Medieval Murder Maps: A Resource for the Legal Historian

Medieval Murder Maps is a digital resource that allows researchers and others interested in the period to check out the history of violence and the legal system during the English medieval period. It covers the cities of London, York, and Oxford. Follow Medieval Murder Maps on X (formerly Twitter) at @medimurdermaps and Bluesky at @medimurdermaps.bsky.social.

Read more about Medieval Murder Maps here in an article from Atlas Obscura, which discusses how the maps 

helped solve a centuries old cold case.

Shusterman on England's Standing Army Controversy (1697-99) and the Origins of the Second Amendment

Noah Shusterman, The Chinese University of Hong Kong, has published England’s Standing Army Controversy (1697-99) and the Origins of the Second Amendment. Here is the abstract.

This article explores the writings of England's Standing Army Controversy at the end of the seventeenth century, and the links between those writings and the debates over military policy during the founding era that would eventually lead to both the Constitution’s militia clause and the Second Amendment. Staring in 1697, a small group of British authors turned what had been a long-standing but undertheorized distrust of professional armies into an elaborate theory in favor of citizens’ militias. These authors argued that standing armies were inconsistent with a free society; that militias were superior fighting forces; and that maintaining a professional army would inevitably result in the army's leaders becoming despots. To prove their arguments, the authors used a combination of historical examples and theoretical discussions, drawing on Ancient Rome, Medieval Europe, and their understandings of what would or would not motivate soldiers. These writings became relevant to colonists in North America once the British began stationing troops around Boston during the buildup to the American Revolution. The ideas of the Standing Army Controversy provided colonists with a framework and vocabulary that linked Britain's action to those of other tyrannies, because of the use of professional soldiers against a civilian population. As states began issuing their own constitutions in 1776, several included language that grew out of the Standing Army Controversy, including the claim that "standing armies, in times of peace, are dangerous to liberty." These fears of standing armies, and the belief in citizen-soldiers rather than professional soldiers, remained the basis for the Second Amendment and for the broader debates it grew out of. The claim that a well-regulated militia is necessary for the security of a free state grew out of the writings of the Standing Army Controversy.

Download the article from SSRN at the link.

Gardiner on The Meaning of "Going Armed" in the 1328 English Statute of Northampton

Richard Gardiner, Government of the Commonwealth of Virginia, Fairfax County Circuit Court, has published The Meaning of 'Going Armed' in the 1328 English Statute of Northampton. Here is the abstract.

Virtually all writers on the subject of the right to bear arms, both pro and con, simply assume, without any evidence, that the term “going armed” in the 1328 English Statute of Northampton meant carrying weapons. A review of the royal decrees and statutes contemporaneously issued and enacted demonstrates, however, that “going armed” did not equate to carrying weapons and certainly did not refer to firearms -- rather, “going armed” was a medieval term of art which referred to wearing body-protecting armour.

Download the article from SSRN at the link.

Smith on The Mid-Victorian Reform of Britain's Company Laws and the Moral Economy of Fair Competition Enterprise & Society @Laurier

David Chan Smith, Wilfred Laurier University, has published The Mid-Victorian Reform of Britain’s Company Laws and the Moral Economy of Fair Competition Enterprise & Society . Here is the abstract. 

This paper reconstructs the history of the reform of Britain’s company laws during the 1850s and makes three major arguments. First, the Law Amendment Society was the driving force for reform and organized the campaign for change. Second, the advancement of working-class interests and ideas of fairness were central to the conceptualization of these reforms and the course of their advocacy. Company law reform was broadly conceived to include the revision of the law of partnership, corporations, and cooperatives to create a level playing field in which smaller entrepreneurs could compete against established capitalists. Finally, central to this campaign was the institutional logic of “fair competition.” Socialists and liberals both used this logic, demonstrating how moral ideas can shape organizational change. 

Download the article from SSRN at the link.

ICYMI: Seabourne on Qualifying For Tenancy By the Curtesy of England in the Reign of Edward I @gcseabourne

ICYMI:

Gwen Seabourne, "It Is Necessary That the Issue Be Heard To Cry Or Squall Within The Four [Walls]": Qualifying For Tenancy By the Curtesy of England in the Reign of Edward I, 40 Journal of Legal History 44-68 (2019).

This article considers the test used to determine the presence or absence of life in newborn babies, in relation to a widower’s entitlement to remain in land brought to the marriage by his wife, as tenant by the curtesy of England. To qualify for curtesy, a widower needed to have produced a live and legitimate child, but, since even a short period of life was sufficient, there might be disputes as to whether a child which was now dead had ever been alive. The common law therefore had to develop a way of settling this difficult matter of confirming or denying the presence of life. Several thirteenth-century sources show an emphasis on a sound as an indicator of life. This article considers the use of a sound criterion in this area, arguing that thinking and practice surrounding the appropriate test were more complex, less settled, and more interesting than has been represented in somewhat perfunctory accounts in the work of later lawyers and legal historians. This is significant for the understanding of this area of medieval law, but also has broader implications within legal history and historiography, and for scholars from other fields such as medieval social and medical history.

Roberts on The Evolution of Repressive Legality in the Nineteenth Century British Empire

Christopher M. Roberts, The Chinese University of Hong Kong Faculty of Law, is publishing From the State of Emergency to the Rule of Law: The Evolution of Repressive Legality in the Nineteenth Century British Empire in volume 20 of the Chicago Journal of International Law (2019). Here is the abstract.

Why are contemporary laws and techniques that state authorities use to crack down on political dissent so similar across countries? This Article argues that at least part of the answer may be found by turning to colonial history. The Article has two Parts. In the first Part, the Article explores the manner in which, over the course of the nineteenth century, the British deployed various different legal and institutional approaches in response to an Irish polity that consistently refused to submit to British authority. In the second Part, the Article examines the manner in which the approaches developed in Ireland were exported to other parts of the empire, in particular to India, South Africa, and Nigeria, over the course of the late nineteenth and early twentieth centuries. Along the way, the Article considers the big picture significance of such developments relative to the nature of the rule of law. While, over time, the deployment of increasingly legalized and formalized approaches may have played a positive role insofar as they served to soften and displace the potential for more direct violence, enabled by declarations of martial law, such developments came at the cost of the incorporation of much of the repressive approach employed in contexts of emergency rule into everyday legality. Far from conflicting with the rule of law, this development represented the form in which the expansion of the rule of law primarily occurred — serving to entrench and legitimize the repressive practices in question.

Download the article from SSRN at the link.

Coyle, Musacchio, and Turner on Law and Finance in Britain c. 1900 @MusacchioAldo @ProfJohnTurner @QUCEHBelfast

Christopher Coyle, Queen's University Belfast, Queen's Management School, Aldo Musacchio, Brandeis University, International Business School, and John D. Turner, Queen's University Belfast, Queen's Management School, have published Law and Finance in Britain c.1900 as QMS Research Paper 2019/11.

In this paper, using new estimates of the size of the UK’s capital market, we examine financial development and investor protection laws in Britain c.1900 to test the influential law and finance hypothesis. Our evidence suggests that there was not a close correlation between financial development and investor protection laws c.1900 and that the size of the UK’s share market is a puzzle given the paucity of statutory investor protection. To illustrate that Britain was not unique in its approach to investor protection in this era, we examine investor protection laws across legal families c.1900.

Download the article from SSRN at the link.

New From Cambridge University Press: Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England @LizPappKamali @cambUP_History

Now available: Elizabeth Papp Kamali, Harvard Law School, is publishing Felony and the Guilty Mind in Medieval England (Cambridge University Press) in September 2019). Here from the publisher's website is a description of the book's contents.

This book explores the role of mens rea, broadly defined as a factor in jury assessments of guilt and innocence from the early thirteenth through the fourteenth century - the first two centuries of the English criminal trial jury. Drawing upon evidence from the plea rolls, but also relying heavily upon non-legal textual sources such as popular literature and guides for confessors, Elizabeth Papp Kamali argues that issues of mind were central to jurors' determinations of whether a particular defendant should be convicted, pardoned, or acquitted outright. Demonstrating that the word 'felony' itself connoted a guilty state of mind, she explores the interplay between social conceptions of guilt and innocence and jury behavior. Furthermore, she reveals a medieval understanding of felony that involved, in its paradigmatic form, three essential elements: an act that was reasoned, was willed in a way not constrained by necessity, and was evil or wicked in its essence.

Cavanagh on Metaphorical Assessments of Royal Power in Transitional Periods of Monarchy @edward_cavanagh

Edward Cavanagh, University of Cambridge, has published Flowers of the Crown in English Legal Thought: Metaphorical Assessments of Royal Power in Transitional Periods of Monarchy at 6 Royal Studies Journal 38 (2019). Here is the abstract.

This article connects legal history with cultural and intellectual approaches to the history of late medieval England by focusing on the expression, ‘flowers of the crown.’ Believed to have originated in the early Stuart period, this article locates its origins much earlier. After the Angevin kings showed a liking for floriated crowns, a number of poets, clerics, and common lawyers worked flowers into their appraisals of monarchy throughout the fifteenth century. Up to the Stuarts, this metaphor was sometimes helpful for reminding grantees that prerogative donations and delegations, like flowers, cannot be guaranteed to last forever, and indeed eventually die once plucked from their source. This is a finding that prompts consideration of the circumstances that have compelled jurists and politicians to invoke metaphors in their assessments of royal power more generally. In turn, new insights are generated about the crown in modern English thought.

The full text is not available for download from SSRN.

Craig on English Adrministrative Law History

Paul P. Craig, University of Oxford Faculty of Law, is publishing English Administrative Law History: Perception and Reality in Judicial Review in the Common Law World: Origins and Adaptations (S. Jhaveri and M. Ramsden, eds., forthcoming). Here is the abstract.

The history of English administrative law remains to be written. It is a task of considerable magnitude, given that it requires understanding of case law, regulatory legislation, government and politics spanning a period of circa 450 years. The task is more especially daunting given the range of different areas that were subject to governmental regulation broadly construed. It is, therefore, unsurprising that the intellectual task has not been fulfilled. This has not, however, translated into a dearth of opinion as to English administrative law history. To the contrary, as will be seen below, there are views in this regard, and some are strongly held. There is, as in any intellectual endeavour, the danger of an inverse relationship between the strength of a person’s conviction and the depth of their knowledge. This chapter is not a history of English administrative law, since that would, as noted, require a book in itself. It does, however, offer a lens through which to view two different conceptions of that history, which are termed perception and reality. These terms are admittedly tendentious, in the sense that they convey, by their very semantic meaning, my view as to the more accurate picture of administrative law as it developed over time. There is, however, nothing special in the use of language in this regard, since those who adhere to the opposite position deploy language that is equally tendentious. The discussion in this chapter is part of the larger study concerning the export and reception of administrative law in other common law jurisdictions. The effect of the disjunction between perception and reality on such export is interesting. The causation is contestable, and does not necessarily always pull in the same direction. Thus, perception of administrative law as being relatively modern may have hampered its development elsewhere, and at the same time encouraged other jurisdictions to feel freer in adapting its precepts to local circumstance. The essence of the argument presented over the following pages is as follows. The commonly held view about English administrative law is that it is of recent origin, some dating it from the mid-twentieth century, some venturing back to the late nineteenth century. This view, when unpacked, is premised on assumptions concerning doctrinal case law and regulation. There is an empirical and a normative foundation underlying both assumptions. This ‘intellectual package’ constitutes the commonly accepted picture of administrative law as it unfolded in England. This, then, is the perception, grounded in four central constructs concerning case law and regulation, viewed from an empirical and normative perspective. It is set out in the first part of the chapter. The discussion thereafter is concerned with what I term the reality. It mirrors the discourse concerning perception, insofar as it considers case law and regulation from both an empirical and normative perspective. It will be argued that the commonly held view does not cohere empirically with reality concerning case law or regulation, and that the normative assumptions underlying the perceived view do not square with the general approach of the legislature or the courts during the foundational period of administrative law, which runs from the mid-sixteenth century onwards, with earlier origins. This disjunction between perception and reality could have had an impact on the ultimate exportability of English administrative law. The chapter concludes with a sketch of the implications for comparative study of other jurisdictions. These implications are the subject of discussion in the remaining chapters of the volume.

Download the essay from SSRN at the link.

Grajzl and Murrell on Estimating a Culture: Bacon, Coke, and Seventeenth-Century England

Peter Grajzl, Washington and Lee University Department of Economics; CESifo, and Peter Murrell, University of Maryland Department of Economics, have published Estimating a Culture: Bacon, Coke, and Seventeenth-Century England. Here is the abstract.

We use machine learning to estimate the features of early seventeenth-century English culture, applying structural topic modeling to the works of Francis Bacon and Edward Coke. The estimated topics reflect a core set of cultural ideas spanning legal, political, scientific, and methodological themes. Legal topics are highly connected, revealing an advanced structure of common-law thought that straddles areas of ostensibly disparate legal scholarship. The methodology of the common law is used to structure principles that are applied to debates both inside and outside law. Interconnections between topics uncover a distinctive approach to the pursuit of knowledge, embodying both Coke's legal methodology and Bacon's epistemology. Similarities between Bacon and Coke overshadow differences when conditioning on intended audience and time of authorship. Our estimated topics are constitutive elements of an emerging culture that reflected a legacy of common-law thought and that provided the core intellectual paradigm as England began its early ascent.

Download the article from SSRN at the link.

Cavangh on The Imperial Constitution of the Law Officers of the Crown @edward_cavanagh

Edward Cavanagh, University of Cambridge, is publishing The Imperial Constitution of the Law Officers of the Crown: Legal Thought on War and Colonial Government, 1719–1774 in the Journal of Imperial and Commonwealth History (2018). Here is the abstract.

The rule of conquest came to receive different applications for different parts of the British Empire. How this happened, and who was responsible for it happening, are the interests of this article. Calling upon court reports, parliamentary records, and correspondence between various officeholders in the early Hanoverian government, attention will be drawn in particular to the attorney general and the solicitor general (the law officers of the crown) and the advice they offered upon the governance of colonies between 1719 and 1774. Focusing upon the conventions that pertain to war and conquest in Ireland, the Caribbean, India, and North America, this article reveals inconsistency in doctrine, but consistency in the procedures by which law officers of the crown acquired influence over proceedings in the houses of parliament and in the courts of common law and equity. Just as often in their formal capacities as in their informal capacities, the attorney general and the solicitor general were pivotal to the development of the imperial constitution, in constant response, as they were, to the peculiar demands of various colonies and plantations in the British Empire.

Download the article from SSRN at the link.

Murrell on How the Independence of Judges Reduced Legal Development in England, 1600-1800 @UofMaryland

Peter Murrell, Department of Economics, University of Maryland, has published The Independence of Judges Reduced Legal Development in England, 1600-1800. Here is the abstract.

Conventional wisdom on English development confers iconic status on the clause of the Act of Settlement (1701) that mandated secure tenure for judges. Because the Act's effect on tenure was partial, the effect of tenure on judicial decisions can be identified. The paper estimates how the awarding of tenure changed the number of citations to judges' decisions, a measure of judicial quality. The empirics uses two new databases, one on judges' biographies and one recording citations in the English Reports to earlier decisions. Several strategies aid identification. A court-year panel permits difference-in-differences. Controls capture judges' human capital and the importance of litigation. Instrumental-variable estimates use judge life-expectancy and political vicissitudes as instruments. Tenure has a strong, significant, and deleterious effect on the quality of associate-judge decisions. Tenure has no effect for chief judges. The Act of Settlement reduces citations by 20% in the 18th century. The results are interpretable in terms of the incentives provided by a powerful legal profession that could protect vulnerable judges in a politically volatile era.

Download the article from SSRN at the link.

Willison on Whether Banks Were Special: Contrasting Viewpoints in Mid-Nineteenth Century Britain @bankofengland

Matthew Willison, Bank of England, has published Were Banks Special? Contrasting Viewpoints in Mid-Nineteenth Century Britain as Bank of England Working Paper No. 755. Here is the abstract.

In 1853 a Royal Commission was set up to investigate whether laws related to limited liability in Britain needed to be modified. As part of its evidence gathering the commission issued a questionnaire that included a number of questions on whether banks should be subject to the same liability laws as other types of commercial enterprises. This paper analyses the responses to the questions about banks to understand whether banks were seen as a special case. Support for modifying the law to make limited liability more easily available to banks was lower than for enterprises in general. Banks were seen as a special case because of the risk of bank runs and because their creditors were not able to assess accurately the riskiness of banks. But the special nature of banks caused others to favour limited liability because it made banks’ capital levels more transparent. These arguments echo wider debates during the nineteenth century and are similar to contemporary theories for why banks are regulated.

The full text should be available from SSRN at the link.

Allison on Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution

John W. F. Allison, University of Cambridge Faculty of Law, is publishing Minimising Magna Carta and Modernising Exposition of the Rule of Law in the English Historical Constitution in Handbook on the Rule of Law (Christopher May and Adam Winchester, eds., Edward Elgar, 2018). Here is the abstract.

Dicey’s view of the English constitution as historical was traditional, but he promoted, and imported to that constitution, a history that was comparative, critical and modernist. His promotion of history as comparison affected his treatment of Magna Carta and his view of its importance to the rule of law. Provisions of Magna Carta provisions are compared and contrasted with Dicey’s exposition of the rule of law to explain his disdain for Magna Carta’s importance, to show the extent to which his exposition of the rule of law marked its modernisation in the English historical constitution, and to illustrate Diceyan history as comparison. The historical comparison serves as an illustration with which to consider the value of history as comparison - for Dicey in his treatment of Magna Carta and for normative interpretivists in drawing upon his rule of law. (This is a draft chapter that has been accepted for publication by Edward Elgar Publishing in the forthcoming 'Handbook on the Rule of Law' edited by Christopher May and Adam Winchester and due to be published in 2. Chapter 10 is available at: https://ssrn.com/abstract=3219209.)

Download the chapter from SSRN at the link.

Crosby on the Dean of St. Asaph's Case @_Kevin_Crosby_ @hartpublishing

Kevin Crosby, Newcastle Law School, has published R v Shipley (1784): The Dean of St Asaph's Case in Landmark Cases in Criminal Law (Philip Handler, Henry Mares, and Ian Williams, eds., Hart Publishing, 2017). Here is the abstract.

In 1784, William Shipley, the Dean of St Asaph (and the son of St Asaph’s radical bishop Jonathan Shipley), was prosecuted for republishing a controversial political pamphlet. William Jones, the pamphlet’s author, was surprised to find a prosecution for the publication of an abstract work of political philosophy was even possible; and it may have been this, combined with the fact Jones was respectable enough to have been recently elevated to the colonial Bench, which resulted in the Treasury’s refusal to pay the costs of the prosecution. While an English jury was eventually persuaded to convict Shipley ‘of publishing’ the pamphlet, he was subsequently discharged by the judges of King’s Bench, owing to the fact that under the prevailing doctrine of seditious libel a guilty verdict was understood as a de facto special verdict, leaving legal questions (including whether a particular pamphlet was actually seditious) to a later judicial determination. This case is primarily famous because of the challenge it posed to this established doctrine, highlighting the fact this strange form of verdict was, in Lobban’s words, an ‘unworkable stretching of the law’, and because it ultimately led to the passage in 1792 of legislation condemning the practice as contrary to the common law.

Download the essay from SSRN at the link. Here from the publisher's website is a description of the book's contents.

Criminal cases raise difficult normative and legal questions, and are often a consequence of compelling human drama. In this collection, expert authors place leading cases in criminal law in their historical and legal contexts, highlighting their significance both in the past and for the present. The cases in this volume range from the fifteenth to the twenty-first century. Many of them are well known to modern criminal lawyers and students; others are overlooked landmarks that deserve reconsideration. The essays, often based on extensive and original archival research, range over a wide spectrum of criminal law, covering procedure and doctrine, statute and common law, individual offences and general principles. Together, the essays explore common themes, including the scope of criminal law and criminalisation, the role of the jury, and the causes of change in criminal law.

 

Farrell and Hughes on Magna Carta and the Invention of "British Rights" @routledgebooks

Michelle Farrell, University of Liverpool, School of Law and Social Justice, and Edel Hughes, University of Limerick, are publishing Magna Carta and the Invention of 'British Rights' in Human Rights in the Media: Fear and Fetish (Michelle Farrell, Eleanor Drywood, and Edel Hughes, Routledge, 2018) (forthcoming).

In this chapter we argue that the antipathy towards human rights, and the Human Rights Act in particular, that is evident in certain sections of the media and political establishment, lies partly in its relationship with the European, and, therefore, foreign or ‘alien’, system of human rights protection. Somewhat paradoxically though, those who are most trenchant in their criticisms of the Human Rights Act nevertheless stress that Britain is a nation founded upon human rights. Through the lens of the Magna Carta we examine the invention of the tradition of British rights and how the Charter has been co-opted by those who seek to foment opposition to the Human Rights Act and, albeit to a lesser extent, by those who seek to defend the Act by demarcating a clear line of history between the Charter and the Act. Both approaches, we suggest, serve to crowd out the space required for a rational critique of rights.

Download the essay from SSRN at the link.

Kamali on Trial By Ordeal By Jury in Medieval England, Or Saints and Sinners in Literature and Law @LizPappKamali

Elizabeth Papp Kamali, Harvard Law School, is publishing Trial by Ordeal by Jury in Medieval England, or Saints and Sinners in Literature and Law in Emotion, Violence, Vengeance and Law in the Middle Ages: Essays in Honour of William Ian Miller (Kate Gilbert and Stephen D. Whites, eds., Leiden: Brill, 2018).

Using a miracle tale as a focal point, this paper illuminates the political and cultural context of York at the turn of the twelfth to thirteenth century in order to make sense of England’s rapid transition from trial by ordeal to trial by jury after 1215. More specifically, the paper highlights the possible impact of the period of papal interdict (c. 1208 – 1214), imposed by Pope Innocent III in response to King John’s intransigence over the appointment of a new archbishop of Canterbury, during this transitional period in criminal procedure. It argues that the interdict, with its suspension of liturgies, might have forced experimentation with alternative means of reaching verdicts in felony cases. The paper also suggests that juries might have been involved in the issuance of ordeal verdicts in the late ordeal period in England, in which case the shift from trial by ordeal to trial by jury may be less a moment of rupture than a transition from one form of trial using juries to another, albeit a trial form more starkly desacralized after 1215. It is the author’s hope that the paper will serve as a starting point for further research, not a decisive answer to the questions it raises, including whether England’s rapid adoption of final jury verdicts may owe something to the tussle between King John and a particularly imperial and imperious pope.

Download the essay from SSRN at the link. 

Bowman on British Impeachments (1376-1787) and the Present American Constitutional Crisis

Frank O. Bowman III, University of Missouri School of Law, has published British Impeachments (1376 – 1787) & the Present American Constitutional Crisis. Here is the abstract.

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the framers and ratifiers of the U.S. Constitution were the conscious heirs of Britain’s political evolution. The founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. It also produced two central features of American impeachment: the limitation of remedy to removal from office and the definition of impeachable conduct, particularly the famous phrase “high Crimes and Misdemeanors” adopted directly from British parliamentary language. Therefore, at a moment when impeachment talk is rampant, a reexamination of British impeachments is in order. This Article is the first comprehensive analysis of the entire arc of British impeachments from 1376 to 1787 since Raoul Berger’s classic 1974 study. It gives particular attention to issues raised by the current presidency. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior customarily designated as impeachable. These embraced, but were never limited to, indictable crimes, and included: armed rebellion and other overt treasons; common crimes like murder and rape; corruption (particularly the abuse of office for self-enrichment); incompetence, neglect, or maladministration of office; and betrayal of the nation’s foreign policy interests. The last of these categories has not been emphasized in modern American scholarship, but assumes particular salience in the present moment. Finally, and crucially, the Article concludes that, although Parliament sometimes used impeachment for less dramatic ends, its one indispensable function was removal of officials whose behavior threatened the constitutional order by promoting royal/executive absolutism over representative institutions and the rule of law. Critics of the incumbent president may find this thread of British precedent both poignant and potentially useful.

Download the article from SSRN at the link.

Allison on The Westminster Parliament's Formal Sovereignty in Britain and Europe from a Historical Perspective @cambridgelaw

John W. F. Allison, Cambridge University Faculty of Law, has published The Westminster Parliament's Formal Sovereignty in Britain and Europe from a Historical Perspective as University of Cambridge Faculty of Law Research Paper No. 47/2018. Here is the abstract.

In the historical backdrop to domestic British debates about Brexit has been tension between two contrasting and competing conceptions of the Westminster Parliament’s sovereignty. In issue has been whether or how parliamentary sovereignty has been subject to constraint, to limitations of form or substance, in strict legal theory or in practical politics. The tension was the product of a doctrinal dichotomy that Albert Venn Dicey introduced in the late-nineteenth century. He introduced it in attempting to juridicalise or juridify the constitution in his foundational and multi-edition textbook ‘The Law of the Constitution’. The dichotomy was, on the one hand, of a formal legal conception of Parliament’s sovereignty as limitless in theory and, on the other hand, of a substantive political conception of its sovereignty as limited in actuality. The tension between these legal and political conceptions has been manifest since then in various formal exercises of Parliament’s sovereignty that have impaired its substance. They include parliamentary enactments that conferred self-government in the process of decolonisation, that granted the executive powers to amend parliamentary legislation through “Henry VIII clauses”, and that delegated various governing powers in devolution. The tension has also been manifest in the enactment of the European Communities Act 1972, by which the Westminster Parliament made domestic legal provision for the UK’s original inclusion in the European Communities. The tension was exacerbated by the unqualified assertion of the unconditional supremacy of Community law by the ECJ, both before and after the 1972 enactment. Through judicial minimalism or false economy - failure to acknowledge, explain and address pressing issues at stake - in the response of the highest British court to the ECJ’s assertion of supremacy, problems in the Westminster Parliament’s legal and political sovereignty were left unresolved and vulnerable to serious objection. They contributed to making the UK’s continued membership of the EU precarious and unstable. The doctrinal and constitutional options and implications for the UK are challenging, as are various searching questions for the EU.

Download the article from SSRN at the link.