Searching for the State in British Legal Thought

Abstract

Janet McLean explores how the common law has personified the state and how those personifications affect and reflect the state's relationship to bureaucracy, sovereignty and civil society, the development of public law norms, the expansion and contraction of the public sphere with nationalization and privatization, state responsibility and human rights. Treating legal thought as a variety of political thought, she discusses writers such as Austin, Maitland, Dicey, Laski, Robson, Hart, Griffith, Mitchell and Hayek in the context of both legal doctrine and broader intellectual movements.

Ideologies in Law Time: The Oxford History of the Laws of England

“…One of the League's targets at the end of century was the proliferation of municipal trading enterprises. Municipally owned trading enterprises, such as gas companies, sought to make profits from which to subsidize municipal income from rating (particularly in the industrializing North) (McLean , 146–54). The newly forming electricity companies (usually the products of private initiative) found themselves in competition with local municipally owned monopolies.…”

“…Such was the thorough‐going reception of Dicey's views that the progressive era of the 1920s–1940s, which brought into being an enlarged bureaucracy and more bureaucratic decision making, seems to have taken British lawyers and politicians completely by surprise. It provoked a heated defense of the “new” administrative state in both the United Kingdom and the United States from scholars such as Landis, Pound, Robson, Jennings, Willis, and Laski (McLean , 165–88). Common to all the early twentieth‐century writing on administrative law is a discussion of Dicey.…”

“…At the end of the century, the influential legal historian Maitland lamented that the legal, the moral, the political, and the historical were being prized apart and sought to bring these disciplines back into a single strand in the style of German legal science (Maitland ). His own work incorporated elements of idealist philosophy, spawned the political pluralist movement, and influenced arguments in the case law (McLean ). Nevertheless, Lobban is probably correct to say that jurisprudence did not act as a conduit through which lawyers gained access to the philosophical thought of the day—even if it need not have been so (McLean , 52–89).…”

“…His own work incorporated elements of idealist philosophy, spawned the political pluralist movement, and influenced arguments in the case law (McLean ). Nevertheless, Lobban is probably correct to say that jurisprudence did not act as a conduit through which lawyers gained access to the philosophical thought of the day—even if it need not have been so (McLean , 52–89). In hindsight, the analytical turn in both jurisprudence and philosophy more generally turned out to be decisive, at least in the medium term—though perhaps a desire to make jurisprudence “interesting” may yet reinvigorate the subject (Dworkin )…”

“…These are questions with which I struggle in my own work. In Searching for the State in British Legal Thought (McLean ), I tell a story of the law's adjustment or partial adjustment to political, social, and philosophical changes, but also of the common law's frequent resistance to such changes. Because the common law always looks backward and forward at the same time and legal concepts speak to the present, future, and the past, it often takes a very long time for the law to respond to major political change.…”