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) person created by this covenant is called sovereign (be it a king, government, council but Hobbes preferred the Monarch) Law is the command of the sovereign. The sovereign, as a law-giver, cannot be bound by the law. Where law ends, civil liberty begins.

Seems ironic at first sight that such an authoritarian structure stems from natural right and freedom But to Hobbes, this is the only context in which freedom can truly exist. We are the authors of the sovereign as unified rational beings wanting to escape threats of violence and death. The sovereign creates laws. Laws form the constitution of the society. Thus, the legitimacy of the sovereign is acquired. The limitation on the sovereign power is that it cannot kill us. If this happens, we will be back in the state of Nature. Locke, Second Treatise of Government (1689 – after the Glorious Revolution) Individuals are free, equal and rational. Individuals have natural right to acquire property. Same starting point as Hobbes – natural law operates in a state of nature, people would want to leave the natural state. Different from Hobbes: whereas Hobbes identified the driving force as our self-interest leading us to decide in our favour, Locke urges for an authority system to formalise and enforce the rules to protect property as rational beings in touch with the natural law. Optimistic about humans’ rational capabilities – the natural state will fail because it fails to protect property rights – ‘the chief end of men uniting into commonwealths is the preservation of property’ – quit the condition to be free from fears and continual dangers Different assumptions on human nature

‘Property’ = ‘preservation of lives, liberties and estates’ The government is established by covenant of delegation i.e. this does not involve the alienation of natural rights (unlike Hobbes who argued we should abandon our natural rights) Bargaining to get out of the state of Nature (no such sense of desperation to leave the State of Nature...
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