The English Historical Constitution : Continuity, Change and European Effects

Table of Cases vii Preface xi 1 Introduction 1 2 A historical constitutional approach 7 Dicey's analytical approach 7 A descriptive analytical legacy 9 Dicey's methodological predicament 11 The historical constitution 15 Towards a methodological reformation 24 Aims and method 26 The liberal normativist alternative 29 The political constitution 33 Complementary and competing points of view 39 The historical constitution's relevance 41 3 The Crown: evolution through institutional change and conservation 46 The medieval European matrix 47 The Crown as a corporation sole 50 English constitutional adaptation 54 Later European influences: Maitland and modernisation 58 The impact of Community law 64 Domestic English resources 67 English peculiarities and European influences 69 Sources of rationality and legitimacy 70 4 The separation of powers as a customary practice 74 The French standard 76 Early English advocacy 78 Historic legislation on judicial power and judicial tenure 80 Doctrinal scepticism 83 Doctrinal inconsistency 86 Evolving judicial practice 87 The recent constitutional reforms 94 The English paradox 100 5 Parliamentary sovereignty and the European Community: the economy of the common law 103 Dicey's orthodoxy 105 Rules of manner and form 107 Judicial revolution 110 Principles of legal and political morality 119 The economy of the common law 123 Resilience through change and continuity 126 6 The brief rule of a controlling common law 128 Coke's common law of reason 131 Contrasting interpretations 132 Rex...sub Deo et lege 141 The European and the English in reason and rhetoric 143 A controlling common law and a transcendent Parliament 148 The eclipse of Coke's controlling common law 150 The historical constitutional significance of Coke's common law 156 7 Dicey's progressive and reactionary rule of law 157 The formality of Dicey's three meanings 158 The sway of a sovereign Parliament 161 A constitutional conundrum 164 Progressive whig history 165 English reactions and Continental comparisons 172 Diceys appeal 184 8 Beyond Dicey 186 Dicey's continuing influence 188 A substantive rule of law 191 Bi-polar sovereignty 216 The Human Rights Act 1998 221 Formation of doctrine in the historical constitution 234 9 Conclusions and implications 237 Bibliography 245 Index 264