The theoretical turn in British public law scholarship

• Main Author: Tschorne Venegas, Samuel
• Published: London School of Economics and Political Science (University of London) 2016
• Subjects: 342.41; K Law (General)
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.702963

This dissertation studies the theoretical turn in contemporary British public law scholarship with a view to understanding what is it that public lawyers do when they theorise their subject. The diversification and expansion of theoretical writings that has animated the theoretical turn was inspired by the belief that the atheoretical character of public law scholarship made it unsuited to address the contemporary problems of the field. From the critique of the ‘dismal’ performance of public lawyers came a call to scholars to embark on a search for the foundations of their subject. Most of those who answered this call understood the task to be undertaken as an inquiry into the principles or values that ground and give normative force to public law. In this sense, most approaches within contemporary British public law theory constitute a species of constructivism whose variations differ according to the theoretical resources that are employed (critical social theory, moral philosophy or political theory) and what is taken to be the normative centre of the field (the administrative process, judicial review or political accountability). Although constructivism has been dominant, it would be wrong to assume that all conceptions could be subsumed under that category. There are, I argue, two principal alternative approaches. One, called deconstructivism, contends that theory has a tendency to become estranged from practice because it fails to acknowledge constitutional change and overestimates the role of principles, creating the conditions for the unreflective reproduction of a number of ‘myths’ which have to be dispelled by uncovering the empirical foundations of the subject. The other, labelled reconstructivism, argues instead that the theorist cannot make sense of the field and its present predicaments without understanding the particular historical evolution of the subject which has been informed by competing traditions of thought. Against a widespread assumption, my contention is that these theoretical approaches are not only competitive but also complementary. Without denying that these conceptions are semantically and methodologically incommensurable, I show that this pluralised theoretical landscape represents a decisive enlargement of the understanding of the subject.