Thomas Poole

Dogmatic liberalism? T.R.S. Allan and the common law constitution

Book reviewed in this article: T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law

Law, liberty and state : Oakeshott, Hayek and Schmitt on the rule of law

1. Introduction David Dyzenhaus and Thomas Poole 2. The mystery of the state: state-concept, state-theory and state-making in Schmitt and Oakeshott Nehal Bhuta 3. Law as concrete order: Schmitt and the abnormality of collective freedom Hans Lindahl 4. Nomos Martin Loughlin 5. Carl Schmitts defence of sovereignty Lars Vinx 6. Schmitt, Oakeshott and the Hobbesian legacy in the crisis of our times David Boucher 7. The mystery of lawlessness: war, law, and the modern state Thomas Poole 8. Reconfiguring reason of state in response to political crisis Duncan Kelly 9. Gambling and the rule of law: stochastic rationality in Oakeshotts philosophy Erika A. Kiss 10. Dreaming the rule of law David Dyzenhaus 11. What, if anything, is wrong with Hayeks model constitution? Jan-Werner Muller 12. Hayeks theory of the state Chandran Kukathas 13. Local and global knowledge in the administrative state Adrian Vermeule.

Devotion to Legalism: On the Brexit Case

This note examines the UK Supreme Courts judgment in the Brexit case, Miller v Secretary of State for Exiting the European Union. The case upheld the decision of the High Court, which rejected the claim that the foreign affairs prerogative provided a legal basis for giving notice to EU institutions of the UKs intention to withdraw from the EU. But the Supreme Courts preferred basis for dismissing that claim rested on the more general proposition that significant constitutional change can only be effected by statute. This position offers the germs of a jurisprudence of constitutional change and was substantiated by means of an analysis of Parliaments dual capacity as legislator and constituent agent. Miller also includes important and potentially innovative dicta on the relationship between international and domestic sources of law.

Rights and Opinion: Or, The Progress of Sentiments

Abstract What is the relationship between minorities and majorities within the liberal constitutional order, and what role ought courts play in defining that relationship? This paper approaches the question first by establishing a framework of analysis which, drawing on work of David Hume, isolates three often undervalued features of constitutional order: the idea of the constitution as a going concern; the idea of the constitution as a complex whole; and the idea of the constitution as a framework of moral sentiment. These themes are explored in a study of contemporary British constitutional politics, an example of a stable constitution in flux. Britain continues to struggle with the Human Rights Act and the new prominence it accords to rights in constitutional debate. Reflecting on this case study, the paper argues that, when it comes to thinking about constitutional change, we should pay more attention to the imaginations of our fellow citizens, and their limits, aiming to enlarge our moral horizons in a way that aligns them with what is best within existing practices.

Bills of rights in Australia

A Human Rights Act for the Australian Capital Territory (ACT) came into force on 1 July 2004. The Act represents Australia’s first bill of rights. It is also noteworthy as the first enactment to use the United Kingdom’s Human Rights Act 1998 as a primary model. After many years in which the Westminster system of parliamentary government has been imitated across the globe—albeit with decidedly patchy results1—it is something of a novelty for Britain to provide the inspiration for a legal framework of human rights protection.2 There is perhaps a certain irony in this development, as Britain has long been the home of notable rightssceptics, Burke and Bentham pre-eminent amongst them.3 And, while sometimes eager for other States to adopt bills of rights, Britain has itself been rather dilatory in recognizing the need to protect human rights within its own domestic sphere.4 A bill of rights that covers a jurisdiction with a population of just over 300,000 might seem, at first glance, to be a matter of local interest only. But the sponsors of the ACT Human Rights Act hope that it will serve as a model that will be adopted, in time, throughout Australia—the first domino in the chain, so to speak. Since the United Kingdom followed the pattern set by Canada and New Zealand, Australia has been the only Western democracy not to have a general enactment   Oxford University Commonwealth Law Journal 197