CiNii Books - The methodology of constitutional theory

"The collection of chapters in this volume arises out of a workshop held at the University of Reading in April 2017, funded by a Modern Law Review Seminar Funding Scheme award."--P. [xi]

Includes index

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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 State VI. Conclusion

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The methodology of constitutional theory

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