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Oxford Journal of Legal Studies, Volume 20, Issue 1, pp. 131-154: Abstract.

Sovereignty re-examined: the courts, parliament, and statutes

NW Barber

Brasenose College, Oxford, UK

In this article the relationship between Parliament and courts is examined. The views of writers on sovereignty are considered and criticized. Two criticisms of the sovereignty theorists are made: first, that they wrongly assume that a legal system must attribute supreme legal power to a single source and, second, that they wrongly assume that statutes in the English system constitute absolute exclusionary reasons for decision. It is contended that legal systems, can, and the English Constitution does, contain multiple unranked sources of law. Hart's rule of recognition and Kelsen's Grundnorm are considered and compared, and found to be insufficiently flexible to meet the realities of the English Constitution. A more complicated model of judicial reactions to statutes is proposed, and decisions of the judges that run contrary to the law as set down in the statute are considered. It is contended that the relationship of the courts to Parliament ought not to be considered a purely legal issue; it also has a political dimension.

Oxford Journal of Legal Studies, Volume 20, Issue 2, pp. 185-204: Abstract.

Constitutive Rights

ERIC J MITNICK

Department of Politics, Printeton University

Prevailing accounts of the relationship between rights and identity impose a false choice between conceptions of rights as the instrument of self-invention or the foil to collective virtue. This article proposes an alternative conception of rights as constitutive of social relations and aspects of individual identity. To do so, it draws on H. L. A. Hart's famous distinction between special and general rights, and it describes the exclusionary and inclusionary conditions under which these forms of right constitute social groups and self-meaning. Further, it specifies a pure form of «constitutive right», overlooked in Hart's typology, but extant in modern liberal, pluralistic societies, that inherently differentiates among persons and so directly constitutes aspects of human identity.

Oxford Journal of Legal Studies, Volume 20, Issue 4, pp. 499-532: Abstract.

Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights

CHRISTOPHER McCRUDDEN

Professor of Human Rights Law, Oxford University

It is now commonplace in many jurisdictions for judges to refer to the decisions of the courts of foreign jurisdictions when interpreting domestic human rights guarantees. But there has also been a persistent undercurrent of scepticism about this trend, and the emergence of a growing debate about its appropriateness. This issue is of particular relevance in jurisdictions that have relatively recently incorporated human rights provisions that are significantly judicially enforced. In the UK, a reconsideration of the use of comparative judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will (and/or should) use jurisprudence from other countries in order to help in arriving at decisions on the interpretation of the Act. This article raises for debate, therefore, the meaning and significance of national judges» citation of judgments from other jurisdictions as part of their reasoning in cases with a significant human (or constitutional) rights aspect. Several questions are identified and explored in an attempt to consider various aspects of the general phenomenon. These include empirical questions (how far does it happen, and where?), jurisprudential questions (can we identify criteria that help explain why it does or does not happen?), and normative questions (is it legitimate?). A review of the existing literature is undertaken with a view to determining how far scholars have succeeded in answering these questions. The article concludes that significant gaps exist in our understanding of the phenomenon and raises for discussion the methodologies that may be appropriate for addressing the phenomenon in the future.

Oxford Journal of Legal Studies, Volume 21, Issue 2, pp. 287-310: Abstract.

Democracy, Governance and Governmentality: Civic Public Space and Constitutional Renewal in Northern Ireland

John Morison

School of Law, Queen's University, Belfast

This article seeks to make some general points about the changing nature of constitutionalism by looking critically at the constitutional architecture of the Northern Ireland Act 1998. It argues that despite their sophistication the structures of settlement in Northern Ireland do not address fully the fundamental issues of the changing nature of power and the ethical character of constitutional transformation. The argument draws upon the governmentality approach associated with work developing the later writings of Michel Foucault to consider the nature of government and of multi-level and multi-form governance. In particular, the account reviews briefly the settlement structures and suggests that the role of government may have changed since last there was devolution in Northern Ireland. Next the history of involvement of the voluntary sector in governance in the Northern Ireland context is outlined to indicate its particular potential for development. Finally, the positive advantages of opening up a new democratic space through developing the role of civil society in the processes of governance are reviewed and the value of a constitutional renewal project is considered.