The moral reading of the British constitution.
Doctoral thesis, UCL (University College London).
This thesis investigates the philosophical assumptions which underpin established theories of the British constitution, paying particular attention to the influence of traditional (and sometimes outdated) theories of legal positivism. I attempt to identify, analyze and challenge these assumptions, exploring how recent developments in legal theory can inform and enrich our approach to British constitutional theory. Drawing, in particular, on the anti-positivist theory of Ronald Dworkin, I contend that an understanding of the British constitution must begin with an understanding of the principle of legality: that is, the principle that government may only exercise coercive force in accordance with standards established in the right way before that exercise. The principle of legality (properly understood as reflecting the value of integrity), I argue, shapes or controls the many other principles that underpin British constitutional practice, principles such as the separation of powers, democracy and individual human rights. Once it is appreciated that each and every fact about British constitutional practice must be justified by arguments of political morality, there is little difference, I argue, between the so-called ‘unwritten’ British constitution and the ‘written’ constitution of, say, the United States. In particular, there is no plausible philosophical basis for ascribing unlimited legislative powers to the Westminster Parliament. The extent of Parliament’s legislative powers (and the extent of the powers of the executive branch of government), I suggest, must depend on how we conceive of the legal principles that justify Parliamentary power, most notably the principle of democracy. Democracy, properly understood, I argue, means that Parliament (or government) has a duty to treat each member of the British community as an equal; or, to state the right which corresponds to that duty, democracy means that individuals have a moral right against government to be treated as an equal.
|Title:||The moral reading of the British constitution|
|Open access status:||An open access version is available from UCL Discovery|
|UCL classification:||UCL > School of Arts and Social Sciences > Faculty of Laws|
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