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Preservative or transformative? Theorising the UK constitution using comparative method

Murkens, Jo Eric Khushal (2019) Preservative or transformative? Theorising the UK constitution using comparative method. American Journal of Comparative Law. ISSN 0002-919X (In Press)

[img] Text (I Comparative Method in Constitutional Theorising February 2019) - Accepted Version
Pending embargo until 1 January 2100.

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Abstract

The complexities of the United Kingdom’s decision to withdraw from the European Union whilst simultaneously honouring its prior commitments to its de-centralised, autonomous, and constituent nations have put constitutional questions back on the map. The dominant approach analyses these questions premised on the ‘preservative’ view of the constitution. This view prioritises the stability and continuity of the institutions in Westminster (Parliament) and Whitehall (central executive). However, the preservative view of the constitution is theoretically and practically deficient as it cannot give an account of the multi-polar and de-centralised developments of the past 20 years. Another interpretation regards the legal and political changes to the constitution as ‘transformative’. This view accentuates the fragility of the UK constitution due to a plurality of constitutional rules and the ongoing processes of devolution of powers within multilevel systems of government. This article discusses that evolution of the UK constitution through the prism of comparative constitutional law and its appropriate methodology. The preservative model of the constitution favours a universalist method, whereas the transformative model requires a contextualist method. I argue that the experience of supranational (European Union) and infranational (devolution) power-sharing has fundamentally altered the United Kingdom’s central constitutional concepts. To stabilise its fragmentary forces, the UK needs to adopt concepts that reflect the state as divided, the constitution as transitional, sovereignty as an attribute of the state rather than Parliament, and democracy as conflicted. Nothing less than the future of the United Kingdom as a state is at stake.

Item Type: Article
Additional Information: © 2019 The Author
Divisions: Law
Subjects: K Law > KD England and Wales
Date Deposited: 28 Feb 2019 14:03
Last Modified: 25 Jan 2020 00:06
URI: http://eprints.lse.ac.uk/id/eprint/100164

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