Mapping the Theoretical Turn in British Public Law Scholarship

Paul Daly and Joseph Tomlinson (eds) Researching Public Law in Common Law Systems (Cheltenham: Edward Elgar, 2022 Forthcoming)

LSE Legal Studies Working Paper No. 16/2021

30 Pages Posted: 9 Dec 2021

See all articles by Samuel Tschorne

Samuel Tschorne

Adolfo Ibanez University

Martin Loughlin

London School of Economics - Law School

Date Written: November 30, 2021

Abstract

This paper maps the main approaches that have taken shape following the recent theoretical turn taken by British public law scholarship. It simplifies this huge topic by adopting a synthetic method of drawing clusters of ideas into three main systems, constructive, deconstructive and reconstructive. Constructivism assumes that theorising about public law involves an inquiry into normative foundations and exhibits variation because of the different types of theoretical resources employed (critical social theory, moral philosophy or political theory) or differences over what is assumed to be the normative core of the field (administration, judiciary, or Parliament). These methods are criticised by a deconstructive technique that maintains that scholars turning to theory become estranged from practice and unwittingly create the conditions for an uncritical recycling of certain myths that must be dispelled if an empirically sound grasp of the subject is to be attained. But constructivism is also criticised by a method, which here we call reconstructivism, that, in common with deconstructivism, it is critical of attempts to promote a conception of public law founded on particular normative assumptions but, rejecting empiricism, advances an interpretative method that presents public law as the elaboration of political reason.

Suggested Citation

Tschorne, Samuel and Loughlin, Martin, Mapping the Theoretical Turn in British Public Law Scholarship (November 30, 2021). Paul Daly and Joseph Tomlinson (eds) Researching Public Law in Common Law Systems (Cheltenham: Edward Elgar, 2022 Forthcoming) , LSE Legal Studies Working Paper No. 16/2021, Available at SSRN: https://ssrn.com/abstract=3875755 or http://dx.doi.org/10.2139/ssrn.3875755

Samuel Tschorne (Contact Author)

Adolfo Ibanez University ( email )

Diagonal Las Torres 2640 Peñaleón
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Martin Loughlin

London School of Economics - Law School ( email )

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