The Methodology of Constitutional Theory

Author: Dimitrios Kyritsis; Stuart Lakin
Publisher: Hart Publishing
ISBN: 9781509933846

Published In: February 2022
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509957699

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This book starts from the premise that UK constitutional law currently faces a host of challenges relating to, for instance, devolution, its relationship with processes of European integration, and the impact of the Human Rights Act. These challenges defy its traditionally pragmatic character and call for a systematic re-examination of its methodology. In particular, they bring into sharp relief the need to devise a robust inter-disciplinary approach to constitutional issues. The edited collection brings together constitutional law experts who will discuss how such a methodology can be designed that applies insights from history, sociology, political theory and philosophy to the study of the UK Constitution in a way that can inform legal doctrine.

The Methodology of Constitutional Theory – Introduction

Dimitrios Kyritsis, University of Essex, UK and Stuart Lakin, University of Reading, UK

I. Background

II. The Scope of the Volume

III. The Chapters and Thematic Groupings

SELF-UNDERSTANDINGS

1. The Significance of the Common Understanding in Legal Theory

NW Barber, University of Oxford, UK

I. Adherence to the Common Understanding

II. Paying Attention to the Common Understanding

III. The Limitations of the Common Understanding

IV. Conclusion

2. In Defence of Traditional Methodologies

Jeffrey Goldsworthy, Monash University, The University of Melbourne, and The University of Adelaide, Australia

I. Introduction

II. The Orthodox Understanding

III. Judicial Pragmatism

IV. Confusion between the Common Law and Other Kinds of Law

V. Constitution-making by Judges

VI. Legal Philosophy

VII. Parliamentary Sovereignty Today

3. Constitutional Methodology and Brexit: Adopting a Model-Theoretic Approach

Alison L Young, University of Cambridge, UK

I. Defining Model-Theoretic Approaches

II. What is Distinctive about a Model-Theoretic Approach to Constitutional Theory?

III. Why Adopt a Model-Theoretic Approach to Constitutional Theory?

IV. Brexit and Parliamentary Sovereignty

V. Conclusion

HOW DO FACTS MATTER?

4. Slaying the Misshapen Monster: The Case for Constitutional Heuristics

TT Arvind, University of York, UK and Lindsay Stirton, University of Sussex, UK

I. Introduction 3

II. Facts, Theories and Traditions: Making the Constitutional World

III. A Methodology for Constitutional Theory

IV. Heuristics and the Limits of Rhetoric

V. Conclusion

5. Why Common Law Constitutionalism is Correct (If It Is)

Stuart Lakin, University of Reading, UK

I. Introduction

II. Two Accounts of the British Constitution

III. What Makes GO or CLC Correct?

IV. GO and CLC as Rival Interpretations of British Constitutional Practice

V. Conclusion

6. Methodological Pluralism and Modern Administrative Law

Sarah Nason, Bangor University, UK

I. Subordinating Administrative Law to Constitutional Law

II. New Methods of Administrative Law Theory

III. Challenges and Opportunities of Methodological Pluralism in Administrative Law

MORALITY

7. The Constitution of Legal Authority

David Dyzenhaus, University of Toronto, Canada

I. Hart on the Constitution of Authority

II. Approaching Natural Law? 5

III. The Legal Man vs. the Legal Subject

IV. Acceptance, Legitimacy, and the Social Contract

8. Constitutional Law as Legitimacy-Enhancer

Dimitrios Kyritsis, University of Essex, UK

I. Introduction

II. Moral Force and Settlement

III. Legitimacy vs. Justice

IV. Two Moralised Methodologies for Constitutional Theory

V. Conclusion

9. A Positivist and Political Approach to Public Law

Michael Gordon, University of Liverpool, UK

I. Introduction

II. A Basis for Positivist and Political Public Law

III. The Nature of Positivist and Political Public Law

IV. The Value of a Positivist and Political Approach to Public Law

V. Conclusion

SOCIAL THEORY

10. The Material Study of the Constitutional Order

Marco Goldoni, University of Glasgow, UK

I. The Legal Theory of the Material Study

II. The Political Theory of the Material Study

III. Thematising the Constitutional Order as Legal Organisation

IV. Case Study: Constitutional Change

V. Conclusion

11. The British Constitution as an Improvised Order

David Howarth, University of Cambridge, UK

I. Introduction

II. Spontaneous Order, Improvisation and Design

III. Theoretical Implications

IV. Interaction between Improvisation and Design

V. The Conflictual Side of Improvisation

VI. Assessing Improvisations

VII. Distinguishing Improvisation from Non-improvisation

VIII. Constitutional Improvisations

IX. Good or Bad Improvisations?

X. Improvising Better

XI. Improvisation and Constitutional Theory

COMPARISONS

12. A Proposal for Defining and Classifying Systems of Constitutional Government

Paul Yowell, University of Oxford, UK

I. Introduction

II. On Constitutional Government and its History

III. The Characteristics of Constitutional Government

IV. Types of Constitutional and Non-constitutional Government

V. Conclusion

13. The View from Nowhere in Constitutional Theory: A Methodological Inquiry

Silvia Suteu, University College London, UK

I. Introduction

II. The Comparative Turn in Constitutional Theory

III. Constitutional Theory and Comparative Constitutional Change

IV. Conclusion

ADMINISTRATIVE LAW

14. Common Understandings of Administrative Law

Matthew Lewans, University of Alberta, Canada

I. Introduction

II. The Puzzle of Administrative Law

III. Legality and Constitutional Formalism

IV. Dicey on the Absence of Administrative Law

V. Common Understandings of Administrative Law

VI. Conclusion

15. Methodology in Constitutional Theory: The Case of the Administrative State

Kristen Rundle, University of Melbourne, Australia

I. Introduction

II. Constitutionalising the Administrative State: Delineating the Object of Inquiry

III. Constitutionalising the Administrative State: The 'Status' Intervention

IV. Constitutionalism and the Administrative State: Reflections from Australia

V. Constitutional Theory Revisited? The Provocation of the Administrative State

VI. Conclusion

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