Defending and Contesting the Sovereignty of Law: The Public Lawyer as Interpretivist

Published date01 May 2015
AuthorStuart Lakin
DOIhttp://doi.org/10.1111/1468-2230.12128
Date01 May 2015
REVIEW ARTICLE
Defending and Contesting the Sovereignty of Law: The
Public Lawyer as Interpretivist
Stuart Lakin*
T. R. S. Allan, The Sovereignty of Law: Freedom, Constitution and Common
Law, Oxford: Oxford University Press, 2013, 361pp, hb £53.00.
How do we determine the content of the law and the constitution in Britain:
the legal and constitutional (or conventional) rights, duties and powers of
individuals, officials and institutions? On one view, favoured by many UK public
lawyers, we simply consult the relevant empirical facts: the rule(s) that identify
the sources of law within the constitution, the intentions of parliament in its
statutes, the rules of statutory interpretation, the dicta of judges, and the standards
of conduct that officials have accepted as binding in their political practices. In
short, we describe the law and the constitution in much the same way as an
anthropologist describes human behaviour or an astronomer describes the
arrangement of the planets. What we do not do is engage in controversial debates
about the meaning and requirements of moral values such as the rule of law,
democracy and liberty. Such debates, on this view, are not pertinent to the
question of what the content of the law and the constitution is, but only to what
it should be. Other people turn that empirical fact thesis (EFT) on its head. They
say that the content of the law and the constitution depends on controversial
arguments of political morality. Judges and lawyers must interpret statutes,
precedents and political practices in the light of the values and principles that best
justify those provisions – and which best justify the legal and constitutional order
as a whole. On this view, every statement of the law and the constitution is the
product of an interpretative judgment about which values and principles gen-
erate which rights, duties and powers. This interpretative thesis (IT) denies that
the content of the law and the constitution depend wholly on empirical facts. It
holds that the public lawyer – in common with judges, practitioners and citizens
– must argue like a philosopher, rather than describe like a social scientist.
In his most recent book, The Sovereignty of Law: Freedom, Constitution and
Common Law (Sovereignty), Professor T. R. S. Allan offers a robust defence of the
second of these answers to the question posed above. He contends that the EFT
is misconceived and that constitutional argument can only be interpretative.
These methodological claims permeate his wide-ranging discussions of substan-
tive issues in British constitutional law and practice. He also devotes his final
*Lecturer in Law, University of Reading. I am extremely grateful to Trevor Allan and Dimitrios
Kyritsis for their challenging and gracious comments.
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© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(3) MLR 549–570
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
chapter to an extended philosophical consideration of them. All that said,
Sovereignty is not primarily a work in abstract constitutional methodology. Allan’s
motivating concern is a very practical one. He thinks that the traditional doctrine
of parliamentary sovereignty and other tenets of British constitutional orthodoxy
are incorrect because they are based on the EFT. Conversely, he thinks that his
distinctive theory of common law constitutionalism, based on a liberal,
republican-inspired, conception of the rule of law, is correct because it reflects
the IT. His position seems to be this: if public lawyers argue in the correct (ie
interpretative) way about the British constitution, then they must reject the
traditional model of absolute legislative power in favour of a model of limited
power or ‘legitimate authority’ (120).
Whether or not one accepts Allan’s methodological claims, or the way he
marries them to particular visions of the constitution, he deserves high praise for
approaching public law in this way. Over many decades, he has underlined the
need for public lawyers to engage with deeper debates in legal and political
theory.1Above all, he has insisted that supporters of constitutional orthodoxy
explain and justify their position – rather than dogmatically assume its correct-
ness. Sovereignty carries these messages forward with greater force and philosophi-
cal rigour than anything he has previously written. As impressive as the substance
of his arguments is the way that he conveys them. Allan has a rare gift for
bringing complex theories to life with clear and provocative analyses of cases and
contemporary constitutional issues. Indeed, one would get a very good sense of
his EFT/IT distinction just by reading a selection of these analyses and nothing
else. His discussions of Liversidge vAnderson2(Liversidge) (21–25), R (Prolife)
Alliance) vBritish Broadcasting Corporation3(Prolife) (25–31), RvSecretary of State for
Transport, ex p Factortame Ltd (No 1)4and (No 2),5Thoburn vSunderland City
Council6(Thoburn) (146–150), R (Jackson) vAttorney General7(Jackson) (150–153),
RvA (No 2)8(186–188), and R (Bancoult) vSecretary of State for Foreign and
Commonwealth Affairs9(chapter 8 generally), are particularly illuminating. This is
an unashamedly theory-heavy work, but it is one that will resonate with the most
theory-averse ‘black letter’ public lawyer, and even with students finding their
way into their constitutional law module.10
Nonetheless, I shall pursue two general objections to Allan’s arguments in this
review article, along with some incidental ones. The first objection relates to his
1 See, in particular, his earlier books: Law, Liberty and Justice: The Legal Foundations of British
Constitutionalism (Oxford: Clarendon Press, 1993) and Constitutional Justice: A Liberal Theory of the
Rule of Law (Oxford: OUP, 2001).
2Liversidge vAnderson [1942] AC 206.
3R (Prolife) Alliance) vBritish Broadcasting Corporation [2002] EWCA Civ 297, [2003] UKHL 23.
4RvSecretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85.
5RvSecretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603.
6Thoburn vSunderland City Council [2002] EWHC 195 (Admin).
7R (Jackson) vAttorney General [2005] UKHL 56.
8RvA (No 2) [2001] UKHL 25.
9R (Bancoult) vSecretary of State for Foreign and Commonwealth Affairs [2001] QB 1067, [2008] UKHL
61.
10 Allan makes a point of beginning each chapter with an accessible overview of the detailed
arguments that follow.
Defending and Contesting the Sovereignty of Law: The Public Lawyer as Interpretivist
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
550 (2015) 78(3) MLR 549–570

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