Conceptualising Crown Accountability: Lessons from the Legal Pluralism Debate
| Author | Tristan Webb |
Conceptualising Crown Accountability:
Lessons from the Legal Pluralism Debate
Tristan Webb*
Comparative accountability has established itself as a fruitful sub-discipline within comparative
law. But issues of methodology persist, particularly regarding the analytical applicability of
familiar legal terms to new settings. The inter-disciplinary debate about ‘legal pluralism’ reveals
several different approaches that can be taken in tackling these methodological issues. This article
reviews the usefulness of these approaches in the analysis of English legal history. It does so
specifically with regard to different conceptualisations of accountability for the exercise of Crown
power, as advanced variously by Bracton, Sir Edward Coke, and Lord Diplock, and as seen in the
2015 House of Commons vote on Syrian Air-Strikes.
INTRODUCTION
This Article is intended to be the first step towards a much fuller study of the comparative
philosophy of public accountability in the legal histories of England and Korea. It was inspired
by records of court practice in Chosun Korea, for the King was followed by two historians,
who recorded the King’s words and deeds but denied him the right to review their record.
Even his instruction that an ignominious fall from a horse not be recorded was dutifully
recorded. It struck me that one could view this as an ingenious practice, from which
contemporary polities revisiting their Freedom of Information laws might wish to learn. I
endeavoured to understand more about the different ways of conceptualising accountability
in the exercise of public power.
Comparative accountability is a relatively new sub-discipline in comparative law, albeit one
that is already well-established.
1
Two recent illuminating examples of the sub-discipline by
Hahm
2
and by Dowdle
3
follow this Article’s introduction. This Article will take some steps
towards their approach of comparative accountability, but is limited at this stage to a mere
sketch of certain moments in English legal history. Specifically, it limits itself to identifying
some – not all – ideas about how the Crown might be accountable for its exercise of power.
The materials used are the writings of Bracton from the first half of the thirteenth century,
4
Sir
Edward Coke in the first half of the seventeenth century,
5
Lord Diplock’s judgment at the end
of the twentieth century,
6
and a Parliamentary vote on the Crown’s prerogative to declare war
in 2015.
7
As the examples of Hahm and Dowdle will show, comparative accountability, as with
comparative law, is bedevilled by significant methodological issues regarding the
‘transferability and comparability of meaning’.
8
In short, what is meant by ‘law’ and
‘accountability’ in England today is different from what it may have meant 800 years ago,
which provides certain challenges. Therefore, rather than attempting a grand analysis of
public accountability in the exercise of Crown power throughout English legal history, this
Article will merely make certain limited observations of that accountability at different
moments in time, before turning to the ‘Legal Pluralism’ debate for assistance in tackling the
aforementioned methodological issues.
* The Author would like to thank Professor Lee Chulwoo for his enlightening classes on the sociology of law at Yonsei
University, which inspired this paper. Any errors are his own.
1
John Bell, ‘Administrative Law in a Comparative Perspective’ in Esin Örücü and David Nelken (eds), Comparative Law: A
Handbook (Hart Publishing 2007); Marku Suksi, ‘Governmental accountability in autonomies: Åland Islands in comparison with
select autonomies in Europe and elsewhere’ in Antoinia B Engelbrekt and Joakim Nergelius (eds), New Directions in Comparative
Law (Edward Elgar Publishing Limited 2009); John Ohnesorge, ‘Administrative Law in East Asia: a comparative-historical
analysis’ in Rose-Ackerman and Lindseth Cheltenham (eds), Comparative Administrative Law (Edward Elgar Publishing 2010).
2
Chaihark Hahm, ‘Rituals and Constitutionalism: Disputing the Ruler’s Legitimacy in a Confucian Polity’ (2009) 57(1) Am J
Comp L 135.
3
Michael W Dowdle (ed), Public Accountability: Designs, Dilemmas and Experiences (CUP 2006).
4
Henry de Bracton, On the Laws and Customs of England (Samuel E Thorne tr, HUP 1968).
5
Steve Sheppard (ed), The Selected Writings and Speeches of Sir Edward Coke (8th edn, Liberty Fund 2003 vol 1-2).
6
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ case).
7
HC Deb 2 December 2015, vol 603, cols 323-500.
8
Mark R Rutgers, ‘Comparative Public Administration: Navigating Scylla and Charybdis – Global Comparison as a Translation
Problem’ (2004) 26(2) Administrative Theory & Praxis 150, 152.
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