Constitutional Thoery

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British constitution: philosophies
Public law studies the relationships between public bodies, authorities (state, government) and individuals. The government itself is subject to the ordinary processes of the law and its principles. Public authorities hold no special status in the legal ordering of society. British constitution is a product of the ordinary law of the land. The position of the state and its officers are determined by general principles of common law. Common law is especially significant since Britain does not have a written constitution. These culminated in distinctive legal characteristics: no hierarchy of law, flexibility but fundamental principles. Theoretical foundations: Hobbes, Locke, Paine. (The Age of Enlightenment, social contract theory, 17th C England, context = wars) Social contract theory: the legitimacy of authority rests on ‘consent’ of those subject to it. Autonomous individuals must exercise their natural freedom to consent and make decisions based on self-interest i.e. desire to preserve themselves. Hobbes, Leviathan (1651 – after the Civil War 1642-1649)

State of nature – bellum omnium contra omnes – ‘the life of man [is] solitary, poor, nasty, brutish and short’- no rule or authority – no culture or industry – no law therefore no injustice, no distinction between mine and yours In the state of nature, our position is at risk because people can steal whatever they want and live in fear of death as there is no common standard of right or a stable basis for ownership. This is a bad place, so people will try to escape from such a place. They will do so by covenant to relinquish their natural rights and submit to the authority of a coercive power. We need a covenant to create a Leviathan. Without this, no right will be transferred and no action will be unjust since everyone will have a right to everything. Coercive power is necessary to ensure mutual promise and confidence in both the authority and its citizens. The (artificial)...
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