The English historical constitution : continuity, change and European effects / J.W.F. Allison.

Format:

Book

Author/Creator:

Allison, J. W. F. (John W. F.)

Language:

English

Subjects (All):

Constitutional law--England.

Constitutional law.

Constitutional history--England.

Constitutional history.

England.

Great Britain--Politics and government.

Great Britain.

Politics and government.

Physical Description:

xii, 275 pages ; 23 cm

Place of Publication:

Cambridge ; New York : Cambridge University Press, 2007.

Summary:

The fundamental legal and institutional changes of recent decades have brought the English constitution into question. Accompanying issues have been the extent to which its traditional character and main features have been changed, lost their former appeal and retained their distinctness in the European Union. These issues are not readily addressed in everyday thinking about a constitution simply conceived as unwritten or in constitutional accounts variously preoccupied with abstract analysis, political accountability or transcendent norms.

The English Historical Constitution addresses these issues by developing a historical constitutional approach and thus elaborating on continuity and change in the constitution's main doctrines and institutions. From an English legal perspective, it offers a complement or corrective to analytical, political and normative approaches by reforming an old conception of the historical constitution and of its history, partly obscured and long neglected through the modern analytical preoccupation with its law as an abstract scheme of rules, principles and practices.

Contents:

2 A historical constitutional approach 7

Dicey's analytical approach 7

A descriptive analytical legacy 9

Dicey's methodological predicament 11

The historical constitution 15

Towards a methodological reformation 24

Aims and method 26

The liberal normativist alternative 29

The political constitution 33

Complementary and competing points of view 39

The historical constitution's relevance 41

3 The Crown: evolution through institutional change and conservation 46

The medieval European matrix 47

The Crown as a corporation sole 50

English constitutional adaptation 54

Later European influences: Maitland and modernisation 58

The impact of Community law 64

Domestic English resources 67

English peculiarities and European influences 69

Sources of rationality and legitimacy 70

4 The separation of powers as a customary practice 74

The French standard 76

Early English advocacy 78

Historic legislation on judicial power and judicial tenure 80

Doctrinal scepticism 83

Doctrinal inconsistency 86

Evolving judicial practice 87

The recent constitutional reforms 94

The English paradox 100

5 Parliamentary sovereignty and the European Community: the economy of the common law 103

Dicey's orthodoxy 105

Rules of manner and form 107

Judicial revolution 110

Principles of legal and political morality 119

The economy of the common law 123

Resilience through change and continuity 126

6 The brief rule of a controlling common law 128

Coke's common law of reason 131

Contrasting interpretations 132

Rex...sub Deo et lege 141

The European and the English in reason and rhetoric 143

A controlling common law and a transcendent Parliament 148

The eclipse of Coke's controlling common law 150

The historical constitutional significance of Coke's common law 156

7 Dicey's progressive and reactionary rule of law 157

The formality of Dicey's three meanings 158

The sway of a sovereign Parliament 161

A constitutional conundrum 164

Progressive whig history 165

English reactions and Continental comparisons 172

Dicey's appeal 184

8 Beyond Dicey 186

Dicey's continuing influence 188

A substantive rule of law 191

Bi-polar sovereignty 216

The Human Rights Act 1998 221

Formation of doctrine in the historical constitution 234

9 Conclusions and implications 237.

Notes:

Includes bibliographical references and index.

ISBN:

9780521878142

0521878144

9780521702362

0521702364

OCLC:

154706345