Martin Loughlin

The Regulatory State

Recently, there has been a discernible shift towards a regulatory mode of governance. This innovation has inspired commentators to talk of the emergence of ‘the regulatory state’, a distinctive style of governance which they see evolving throughout the industrialized world (Majone, 1994; Majone, 1996; McGowan and Wallace, 1996). In examining this trend, we must first try to identify this phenomenon. By ‘regulation’ we mean the attempt to modify the socially-valued behaviour of others by the promulgation and enforcement of systems of rules, typically by establishing an institutionally distinct regulator (Selznick, 1985; Ogus, 1994; Daintith, 1989). The increasing use of regulation as a formal instrument of government may thus arise because of the growing need to ‘steer’ the behaviour of a variety of actors — both public and private — who operate at some remove from the central state (Osborne and Gaebler, 1993). This certainly has occurred in the UK and the trend seems to be a consequence of certain basic changes in the role and structure of government.

Legality and locality : the role of law in central-local government relations

This book seeks to trace the main dimensions of recent conflicts between central departments of governments and local authorities and to reveal something of their significance. It does so by focusing on the role of law in shaping the central-local government relations which is neglected in many contemporary studies and yet is of vital importance in identifying the character of that relationship. Precisely why they should be so is not self-evident. The main objective of this introduction therefore is to highlight the importance of this dimension to the study of central-local relations and then to explain the way in which the key themes of the study are to be addressed. One highly significant aspect of the study is the identification of a process of juridfication which is only gradually becoming clear. This has not only been a major undertaking, it has also been a highly complex, ambiguous, confusing, and frustrating activity. This has caused problems for government and for the judiciary and not surprisingly there have been expressions of discomfort on all sides. This book helps to explain where the process may have gone wrong and why ultimately it may be an objective which cannot be realised. Ultimately what the book seeks to demonstrate is that the issues raised by the government of central-local relations transcend the institution of local government and are directly linked to our system of parliamentary democracy. Furthermore the author argues that the system of central-local government relations has evolved in such a way that it reveals a great deal about our tradition of public law. An examination of these issues through an explication of the themes of legality and locality therefore requires the reader to address basic questions about the nature of contemporary British government.

The concept of constituent power

This article examines the meaning and significance of the concept of constituent power in constitutional thought by showing how it acts as a boundary concept with respect to three types of legal thought: normativism, decisionism and relationalism. The concept can be fully appreciated, it suggests, only by adopting a relationalist method. This relationalist method permits us to deal with the paradoxical aspects of constitutional founding creatively and to grasp how constituent power, as the generative aspect of the political power relationship, works not only at founding moments but also within the dynamics of constitutional development. Relationalism realizes this ambition by exposing the tension between unity and hierarchy in constitutional foundation and the tension between the people-as-one and the people-as-the governed in the course of constitutional development. It contends, contrary to normativist claims, that constituent power remains a central concept of constitutional thought.

The Functionalist Style in Public Law

1 Although John Stuart Mill did not seek to define a creed of liberalism, his essay On Liberty (London: J.W. Parker, 1859) elaborates most of the key principles of what here is called classical liberalism. 2 See John A. Hobson, The Crisis of Liberalism: New Issues of Democracy (London: P.S. King, 1909). 3 See William Logue, From Philosophy to Sociology: The Evolution of French Liberalism, 1870–1914 (De Kalb: North Illinois University Press, 1983); J.E.S. Hayward, ‘The Official Social Philosophy of the French Third Republic: Léon Bourgeois and Solidarism’ (1961) 6 Intl Rev.Soc.History 27. 4 James J. Sheehan, German Liberalism in the Nineteenth Century (Chicago: University of Chicago Press, 1982); Peter Gay, The Dilemma of Democratic Socialism: Eduard Bernstein’s Challenge to Marx (New York: Columbia University Press, 1952).

Constitutional pluralism: An oxymoron?

This article examines the origins of the concept of constitutional pluralism that has emerged in the last decade and it critically assesses the claims of its advocates. It argues that the claims made on behalf of the concept cannot be sustained and seeks to show that constitutional pluralism is an oxymoronic concept.

The constitutional imagination

The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a ‘world-making’ capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.

The misconceived search for global law

ABSTRACT This note argues that the claim that globalization leads to a fundamental shift in the very idea of law is misconceived. First, because the juristic claims advocates make are not new; secondly, because they seek inappropriately to convert empirical issues into conceptual claims; thirdly, because they promote conceptual claims by misidentifying the character of modern law; and finally because, although there is an important issue to be raised by contemporary developments, this—a politico-legal issue—is one that they avoid.

The positivization of natural rights

Although the idea of rights constitutes an important strand of modern political thought, for most of the modern era it has generally remained subservient to other claims of sovereignty, nationalism, and democracy. It is only since the Second World War that rights discourse has been able to establish itself as a common currency of both politics and law. Contemporary public discourse, especially that which appeals to such core values as liberty, equality, and justice, is now invariably cast in the language of rights. We live today in an “age of rights.”1