Judicial Power and the Left - A short response

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Abstract

I have spent the last days reflecting on an excellent collection of short essays ‘Judicial Power and the Left’. The essays examine the relationship of the Left with the judiciary, and are best seen as a reaction against the Left’s (and here I quote from Jon Cruddas MP’s Foreword) ‘retreat towards the law and continental constitutional separation of powers and away from democracy and parliamentary sovereignty’ over the past fifty years.

I thoroughly enjoyed the book. It provides an excellent account of the reasons, and there are many, why the Left is right to be sceptical about, and suspicious of, both everyday judicial processes, and the trend towards what may be termed ‘legal’, rather than ‘political’, constitutionalism. It provides pause for thought in the context of the Brexit debate, as regards both the reasons underlying the vote to Leave, and the possible futures facing the UK in the wake of the referendum vote. I explain the strength of the case the book makes against legal constitutionalism in the first part of this post. In the second, however, I seek to explain the reasons why the book’s central message, that ‘those on the left should not shelter behind an inflated role for the courts, but should instead embrace parliamentary politics in the nation state’, ultimately fails to convince.

My argument proceeds on the basis that the theoretical arguments are, ultimately, very finely balanced. Thus, it is empirical, instrumental, factual and/or practical arguments which prove decisive. In the collection, some of the arguments against legal constitutionalism are overstated. More importantly, the arguments against political constitutionalism are overlooked; as are arguments concerning the way in which the political and legal elements of the constitution overlap and interrelate. In the context of Brexit, I conclude that the prospect of a return to unadulterated parliamentary sovereignty in the UK, coupled with a conscious (and increasingly ignominious) retreat from the constitutional settlement we have and are developing as members of the European Union, will herald nothing but years of self-inflicted economic and social harm. It is, from a Left perspective, far better to stop Brexit, and remain within the current constitutional structure.
Original languageEnglish
Place of PublicationJudicial Power Project website
Publication statusPublished - 26 Apr 2018

Structured keywords

  • Brexit

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