Modernism in British Public Law Thought

Modernism in British Public Law Thought Presented by: Mr. Loughlin Date: February 2023 Lecture Outline - Modernism - Modernism in Legal Thought - The peculiarities of British public law - An illustration: Laski the Jurist Modernism - WW1 - Ezra Pound: 'Make it new' - Painting: artistic expression through laws of geometry (cubism), physiology (futurism) and psychology (expressionism/surrealism) - Fiction: overthrow of narrative form - Music: abandonment of tonality - Face the future - Urban and cosmopolitan outlook Modernism in Architecture - ornamentation is crime' (Adolf Loos) - 'form follows function' (Louis Sullivan) - 'less is more (Ludwig Mies van der Rohe) - 'a house is a machine for living in' (Le Corbusier) - 'Principle before Precedent (Frank Lloyd Wright) Modernism in European Legal Thought - St Simon, Comte: theological, metaphysical and scientific ages of development. - Metaphysics > social physics = sociology - Two divergent schools of legal thought: - • Legal positivism (Newtonian physics) • Evolution/experience (Darwinian biology) Modernism: institutionalism, political pluralism, sociological positivism, Freirechtsschule, American legal realism - Dominance of analytical positivism (Oxf/Camb) - Keir & Lawson, Cases on Constitutional Law (1928): 'Knowledge of the constitution can best be acquired by a study of leading cases in constitutional law which create an abiding impression not of historical change, but of the permanence of the Common Law'. - Statutes are deliberately excluded because 'they have for the most part only a fleeting interest'. - UCL 1826; LSE 1895 - Webbs: LSE provided the institutional foundation for 'our common faith in a deliberately organized society: our common belief in the application of science to human relations with a view to betterment.' - Law = the technology through which the modern state was to be erected. - Law: commercial law, banking law, labor law, tax law, family law ... public law. - 1933. Jennings ed. Modern Theories of Law - 1937. The Modern Law Review - 1972. Otto Kahn Freund: LSE developed new subjects because these scholars promoted 'a conception of law as a social technique' and 'the functional treatment of the law' Modernism in Public Law - Common law = no distinction between public and private law - State/society distinction - Common law = law of society - Montesquieu: the British are 'the one nation in the world whose constitution had political liberty for its purpose' - Dicey, Law of the Constitution: accentuate the importance of the universal rule throughout British governmental practice of ordinary law - HJ Laski (1893-1950) - WI Jennings (1903-65) and WA Robson (1895- 1980) - JAG Griffith (1917-2010) and JDB Mitchell (1916?-1980) 10 Elements of Modernism in Public Law - Law is not an autonomous phenomenon that imposes ideal standards against which that society is to be measured; being a function of society, law evolves as society evolves. - Since humans are social creatures, society is best conceived as some type of organism. - To realize its collective values, society requires the disciplinary framework of the state, whose purpose is to promote the common good. - Since government exists to promote that basic function, it is not invested with subjective rights; government is the subject of duties. - The purpose of public law is to realize those public duties. - Conceptualism in law distorts understanding; it promotes form (concepts) over substance (ends) - Positive law must be interpreted purposively (i.e., with regard to its function). - Freedom is not the absence of formal constraints; it is associated with the realization of one's potential (the exercise of one's functions). Freedom therefore requires positive action by government. - Rights are to be treated simply as claims that are recognized and enforced only insofar as that promotes the common good. - In order to draw these elements into a coherent system a much broader, sociologicallyinformed conception of public law that extends beyond positive law to include 'political right' is required. Laski the Modern Jurist - 1920-50: 'The Age of Laski' - 20+ books, 100+ papers, + tracts, pamphlets, lectures, reviews and magazine publications. - Political philosophers incapable of remaining aloof from the political issues of the day - 'Only connect' ... theory and practice Laski's Academic Formation - Oxford history graduation 1914: appointment at McGill and then in 1916 at Harvard. - HLS's 'theory of teaching, its method of organization, its conception of the place of the law in university studies, are all of them genuinely novel... law is studied as dialectic instead of dogma'. - Articles in Harv L Rev, translation (1919) of Duguit, Les Transformations du Droit Public (1913). - 1920 appointment at LSE; 1926 Prof of Political Science. Laski's Works - Studies in the Problem of Sovereignty (1917) - Authority in the Modern State (1919) - The Foundations of Sovereignty (1921) - A Grammar of Politics (1925): • 'completes an effort, begun in 1915, to construct a theory of the place of the State in the great society' • 'A new political philosophy is necessary to a new world'.