The Idea of Public Law PDF
Preview The Idea of Public Law
THE IDEA OF PUBLIC LAW THE IDEA OF PUBLICLA W MARTIN LOUGHLIN Professor of Public Law London School of Economics & Political Science OXFORD UNIVERSITY PRESS OXFORD VNIVBJlSITY PUSS Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Bangkok Buenos Aires Cape Town Chennai Dar cs Salaam Delhi Hong Kong Istanbul Karachi Kolkata Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi Sao Paulo Shanghai Taipei Tokyo Toronto Oxford is a registered trade mark of Oxford U nivcrsity Press in the UK and in ccnain other countries Published in the United States by Oxford University Press Inc., New York © M. Loughlin, 2003 The moral rights of the author have been ases ned Database right Oxford University Press (maker) First published 2003 Published in paperback 2004 Crown copyright material is reproduced under Class Licence Number COIPOOOOI48 with the permission of the Controller of HMSO and the Queen's Printer for Scotland All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or uansmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agrcdc with the appropriate rcprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford U nivcrsity Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquircr British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available ISBN 978-0-19-926723-1 (hbk.) ISBN 978-0-19-927472-7 (pbk.) 5 7 9 IO 8 6 Typeset by Hope Services (Abingdon) Ltd. Printed in Great Britain For Chris Preface This book is the product of an extended period of research and reflection on the foun dations of a subject I am employed to profess. For this opportunity I am greatly indebted to two institutions: the Leverhulme Trust, which generously awarded me a Major Research Fellowship enabling me to devote two years {2000-02) entirely to the study; and the London School of Economics & Political Science, which, when appointing me to the chair of public law from September 2000, willingly granted me leave for the purpose of taking up the Leverhulme Fellowship. My main objective has been to uncover the foundations of public law, especially as the subject has evolved in Britain. In carrying through what is largely a historical investigation, I concluded that since much of what passes for received wisdom in the field was unfounded, I needed to develop a clearer account of the nature of the dis cipline than I had previously been able to offer. I tried to resolve this by sketching the conceptual foundations of public law as part of the larger, more historically orien tated, study, but this proved unwieldy. I have therefore effected a partial separation between the conceptual and historical, and in this book present an outline of the conceptual aspects of the subject. This division has not been without its difficulties, not least because of this exercise of theorizing--of moving towards the unconditional engagement of understanding. To move from the practical (what is the time?) to the philosophical (what is time?) is a journey that most of us trained as lawyers are singularly unsuited to travel. Why might we be encouraged to go beyond the practical world of decision and judgment and treat such judgments as contingent verdicts that invite further interrogation? The best answer I can offer is that in doing so we arrive at a more satisfactory account of much of what is merely implicit in our experience of government. And I am there fore mindful of the fact that a large part of that question remains to be answered. At best, this account of the idea of public law can be considered only to be a contingently acceptable formulation. But here I gather reasus rance from Oakeshott's observation that the irony of all theorizing lies in 'its propensity to generate, not an understand ing, but a not-yet-understood'. In addition to the two institutions mentioned above, I have greatly benefited from invitations to talk about many of the issues in the book at the Universities of Aberdeen, Cambridge, Glasgow, Nottingham, Southampton and Victoria (British Columbia); the Queen's University, Kingston, Ontario and the European University Institute in Florence; and at seminars on 'Constitutionalism and Governance in Transition' in Belfast, on 'America and the Enlightenment: Constitutionalism in the 21st Century' in London, and 'Theory and International Law' in Oxford. In relation to these occasions I should like to thank all the participants, and especially John McLaren, Stephen Tierney, James Tully, Mark Walters, and Neil Walker. I must also thank Jean Lee, who did a fine job locating and retrieving texts for me, and the V111 Preface following for reading and commenting on various drafts: Margit Cohn, Neil Duxbury, Elizabeth Frazer, Nicola Lacey, James Penner, Thomas Poole, and Adam Tomkins. Finally, I am again much indebted to Chris Foley for her editorial work in helping to make it all a little more readable. ML Dobcross May2003 Acknowledgements Chapt3e, r4 sa nd5 draown t hfoel lowipnrgev ioupsulbyl isphaepde rs: 'ConstituLatwi:To hneaT lh irOdr deorft heP olitini calN'i choBlaasm foratnhd Peter Leyland (eds), Law in a Multi-layered Constitution (Oxford:H an, 2003), 1-25. 'RepresentatainodCn o nstituThteoiryo'n ailn P auClr aiagn dR ichaRawrldi ngs (eds), Law and.Administration in Europe(OxfoOrxfdo:r Udn iversPi�t.y 2 003), 47-66. 'TeTne netso fS overeiignNn etilyW 'al ker( ed.)So,verei gn#] in Transition (Oxford: Han, 2003), 55-86.
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