Our Republican Constitution
| Published date | 01 March 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00585_2.x |
| Date | 01 March 2006 |
on the rise of information duties as the key regulatory technique for avoiding
market failures and protecting weaker parties against grave mistakes.
Despite these common themes emerging in this valuable study, it remains true
both that the legal systems employ a wide variety of legal doctrines and that they
often disagree about the results. The disagreement about the results seems to
re£ect a di¡erence in ideology. At the English end of the spectrum, the courts
tend to uphold bargains even where one party has made a se rious mistake and will
su¡er major loss, whereas at the other end of the spectrum, some legal systems
will always ¢nd a way to protect a party from a costly mistake, either by ¢nding
the other party at fault or by invoking a general doctrine of unfairness (‘laesio
enormis’). In my opinion, this divergence prevents the emergence of common
core. Nevertheless, this book does success fully signal that in Europe, though there
is no common core, there is now a common agenda ^ namelyto develop a coher-
ent pattern of information duties arising during the formationof contracts.
Hugh Collins
n
AdamTomkins,Our Republican Constitution,Oxford: Hart Publishing, 2005,
xii þ156 pp, pb d10.0 0 .
In recent years,Tomkins has made an enlivening contribution topublic law scho-
larship, and this latest o¡ering is no exception.The book’s objective is to put the
case fora republican readingof the British constitution, and topropose reforms to
make it even more republican. Republicanism is an ideology which emphasises
freedom as non-domination, popular (rather than monarchist) sovereignty, and
political accountability which must be built into the constitution’s institutional
design.Tomkins begins with a refreshing defence of the British constitution. Its
‘beautiful rule’, he argues, is that governments are accountable to Parliament. As
such, the move from a political constitution to a legal constitution is a mistake.
Politics is a better, more e¡ective check on executive power than are the courts.
Tomkins then goes on to debunk the centraltenets of the ‘legalconstitutionalism’
which has proven popular amongst academic lawyers over the last two decades.
Legal constitutionalism, he argues, is both undemocratic and ine¡ective.
Whilst Tomkins’ criticisms of legal constitutionalism are compelling, one
might question some of his assumptions.For example,his portrayalof the execu-
tive seemswholly negative:‘the government of the day is liable totry to do what-
ever it thinks itcan get awaywith’ (p 3).He puts so much emphasison contexts in
which a wicked executive needs to be checked atal l costs that he neglects govern-
ment’s liberating potential.In a more progressive era it wasbasical ly the executive
which gave us the NHS and welfare state, aspects of British life which have liber-
ated many more of us than any fundamental rights instrument ever will. To be
sure, we are in the middle of a protract ed reacti onary pe riod when govern ments
seem more preoccupied with clamping down on civil liberties than with enhan-
n
London School of Economics.
Reviews
280 rThe Modern LawReview Limited 2006
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