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N W Barber, THE CONSTITUTIONAL STATE Oxford: Oxford University Press (www.oup.com), Oxford Constitutional Theory, 2010. xiii + 199 pp. ISBN 9780199585014. £50.

Document Cited in Related
Vincent
Date01 September 2011
AuthorPaul Scott
Pages484-486
Published date01 September 2011
DOI10.3366/elr.2011.0063

Unlike orthodox legal theory, the blossoming discipline of constitutional theory lacks a dominant reference point – a work with the status enjoyed in the former by Hart's The Concept of Law, out of which other work grows and in relation to which writers must at some point situate themselves. In its absence, there is inevitable contingency about the questions addressed by a work of constitutional theory – the style and subject-matter of such works vary so greatly that they do not seem to form part of the same intellectual endeavor. Against this backdrop, the constitutional theorist's task is not merely to persuade the reader of the correctness of his answers, but simultaneously to make a convincing case for the very questions he has chosen to address. In the course of The Constitutional State, Nick Barber's first, and perhaps most important, achievement is to follow up his claim that the discipline is suffering an “identity crisis” (1) with a work of constitutional theory which belies that description: his topics are well chosen and usefully inter-related and the book as a whole speaks with a strong and clear voice.

The core of the book develops an account of the state as a complex social group – institutions, people and territory tied together by rules – which has as its primary purpose the promotion of citizens’ wellbeing. This involves extended and unfailingly careful defences of sophisticated accounts of each of these concepts. A complex social group is capable of having a purpose, and the purpose identified as central to the “constitutional state” is citizenship, which has an intrinsic value, and which all states should be attempting to promote at all times. Various roles played by rules are distinguished, and their function in the constitution of social groups generally is highlighted. This account is in turn applied to constitutions, the ambiguous nature of which is held to result from a misunderstanding of their scope. Armed with an account of rules, we see that constitutions are made up of both legal rules and conventions, the difference between which is merely one of degree. As a social group the state is frequently said to have intentions and to undertake actions, and the sense in which this is true is explored, along with the relationship between the actions and intentions of the state and its members, including responsibility of existing states for the wrongs committed by their previous incarnations. Two final chapters, on legal and...

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