Why common law constitutionalism is correct (if it is)

Lakin, S. ORCID: https://orcid.org/0000-0003-1447-252X (2022) Why common law constitutionalism is correct (if it is). In: Kyritsis, D. and Lakin, S. ORCID: https://orcid.org/0000-0003-1447-252X (eds.) The Methodology of Constitutional Theory. Bloomsbury Publishing, pp. 131-152. ISBN 9781509933846 doi: 10.5040/9781509933877.ch-005

Abstract/Summary

Lakin argues that the correct account of a constitution depends on an interpretative Judgment. He takes as the focus of his chapter, two leading accounts of the British Constitution: the positivist, orthodox one put forward by Jeffrey Goldsworthy, and the interpretative, common law constitutionalist one propounded by Trevor Allan. To begin with, he explains the sense in which the two accounts represent rival models of the salient moral and empirical facts and features of British constitutional practice. He then turns to the different ways in which theorists have sought to defend their preferred model. The dominant descriptive methods employed by Goldsworthy and other positivists, he argues, suffer from a common defect: they each assume the correctness of something like the orthodox account, rather than independently establish its correctness. The better method, he contends, is an interpretative one, operating at a deeper level of abstraction than Allan's common law constitutionalism. This method engages questions and concerns of political morality plausibly shared by each account: why does a practice bind, and why is a practice one to which people owe their allegiance (if they do). In so doing, it opens the way for important and genuine disagreement about constitutional practices. It also encourages a conciliatory attitude on the part of scholars.

Item Type	Book or Report Section
URI	https://reading-clone.eprints-hosting.org/id/eprint/119018
Identification Number/DOI	10.5040/9781509933877.ch-005
Refereed	Yes
Divisions	Arts, Humanities and Social Science > School of Law
Publisher	Bloomsbury Publishing
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