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Abstract:
What sort of methods are best suited to understanding constitutional doctrines and practices? Should we look to lawyers and legal methods alone, or should we draw upon other disciplines such as history, sociology, political theory, and moral philosophy? Should we study constitutions in isolation or in a comparative context? To what extent must constitutional methods be sensitive to empirical data about the functioning of legal practice? Can ideal theory aid our understanding of real constitutions? This volume brings together constitutional experts from around the world to address these types of questions through topical events and challenges such as Brexit, administrative law reforms, and the increasing polarisations in law, politics, and constitutional scholarship. Importantly, it investigates the ways in which we can ensure that constitutional scholars do not talk past each other despite their persistent - and often fierce - disagreements. In so doing, it aims systematically to re-examine the methodology of constitutional theory.
Table of contents:
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 StateVI. Conclusion
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