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The state: a sine qua non of public law? A critique of Martin Loughlin’s state-centred approach to public law

The state: a sine qua non of public law? A critique of Martin Loughlin’s state-centred approach to public law
The state: a sine qua non of public law? A critique of Martin Loughlin’s state-centred approach to public law

This article critically considers a state-centred approach to public law that has been epitomised in Martin Loughlin’s claim that the concept of the state is the sine qua non of public law. More precisely, the article argues against two theoretical tenets that underlie this state-centred approach. The first tenet is the consideration of state authority as absolute authority. The second tenet claims that public law has a deep distinctness from all other fields of law, which are contrasted to it by being described as constituting the realm of ordinary law. The article also challenges the ability of the aforementioned state-centred approach to fully account for the status and role of the doctrine of parliamentary sovereignty in the UK constitutional order. This challenge is discussed in light of a distinction between state sovereignty and parliamentary sovereignty.

Authority, legal system, parliamentary sovereignty, public law, state, the UK constitution
2040-3313
1-15
Psarras, Haris
09a970ac-0e94-46f3-b19b-f74e6a9974b0
Psarras, Haris
09a970ac-0e94-46f3-b19b-f74e6a9974b0

Psarras, Haris (2018) The state: a sine qua non of public law? A critique of Martin Loughlin’s state-centred approach to public law. Jurisprudence, 1-15. (doi:10.1080/20403313.2018.1468164).

Record type: Article

Abstract

This article critically considers a state-centred approach to public law that has been epitomised in Martin Loughlin’s claim that the concept of the state is the sine qua non of public law. More precisely, the article argues against two theoretical tenets that underlie this state-centred approach. The first tenet is the consideration of state authority as absolute authority. The second tenet claims that public law has a deep distinctness from all other fields of law, which are contrasted to it by being described as constituting the realm of ordinary law. The article also challenges the ability of the aforementioned state-centred approach to fully account for the status and role of the doctrine of parliamentary sovereignty in the UK constitutional order. This challenge is discussed in light of a distinction between state sovereignty and parliamentary sovereignty.

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HP TSASQNOPL 15.04.18 - Accepted Manuscript
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More information

Accepted/In Press date: 5 June 2018
e-pub ahead of print date: 5 June 2018
Keywords: Authority, legal system, parliamentary sovereignty, public law, state, the UK constitution

Identifiers

Local EPrints ID: 423829
URI: http://eprints.soton.ac.uk/id/eprint/423829
ISSN: 2040-3313
PURE UUID: 87890f62-a884-4105-a8ff-1a5d7c510482
ORCID for Haris Psarras: ORCID iD orcid.org/0000-0003-2473-4335

Catalogue record

Date deposited: 02 Oct 2018 16:30
Last modified: 06 Dec 2019 05:01

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