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Constitutional Thoery

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  • May 5, 2014
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  • Course: LL106 - Public Law
  • School: London School of Economics LSE
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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)...
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)
oSocial 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)
oState 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
oIn 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.
oThis 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.
oWe 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.
oThe (artificial) person created by this covenant is called sovereign (be
it a king, government, council but Hobbes preferred the Monarch)
oLaw is the command of the sovereign. The sovereign, as a law-giver,
cannot be bound by the law.
oWhere 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.
oWe 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.
oThe 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)