Isabella Carter
In his 2009 book, *What's Wrong with the British Constitution?, Iain McLean argues that the traditional story of the British constitution is fundamentally flawed. McLean, a Professor of Politics at Oxford University, asserts that the constitution fails to accurately describe how people behave and how they should behave. He challenges the prevailing view of parliamentary sovereignty, highlighting the complex interplay between the monarch, Lords, and Commons. McLean's work combines historical insights, empirical analysis, and thought-provoking prescriptions, offering a unique perspective on British politics and comparative constitutions.
| Characteristics | Values |
|---|---|
| Traditional story of the British constitution | Fails to describe how people behave and how they ought to behave |
| Dominant view in constitutional law | Parliamentary sovereignty or supremacy |
| The people elect | Only one of the three houses: monarch, Lords, and Commons |
| UK's existence | By virtue of a constitutional contract between two previously independent states |
| Work of A.V. Dicey | Offers little understanding of the nature of the constitution |
| Idea that the people are sovereign | Dates back to the 17th century (maybe the 14th in Scotland) |
| Devolution and the UK's relationship with Europe | Has taken the UK along a constitutionalist road since 1972, perhaps since 1920 |
| Things to leave out of a written constitution | Unelected chambers, monarchs, established churches |
| Things to put in a written constitution | We the people |
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What You'll Learn
The traditional story of the British constitution
In his book, "What's Wrong with the British Constitution?", Iain McLean argues that the traditional story of the British constitution does not make sense. McLean's work combines enlightening history with careful empirical analysis and challenges the prevailing view of the British constitution.
McLean suggests that the traditional understanding of the British constitution purports to be both positive and normative, aiming to describe how people behave and how they ought to behave. However, he argues that it fails in both respects. It neither provides an accurate description of behaviour nor offers persuasive guidance on how people should behave.
Instead, McLean proposes a different perspective, challenging the idea of parliamentary sovereignty or supremacy. According to the view of parliamentary sovereignty, the supreme lawgiver in the United Kingdom is Parliament. However, McLean points out that Parliament, in a legal sense, comprises three houses: the monarch, the Lords, and the Commons. The people only elect one of these three houses, which complicates the notion of parliamentary sovereignty.
McLean further argues that the UK's constitution is based on a constitutional contract between two previously independent states. He suggests that the idea of the people being sovereign has a long history, possibly dating back to the 14th or 17th century, but has been overlooked in English constitutional writing. He highlights the impact of devolution and the UK's relationship with Europe since 1920 or 1972 as factors that have influenced the UK's constitutional trajectory.
Overall, McLean's work offers a provocative and insightful analysis of the British constitution, challenging traditional narratives and providing a reasoned alternative that contributes significantly to the field of constitutional law.
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The constitution's positive and normative nature
In his 2009 book, *What's Wrong with the British Constitution?*, Iain McLean argues that the traditional story of the British constitution is flawed in its attempt to be both positive and normative. That is, it claims to describe how people actually behave and how they ought to behave, but fails to do either successfully. McLean's critique of the British constitution is twofold. Firstly, he asserts that it does not accurately reflect the reality of how people behave. Secondly, he argues that it lacks persuasive force in shaping how people ought to behave.
McLean challenges the prevailing view of parliamentary sovereignty, which holds that the supreme lawgiver in the United Kingdom is Parliament. He points out the complexity of the legal concept of Parliament, which, to a lawyer, comprises three houses: the monarch, the Lords, and the Commons. However, only one of these houses, the Commons, is directly elected by the people, which undermines the idea that Parliament derives its authority from the people.
McLean suggests that a more insightful approach to understanding the nature of the constitution is to consider the ''veto plays' and 'credible threats' available to politicians since 1707. He highlights the impact of devolution and the UK's relationship with Europe since 1972, and possibly earlier, on the constitutional landscape. McLean's work draws on extensive historical research and contemporary political science tools to offer a provocative and insightful perspective on the British constitution.
McLean's argument has significant implications for understanding the British constitution's positive and normative nature. By challenging the traditional narrative, he opens up a debate about the accuracy and persuasiveness of the existing constitution. McLean's work invites a re-examination of the underlying principles and encourages a critical evaluation of whether they reflect the reality of political behaviour and effectively guide how people ought to behave.
In conclusion, McLean's book makes a valuable contribution to the field of constitutional study by highlighting the shortcomings of the traditional British constitution. His argument that it fails in its positive and normative aspects prompts a reconsideration of the constitution's effectiveness in describing and shaping behaviour. McLean's work offers a reasoned alternative, encouraging a broader discussion about the nature and role of the constitution in British politics.
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Parliamentary sovereignty
In his 2009 book, *What's Wrong with the British Constitution?*, Iain McLean argues that the traditional story of the British constitution does not make sense. McLean's work is a critique of the traditional interpretation of the British constitution. He suggests that the traditional view of the constitution purports to be both positive and normative, aiming to describe how people actually behave and how they ought to behave. However, he argues that it fails to achieve either of these objectives.
McLean's book offers a reasoned alternative to the traditional view. He challenges the concept of parliamentary sovereignty, which holds that the supreme lawgiver in the United Kingdom is Parliament. This idea, which still dominates the field of constitutional law, suggests that Parliament derives its authority from the people because they elect Parliament. However, McLean points out an inherent problem with this view: Parliament, from a legal perspective, comprises three houses—the monarch, the Lords, and the Commons—yet the people only elect one of these houses.
McLean argues that the UK's constitution is better understood as a constitutional contract between two previously independent states. He suggests that the idea that the people are sovereign dates back to the 17th century (or possibly the 14th century in Scotland), but has been largely overlooked in English constitutional writing. He highlights the impact of devolution and the UK's relationship with Europe since 1972 (or perhaps even earlier) as factors that have influenced the UK's constitutional trajectory.
McLean's work provides a unique perspective on the British constitution, offering insights into taken-for-granted historical interpretations. While not everyone may agree with his conclusions, his book is a significant contribution to the literature on British constitutional theory.
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$70.76 $78
The UK as a constitutional contract
In his 2009 book, *What's Wrong with the British Constitution?*, Iain McLean argues that the traditional story of the British constitution is flawed. He suggests that it fails to accurately describe how people behave and how they should behave. McLean proposes that the UK exists by virtue of a constitutional contract between two previously independent states. This idea of a "constitutional contract" is a central theme in McLean's critique of the British constitution.
McLean's argument centres on the notion that the British constitution is based on a misunderstanding of the country's history and the role of its institutions. He challenges the prevailing view of parliamentary sovereignty, which holds that the supreme lawgiver in the United Kingdom is Parliament. However, McLean points out that, legally, Parliament comprises three houses: the monarch, the Lords, and the Commons, only one of which is elected by the people. This, he argues, undermines the idea that Parliament derives its authority from the people.
McLean suggests that a more accurate understanding of the British constitution can be gained by examining the 'veto plays' and 'credible threats' available to politicians since 1707. He argues that the idea that the people are sovereign dates back to the 17th century (or perhaps even the 14th century in Scotland), but has been largely overlooked in English constitutional writing. Instead, he proposes that the UK's constitution is shaped by its devolution and its relationship with Europe, a road that the country has been travelling since 1920 or 1972.
McLean's work offers a provocative and insightful contribution to the field of constitutional study. By combining historical research with contemporary political science, he provides a fresh perspective on the British constitution and its evolution. His book has been praised for its careful empirical analysis and thoughtful prescriptions, offering a reasoned alternative to traditional narratives. McLean's work invites readers to reconsider their understanding of the British constitution and engage in a broader debate about the nature of constitutional law.
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The work of constitutional theorist A.V. Dicey
Albert Venn Dicey (1835–1922) was a British Whig jurist and constitutional theorist. He is most widely known as the author of 'Introduction to the Study of the Law of the Constitution' (1885), which outlined the principles of parliamentary sovereignty for which he is most known. Dicey argued that the British Parliament was "an absolutely sovereign legislature" with the "right to make or unmake any law". In the book, he defined constitutional law as including "all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state".
Dicey reworked the traditional idea of sovereignty into two separate concepts – legal and political sovereignty – in order to square the common law notion of the sovereignty of parliament with the democratic idea of the sovereignty of the people. He popularised the phrase "rule of law", although its use goes back to the 17th century. Dicey forged a new concept – "the rule of law" – to explain the legal basis of liberty in common-law countries in a manner that was both Benthamite and constitutionalist. Finally, he provided a democratic and anti-federalist rationale for maintaining the Union of Great Britain and Ireland.
Dicey's work has been described as ideological and nationalistic positivism, with an analytical coldness, a celebration of sovereign power, and an incessant drive to organise and codify legal rules separate from moral values or political realities. However, this view has been challenged, with a more nuanced interpretation of his work presenting him as a complex and sophisticated thinker, developing an understanding of law as a discourse of reason. Dicey's work has had a profound influence on constitutional law, with his doctrines remaining essential and fundamental even half a century after their publication.
Dicey held that "personal liberty is the basis of national welfare", and he treated parliamentary sovereignty as the central premise of the British constitution. He was a member of the Liberal Unionist Party and strongly opposed the Irish Home Rule movement, advocating against any concessions to Irish nationalism. He was also vehemently opposed to women's suffrage, proportional representation, and the notion that citizens have the right to ignore unjust laws. Dicey viewed the necessity of establishing a stable legal system as more important than the potential injustice of following unjust laws.
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Frequently asked questions
McLean argues that the traditional story of the British constitution does not make sense. It purports to be both positive and normative, but fails to correctly describe how people behave and how they ought to behave.
One of the topics covered in the book is the "Curious Incident of the Guns in the Night Time" which discusses the Curragh, Larne and the Constitution.
McLean offers a reasoned alternative to the traditional view, suggesting that the UK exists by virtue of a constitutional contract between two previously independent states.
One critique of the book is that McLean argues the work of influential constitutional theorist A.V. Dicey has little to offer those who want to understand the nature of the constitution, which some may disagree with.
