Suchergebnisse

The Gina Miller judgment of the United Kingdom Supreme Court will be famous for its protection of the rule of law against an overreaching executive. But it should also be remembered for affirming the systematic nature of the British unwritten constitution. The Supreme Court rejected the older theory of the constitution, on which some of the government's submissions relied, according to which the British constitution is based on the political fact of parliamentary sovereignty (or an equivalent 'rule of recognition') and is for that reason different from that of all other states. This was the view outlined by A. V. Dicey and endorsed by the British legal community for almost a century. The Supreme Court majority (and it is possible that the minority does too) rejected Dicey's constructions and outlined a different theory of the constitution, widely described as the 'common law' theory. For this view, the UK's constitution is higher law made by the conscious decisions of a legislature to create principles of fundamental significance. Joining the EU was a constitutional change brought about by parliament in this way. For this reason, withdrawal from the EU must also be a decision of the legislature by way of an act of parliament. The Supreme Court considers the unwritten constitution to be a system of principles whose origins lie in the legal transformation of the United Kingdom three centuries ago by way of the Bill of Rights 1688, the Act of Union 1707 and other constitutional statutes that created the higher law of the constitution.

Is sovereignty relevant to modern government? This is a question of great theoretical interest, but it is now also of great practical interest. The current debates on the future of the European Union after the British referendum have touched on issues of sovereignty. Many people in the United Kingdom, for example, are worried about what they perceive to be an incursion to sovereignty by European institutions and believe that the withdrawal from the EU will restore sovereignty. This is what Prime Minister May said at a speech to the Conservative Party Conference in September 2016. She promised that leaving the EU will make the United Kingdom once again a fully 'sovereign' state. Does it make sense to speak of sovereignty in this way? Or is the ideal of absolute self-government a mirage? Can the idea of sovereignty carry the political burden placed upon it?

The theoretical debate on pluralism in law has only indirectly overlapped with the debate on global justice. It has often seemed that the former appears as a merely institutional concern of experts in law, whereas the second as a moral preoccupation for philosophers, economists and activists. In my view the two issues are closely related. They both turn on a view of the legitimacy of international institutions. It is wrong for philosophers to ignore institutions of law and it is equally wrong for lawyers to ignore global justice. In order to see this we will need to set aside the artificial distinction that is often drawn between legal and political obligation. This is the epicentre of the 'positivist' theory of law, which is currently popular among legal philosophers. Legal positivism is an attractive theory because it simplifies law and legal reasoning. It is nevertheless misleading because it fails to capture both our basic common sense assumptions about law and the content of technical legal doctrine. Under the legal positivist dogma legal obligations and rights become inscrutable. They come to mysteriously occupy a space occupying both the world of fact and the world of value. Legal positivism is incoherent because law is another area of practical reason, a series of arguments that run parallel to morality and ethics. In my own earlier work I offered a theory of law as practical reason, which is constructivist in method and egalitarian in inspiration, based on the work of Kant and Rawls. I believe that the same theory can illuminate international institutions. In this essay I argue that once we understand the law as a body of rules, practices and institutions with moral standing, the question of pluralism and the question of global justice are seen as two sides of the same coin. Lawyers and philosophers have a common task, to understand and interpret the moral nature of the division of the world into states.

The withdrawal of the UK from the EU (or 'Brexit') as a result of the referendum of June 23 is certain to have profound implications for all aspects of the law of the United Kingdom. As soon as the result became known, legal commentators rushed to offer some kind of guidance. Surprising as it may seem, the pre-referendum debate focused mostly on what the EU is and does. There was very little debate on what the post-EU options would look like. As soon as the result was known, a gap in public awareness on what happens next was immediately evident. A group of academics from the Law Faculty at the University of Oxford met a few days after the referendum to discuss some of the potential legal effects. We decided to publish some of our preliminary thoughts as soon as possible in various blog posts in order to contribute, if we could, to the public debate. We also decided collect these in a single paper that would become available online on SSRN. The result is a collective briefing note, edited by Pavlos Eleftheriadis, on various legal aspects of withdrawal from the European Union.