Sovereignty and contemporary Scottish constitutional debate

KDC Scotland

Hunter, Iain James ; Goldoni, Marco

University:University of Glasgow

Department:School of Law

关键词: Scotland, constitutionalism, legal theory, devolution, sovereignty.;   

Others  :  http://theses.gla.ac.uk/8957/1/2018hunterLLM%28R%29.pdf

来源: University of Glasgow

【 摘 要 】

This thesis critically analyses the juristic concept of sovereignty in contemporary Scottish constitutional debate. ‘Parliamentary Sovereignty’ – the shibboleth of the British public lawyer – has by now weathered many attacks but remains stubbornly in place as the foundation of the United Kingdom’s constitution. The problems this has thrown up for the accommodation of Scotland in the famously vague yet remarkably resilient structures of the British constitution are well-documented, and they have provided useful ammunition for a resurgent political nationalism. A Scottish tradition of popular sovereignty has increasingly been invoked in recent decades as a counter to the dominance of Westminster’s absolute legislative authority. This ostensibly one-sided fight takes place in a field of inquiry most often avoided by British public lawyers: the interface between law and politics. The distinction between legal and political sovereignty is observed dogmatically in orthodox jurisprudence, and it has even coloured more radical attempts to re-imagine what sovereignty might mean in an era when many contend that sub-state and supra-state influences are reshaping the modern polity. It will be argued that a failure to properly theorise the juncture of law and politics in traditional Anglocentric scholarship has led to a situation in which the concept of sovereignty has become so misunderstood that its significance is routinely overlooked. Both extant pluralist treatments of sovereignty specifically addressed to the Scottish context and its recent invocations in contemporary constitutional debate have depended on erroneous or impoverished constructions of its meaning and function. It is submitted that the model of sovereignty developed by Martin Loughlin provides a superior analytical framework for investigations into the current constitutional position of Scotland, and offers a more illuminating account of the forces which are at work in a nascent Scottish public sphere.