The Sovereignty of Law: Freedom, Constitution, and Common Law

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9780199685073: The Sovereignty of Law: Freedom, Constitution, and Common Law

In The Sovereignty of Law, Trevor Allan presents an accessible introduction to his influential common law constitutional theory - an account of the unwritten constitution as a complex articulation of legal and moral principles. The British constitution is conceived as a coherent set of fundamental principles of the rule of law, legislative supremacy, and separation of powers. These principles combine to provide an overarching unity of legality, legitimacy, and democracy, reconciling political authority with individual freedom.

Drawing on the work of Lon Fuller and Ronald Dworkin, Allan emphasizes the normative character of legal interpretation - understanding the implications of statute and precedent by reference to moral ideals of legality and liberty. Allan denies that constitutional law can be reduced to empirical facts about legislative or judicial conduct or opinion. There is no 'rule of recognition' from the lawyer's interpretative viewpoint - only a moral theory of the nature and limits of political authority, which lawyers must construct in order to make sense of legal and constitutional practice. A genuine republicanism, protecting individual independence, requires the safeguards afforded by judicial review, which must ensure that governmental action is consistent with the rule of law; and the rule of law encompasses not merely the formal equality of all before the law, as enacted or declared, but a more fundamental idea of equal citizenship. Allan's interpretative approach is applied to a wide range of contemporary issues of public law; his response to critics and commentators seeks to deepen the argument by exploring the theoretical grounds of these current debates and controversies.

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About the Author:


T.R.S. Allan, Professor of Jurisprudence and Public Law, University of Cambridge, and Fellow of Pembroke College, Cambridge

Trevor Allan has taught public law and legal philosophy at the University of Cambridge since 1985. He is a leading proponent of the approach to public law known as common law constitutionalism, which identifies the foundations of the British and other Commonwealth constitutions with fundamental principles of legality and freedom, underpinning and informing the common law. He is a persistent and incisive critic of approaches to public law rooted in legal positivism, which locate constitutional foundations in the conventions observed (or opinions held) by senior officials. He is the author of Law, Liberty, and Justice (1993) and Constitutional Justice (2001).

Review:

`In his latest book, The Sovereignty of Law . . . Allan takes both his critique of orthodoxy and his own rule of law thesis to a new level of cogency and philosophical rigour. Whether or not one agrees with his arguments, it is a tremendous accomplishment. . . . [T]he defining strength of
Allan's work . . . is his ability to weave together complex debates in legal and political theory with detailed doctrinal analyses of cases, statutes and contemporary constitutional developments. That strategy . . . is central to his methodological and substantive commitments."

--Stuart Lakin, UK Constitutional Law Blog

". . . Allan has here captured the zeitgeist-his is a book capable of rationalising two decades of constitutional development in a fashion likely, in turn, to influence public law's evolution in years to come. Notable in this regard is his continued allegiance to common law constitutionalism
and concomitant insistence that the Human Rights Act 1998 merely augments the values of the common law. As such, the book's methodological prescription applies even more clearly (and more urgently) if that statutory surface is swept away and the common law left to speak for itself."

--Paul Scott, Law Quarterly Review

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