Public Law

Simon Halliday

Introduction[1]

One of the challenges of writing about the integration of socio-legal studies into the teaching of the law curriculum is that, as a number of commentators have noted, the definition of 'socio-legal' can be quite hard to pin down (e.g. Harris, 1983; Galligan, 1996; Cotterrell, 2006). The history of socio-legal studies in the UK, perhaps because of its predominant development within the law schools (Thomas, 1997), is best understood as a reaction against the approach to the study of law which had dominated legal scholarship up to the 1960s. In this sense, the socio-legal movement in the UK has a clearer negative identity than a positive one: it is easier to identify what socio-legal is not, rather than what it is. The broad range of disciplinary and theoretical perspectives which can now be accommodated under the banner 'socio-legal' testifies to this. The strapline of the SocioLegal Studies Association, for example ('where law meets the social sciences and humanities'), is notably inclusive. And the approach to law against which socio-legal defines itself is narrow doctrinal analysis: the exposition of positive law, isolated from its economic, political and cultural contexts. Cotterrell, for example, reflecting on his own experiences, locates the attraction of a socio-legal approach in:

a set of new perspectives on law to allow a breakout from the claustrophobic world of legal scholarship and education, as previously encountered. Most legal study . .. at the end of the 1960s seemed to focus on technicality as an end in itself and was unconcerned with fundamental questions about law's nature, sources, and consequences as a social phenomenon or about its moral groundings. (2002, p. 633)

Equally Bradney, has suggested that:

the essential aridity of doctrinal study has a disabling effect on most of those who are subject to it . .. [D]octrinal study . .. forbids the making of connections with the wider questions which lie at the root of human enquiry. (1998: 76)

However, although socio-legal studies was in its origins a minority reactive movement (Thomas 1997), this no longer seems to be the case today. Twining, for example, charts the development of socio-legal studies alongside broader developments within the field of legal education (Twining, 1993). He notes that the socio-legal movement is only a little bit younger than the modern law school in the UK. Prior to the late 1960s, legal education was largely considered to constitute vocational training only. It is only since then that legal education has been viewed as constituting a liberal education in addition to equipping some graduates for the legal profession (Cownie, 2004). It is to be expected, then, that changes in the nature and scale of legal education should prompt developments in the approach to legal scholarship and teaching. Evidence of this can be found in Cownie's survey of UK law teachers (Cownie, 2004). In 2004, she reported that half of law academics described themselves as adopting a socio-legal approach to the study of law, and many of the other half, who described their approach as 'black-letter', also believed in the importance of introducing 'contextual issues' to students. It is likely, then, that the narrow approach to legal study which first prompted the socio-legal studies movement is now largely a 'boutique' offering within the modern legal academy.

Such is certainly the case with public law scholarship. Indeed, it is arguable that public law has never really been part of the 'claustrophobic world' of arid doctrinal study characterized above by Cotterrell and Bradney. The overlap between constitutional doctrine and political theory has been a recurrent feature of public law scholarship (e.g. Robson, 1928; Jennings, 1933; Loughlin, 1992; Allen, 1993). As Harlow and Rawlings note, '[b]ehind every theory of administrative law there lies a theory of the state' (2009, p. 1). Further, the distinction between 'law in the books' and 'law in action' has had much less purchase in relation to public law. Public law has long been concerned with the study of political conventions, customs and practices alongside statutes and case law. The presence of academic lawyers within the founding and continued membership of the Study of Parliament Group is one small example of this.[2] Also, the doctrines of public law have always been placed in the context of constitutional history. Even dear old Dicey, the bete noire of public law scholarship, expounded constitutional law through the medium of historical and comparative contextual analysis (Dicey, 1915).

So a principal contention of this chapter is that many aspects of what could easily be called a socio-legal approach have long been integrated into the study of public law in the UK. At one level, then, public law teachers need no guidance about how to approach the subject from socio-legal perspectives. Such has been a long-standing practice within UK law schools. That said, given the eclectic and inclusive character of the socio-legal movement, it is inevitable that some aspects of socio-legal scholarship are more prominent in the study of public law than others. Despite the unavoidably empirical concern with constitutional practice in light of the uncodified nature of our constitution, public law scholarship probably has a closer relationship to political theory than the empirical enquiries of political science. This is, perhaps, due to the essentially normative character of public law's 'big question': what is the appropriate role for law in relation to the state's governing activities? This question is played out, for example, in the differences between normative and functionalist approaches to public law, as Loughlin puts it (Loughlin, 1992), or between red light and green light theories, as Harlow and Rawlings put it (Harlow and Rawlings, 2009), and also in debates about the proper balance between legal and political constitutionalism (Tomkins, 2005). It is reflected too in doctrinal tensions between judicial control and agency autonomy and between individual and agency interests (Halliday, 2004). Nonetheless, notwithstanding the particular intimacy between public law scholarship and political theory, this chapter argues that another aspect of socio-legal studies - empirical legal research (Cane and Kritzer, 2010) - similarly has long been present in public law scholarship and, of course, feeds into the normative debates of public law. Empirical legal research in public law has not, perhaps, always been recognized as such and it may at times have been something of a poor relation to political theory. However, contrary to scepticism about the general role of empirical legal research in the law curriculum (Bradney, 2010), it is well established as a core feature of the study of public law.

  • [1] I am grateful to Jeff King, Tom Mullen, Maurice Sunkin, Robert Thomas and Adam Tomkinsfor helpful feedback on earlier drafts.
  • [2] The Study of Parliament Group, comprising lawyers, political scientists and parliamentary officers, has contributed to Public Law. See, for example, Study of Parliament Group (1981).
 
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