preferred option for most national minorities themselves. Rather, most ...
More
It is not possible for every community that considers itself to be a nation to have a state of its own. This is not even the preferred option for most national minorities themselves. Rather, most seek autonomy and freedom to carry out nation-building projects within a federal state. This chapter introduces the potential federalist solution to the problems of multinational states. It considers the history of political philosophizing about federalism, particularly whether the neglect and even rejection of federalism by liberal theorists throughout much of the 20th century was justified.Less
It is not possible for every community that considers itself to be a nation to have a state of its own. This is not even the preferred option for most national minorities themselves. Rather, most seek autonomy and freedom to carry out nation-building projects within a federal state. This chapter introduces the potential federalist solution to the problems of multinational states. It considers the history of political philosophizing about federalism, particularly whether the neglect and even rejection of federalism by liberal theorists throughout much of the 20th century was justified.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0001
- Subject:
- Political Science, Comparative Politics, UK Politics
The context of the problem. Doctrine of parliamentary sovereignty defined by A. V. Dicey. But Dicey did not believe in it when he really disapproved of something Parliament had done. The Scottish ...
More
The context of the problem. Doctrine of parliamentary sovereignty defined by A. V. Dicey. But Dicey did not believe in it when he really disapproved of something Parliament had done. The Scottish problem: 1707 was a treaty not a takeover. Public lawyers' and political scientists' approaches are contrasted.Less
The context of the problem. Doctrine of parliamentary sovereignty defined by A. V. Dicey. But Dicey did not believe in it when he really disapproved of something Parliament had done. The Scottish problem: 1707 was a treaty not a takeover. Public lawyers' and political scientists' approaches are contrasted.
Iain Mclean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0015
- Subject:
- Political Science, Comparative Politics, UK Politics
Summary of previous discussion. Can Diceyanism be revived without Dicey? The case for Parliamentary sovereignty—but that must entail an elected Parliament. The case for counter‐majoritarianism. ...
More
Summary of previous discussion. Can Diceyanism be revived without Dicey? The case for Parliamentary sovereignty—but that must entail an elected Parliament. The case for counter‐majoritarianism. Strong entrenchment of EU law. Justified on pragmatic, not democratic, grounds. EU polices supranational public goods and bads, and therefore needs some supranational powers. Weak entrenchment of human rights law: the model for entrenchment of other constitutional laws. What is a constitutional statute?—the list in Thoburn. Discrete and insular minorities. Origin of the phrase in the United States; its applicability in United Kingdom. Comity between courts and parliament. How we the people of the United Republic might ordain to ourselves a constitution.Less
Summary of previous discussion. Can Diceyanism be revived without Dicey? The case for Parliamentary sovereignty—but that must entail an elected Parliament. The case for counter‐majoritarianism. Strong entrenchment of EU law. Justified on pragmatic, not democratic, grounds. EU polices supranational public goods and bads, and therefore needs some supranational powers. Weak entrenchment of human rights law: the model for entrenchment of other constitutional laws. What is a constitutional statute?—the list in Thoburn. Discrete and insular minorities. Origin of the phrase in the United States; its applicability in United Kingdom. Comity between courts and parliament. How we the people of the United Republic might ordain to ourselves a constitution.
Anthony King
- Published in print:
- 2009
- Published Online:
- October 2011
- ISBN:
- 9780199576982
- eISBN:
- 9780191702235
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199576982.003.0002
- Subject:
- Political Science, UK Politics
This chapter provides information on several classical writers who dealt with the meaning of the constitution of Britain including Walter Bagehot, A. V. Dicey, Sidney Low, L. S. Amery, Harold Laski, ...
More
This chapter provides information on several classical writers who dealt with the meaning of the constitution of Britain including Walter Bagehot, A. V. Dicey, Sidney Low, L. S. Amery, Harold Laski, and Ivor Jennings. Bagehot was one of the great journalists of the 19th century who believed that the English were still persuaded of the idea that the political institutions were constituted along mainly strictly Montesquieu-esque lines, yet lay precisely in the reality that the executive and legislative branches were bound with each other. Dicey believed that sovereignty in the UK resided in one place and in one place only called parliament. Low reckoned that the cabinet system had latterly undergone a substantial transformation, while Amery took issue with the idea that the operating styles of the prime ministers were conformed to a single, uniform pattern. Lastly, Laski clearly believed that, despite undoubted loyalty of the officials to the Attlee administration, little had really changed in recent decades, while Jennings took issue with the notion that, just because parliament had these very wide, indeed unlimited, legal powers, it was therefore ‘sovereign’.Less
This chapter provides information on several classical writers who dealt with the meaning of the constitution of Britain including Walter Bagehot, A. V. Dicey, Sidney Low, L. S. Amery, Harold Laski, and Ivor Jennings. Bagehot was one of the great journalists of the 19th century who believed that the English were still persuaded of the idea that the political institutions were constituted along mainly strictly Montesquieu-esque lines, yet lay precisely in the reality that the executive and legislative branches were bound with each other. Dicey believed that sovereignty in the UK resided in one place and in one place only called parliament. Low reckoned that the cabinet system had latterly undergone a substantial transformation, while Amery took issue with the idea that the operating styles of the prime ministers were conformed to a single, uniform pattern. Lastly, Laski clearly believed that, despite undoubted loyalty of the officials to the Attlee administration, little had really changed in recent decades, while Jennings took issue with the notion that, just because parliament had these very wide, indeed unlimited, legal powers, it was therefore ‘sovereign’.
Iain Mclean and Alistair McMillan
- Published in print:
- 2005
- Published Online:
- February 2006
- ISBN:
- 9780199258208
- eISBN:
- 9780191603334
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199258201.003.0001
- Subject:
- Political Science, UK Politics
The UK is not a unitary state because it depends on two constitutional contracts — the Acts of Union of 1707 and 1800. Therefore, UK Unionism is not like, for instance, French Jacobinism. The 1707 ...
More
The UK is not a unitary state because it depends on two constitutional contracts — the Acts of Union of 1707 and 1800. Therefore, UK Unionism is not like, for instance, French Jacobinism. The 1707 Acts are still in force. Although most of Ireland left the UK in 1921, the 1800 Act has profoundly affected UK politics. Northern Ireland is the relic of the 1800 Act. Neither is the UK a federal state. Scotland and Northern Ireland do not have powers comparable to an American or an Australian state. Therefore, UK Unionism is not like Australian anti-federalism. When there have been subordinate parliaments (Northern Ireland 1921-72 and intermittently since 1999; Scotland and Wales since 1999), the supremacy of Westminster has been asserted by statute. There is a severe tension between the Diceyan concept of parliamentary sovereignty. Northern Ireland is a ‘federacy’, i.e., a self-governing unit whose constitution must not be unilaterally altered by the UK government. As England is the overwhelmingly dominant partner in the union state, English scholars, like the English population in general, have often been insensitive to these nuances. It is tempting to see England as simply the colonial oppressor of its three neighbours, getting by force the security or the economic advantage that it could not get by agreement. This picture fits Ireland reasonably well, Wales less well, and Scotland hardly at all. Even Ireland has always contained a substantial proportion of Unionists.Less
The UK is not a unitary state because it depends on two constitutional contracts — the Acts of Union of 1707 and 1800. Therefore, UK Unionism is not like, for instance, French Jacobinism. The 1707 Acts are still in force. Although most of Ireland left the UK in 1921, the 1800 Act has profoundly affected UK politics. Northern Ireland is the relic of the 1800 Act. Neither is the UK a federal state. Scotland and Northern Ireland do not have powers comparable to an American or an Australian state. Therefore, UK Unionism is not like Australian anti-federalism. When there have been subordinate parliaments (Northern Ireland 1921-72 and intermittently since 1999; Scotland and Wales since 1999), the supremacy of Westminster has been asserted by statute. There is a severe tension between the Diceyan concept of parliamentary sovereignty. Northern Ireland is a ‘federacy’, i.e., a self-governing unit whose constitution must not be unilaterally altered by the UK government. As England is the overwhelmingly dominant partner in the union state, English scholars, like the English population in general, have often been insensitive to these nuances. It is tempting to see England as simply the colonial oppressor of its three neighbours, getting by force the security or the economic advantage that it could not get by agreement. This picture fits Ireland reasonably well, Wales less well, and Scotland hardly at all. Even Ireland has always contained a substantial proportion of Unionists.
Iain Mclean and Alistair McMillan
- Published in print:
- 2005
- Published Online:
- February 2006
- ISBN:
- 9780199258208
- eISBN:
- 9780191603334
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199258201.003.0005
- Subject:
- Political Science, UK Politics
This chapter examines the unravelling of the Union between 1886 and 1921. It discusses the continuing link between Union and Empire, the incoherence of Diceyan Unionism, centre-periphery politics, ...
More
This chapter examines the unravelling of the Union between 1886 and 1921. It discusses the continuing link between Union and Empire, the incoherence of Diceyan Unionism, centre-periphery politics, the attempted Unionist coup-d’etat in 1910-14, Bonar Law and Ulster paramilitarism, George V’s threatened vetoes, and primoridal and instrumental Unionism. By 1921, the Union question had resolved into a Northern Ireland question and an imperial question. It left two ragged ends from the 1886 attempt to settle it, namely representation and finance in the outlying parts of the Union.Less
This chapter examines the unravelling of the Union between 1886 and 1921. It discusses the continuing link between Union and Empire, the incoherence of Diceyan Unionism, centre-periphery politics, the attempted Unionist coup-d’etat in 1910-14, Bonar Law and Ulster paramilitarism, George V’s threatened vetoes, and primoridal and instrumental Unionism. By 1921, the Union question had resolved into a Northern Ireland question and an imperial question. It left two ragged ends from the 1886 attempt to settle it, namely representation and finance in the outlying parts of the Union.
D. J. Galligan
- Published in print:
- 1990
- Published Online:
- March 2012
- ISBN:
- 9780198256526
- eISBN:
- 9780191681653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256526.003.0004
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
In the light of the various influences, practical and normative, discussed in the preceding chapter, this chapter first considers whether any guidance can be suggested in the design of decision ...
More
In the light of the various influences, practical and normative, discussed in the preceding chapter, this chapter first considers whether any guidance can be suggested in the design of decision procedures; or, in other words, whether there is any right balance of discretion, of comprehensive planning with an emphasis on rules and standards, and incrementalism, with its emphasis on the particular problem. It then deals with two issues, firstly, with the concept of rights — their relationship to discretion and their place in the public law model; secondly, the relationship between personal liberty and discretionary authority in relation to A. V. Dicey and F. A. Hayek.Less
In the light of the various influences, practical and normative, discussed in the preceding chapter, this chapter first considers whether any guidance can be suggested in the design of decision procedures; or, in other words, whether there is any right balance of discretion, of comprehensive planning with an emphasis on rules and standards, and incrementalism, with its emphasis on the particular problem. It then deals with two issues, firstly, with the concept of rights — their relationship to discretion and their place in the public law model; secondly, the relationship between personal liberty and discretionary authority in relation to A. V. Dicey and F. A. Hayek.
Daniel R. Ernst
- Published in print:
- 2014
- Published Online:
- June 2014
- ISBN:
- 9780199920860
- eISBN:
- 9780199377206
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199920860.003.0003
- Subject:
- Political Science, American Politics
No person has a better claim to being the judicial architect of America's peculiarly legalistic administrative state than Charles Evans Hughes. The proper design of administration occupied him ...
More
No person has a better claim to being the judicial architect of America's peculiarly legalistic administrative state than Charles Evans Hughes. The proper design of administration occupied him throughout his public career as an investigator of corrupt business-government relations, a governor who created the nation's leading public utility commission, an associate justice of the US Supreme Court, and an appellate lawyer. As a justice, he revised A. V. Dicey’s court-centered notion of the rule of law when fashioning doctrines that gave administrators great discretion. By 1920, he had decided that the reform of administrative procedure was the best way to reconcile autonomous bureaucracy with the rule of law. He never completely abandoned the judicial review of findings of fact, however. In the 1920s, as litigation over rate regulation grew oppressively long, pluralist-minded reformers cast him as a conservative apologist of big business and opposed his confirmation as chief justice in 1930.Less
No person has a better claim to being the judicial architect of America's peculiarly legalistic administrative state than Charles Evans Hughes. The proper design of administration occupied him throughout his public career as an investigator of corrupt business-government relations, a governor who created the nation's leading public utility commission, an associate justice of the US Supreme Court, and an appellate lawyer. As a justice, he revised A. V. Dicey’s court-centered notion of the rule of law when fashioning doctrines that gave administrators great discretion. By 1920, he had decided that the reform of administrative procedure was the best way to reconcile autonomous bureaucracy with the rule of law. He never completely abandoned the judicial review of findings of fact, however. In the 1920s, as litigation over rate regulation grew oppressively long, pluralist-minded reformers cast him as a conservative apologist of big business and opposed his confirmation as chief justice in 1930.
V.C. Govindaraj
- Published in print:
- 2019
- Published Online:
- September 2019
- ISBN:
- 9780199495603
- eISBN:
- 9780199097821
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199495603.003.0015
- Subject:
- Law, Private International Law
This chapter examines the ‘vested or acquired rights’ theory of Professor A. V. Dicey in England and Professor J. H. Beale in the United States, which is traceable to Ulrich Huber (1635-94), a Dutch ...
More
This chapter examines the ‘vested or acquired rights’ theory of Professor A. V. Dicey in England and Professor J. H. Beale in the United States, which is traceable to Ulrich Huber (1635-94), a Dutch jurist-cum-judge. Huber’s formulations in respect of the binding force of law in general and conflict of laws in particular is derived from the sovereignty of states which, according to him, is unlimited and absolute. This view is in keeping with Hobbesian theory of sovereignty of states. The chapter aims to impress upon the Indian legal fraternity that it is high time to reorient their attitude and approach to conflict of laws or private international law.Less
This chapter examines the ‘vested or acquired rights’ theory of Professor A. V. Dicey in England and Professor J. H. Beale in the United States, which is traceable to Ulrich Huber (1635-94), a Dutch jurist-cum-judge. Huber’s formulations in respect of the binding force of law in general and conflict of laws in particular is derived from the sovereignty of states which, according to him, is unlimited and absolute. This view is in keeping with Hobbesian theory of sovereignty of states. The chapter aims to impress upon the Indian legal fraternity that it is high time to reorient their attitude and approach to conflict of laws or private international law.
Roxana Banu
- Published in print:
- 2018
- Published Online:
- September 2018
- ISBN:
- 9780198819844
- eISBN:
- 9780191860102
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198819844.003.0003
- Subject:
- Law, Private International Law
This chapter discusses state-centered and individual-centered internationalist perspectives and traces the relational internationalist perspectives introduced in Chapter 2 throughout ...
More
This chapter discusses state-centered and individual-centered internationalist perspectives and traces the relational internationalist perspectives introduced in Chapter 2 throughout nineteenth-century European private international law scholarship. The chapter shows how Freidrich Karl von Savigny’s and Josephus Jitta’s individual-centered premises were misunderstood or ignored. It further outlines the emergence of a particularistic perspective toward the end of the nineteenth-century and the beginning of the twentieth-century. The scholarship of Albert Venn Dicey and John Westlake is introduced to highlight the way in which late nineteenth-century English private international law scholars were reasoning on the relationship between state sovereignty and private vested rights. The chapter finally considers how the rise of positivism impacted the internationalist school of thought in private international law in both its state-centered and individual-centered variations.Less
This chapter discusses state-centered and individual-centered internationalist perspectives and traces the relational internationalist perspectives introduced in Chapter 2 throughout nineteenth-century European private international law scholarship. The chapter shows how Freidrich Karl von Savigny’s and Josephus Jitta’s individual-centered premises were misunderstood or ignored. It further outlines the emergence of a particularistic perspective toward the end of the nineteenth-century and the beginning of the twentieth-century. The scholarship of Albert Venn Dicey and John Westlake is introduced to highlight the way in which late nineteenth-century English private international law scholars were reasoning on the relationship between state sovereignty and private vested rights. The chapter finally considers how the rise of positivism impacted the internationalist school of thought in private international law in both its state-centered and individual-centered variations.
