Book contents
- Local Meanings of Proportionality
- Cambridge Studies in Constitutional Law
- Local Meanings of Proportionality
- Copyright page
- Contents
- Acknowledgements
- 1 Proportionality as a Cultural Practice
- Part I Questioning the Success of Proportionality
- Part II Great Expectations
- 5 Searching for a Legal Science
- 6 Searching for an English Public Law
- 7 Searching for a ‘Species of Sympathetic Magic’
- Conclusion of Part II
- Part III European Integrations
- Conclusion
- Bibliography
- Index
6 - Searching for an English Public Law
from Part II - Great Expectations
Published online by Cambridge University Press: 08 July 2021
- Local Meanings of Proportionality
- Cambridge Studies in Constitutional Law
- Local Meanings of Proportionality
- Copyright page
- Contents
- Acknowledgements
- 1 Proportionality as a Cultural Practice
- Part I Questioning the Success of Proportionality
- Part II Great Expectations
- 5 Searching for a Legal Science
- 6 Searching for an English Public Law
- 7 Searching for a ‘Species of Sympathetic Magic’
- Conclusion of Part II
- Part III European Integrations
- Conclusion
- Bibliography
- Index
Summary
In this chapter, I argue that proportionality has represented a fusion of substance and form that is strange to the game-like nature of the common law. It has embodied a method of review, and a way of legal thinking more generally, situated in diametrical opposition to Diceyan analytical positivism. Precisely due to its anti-Diceyan meaning, proportionality has been promoted as a principle that could establish coherence in English public law through the recognition of minimum substantive values. By using proportionality language, English lawyers have sought a little bit of myth and ritual in judicial review. Hence, the spread of proportionality in English public law should be read against the background of the rise of common law constitutionalism. In this respect, the HRA officialised and enhanced more subtle and progressive cultural transformations. The spill-over dynamic of proportionality expresses the continuing search for rationalism and myth in the ongoing construction of English public law.
Keywords
- Type
- Chapter
- Information
- Local Meanings of Proportionality , pp. 187 - 222Publisher: Cambridge University PressPrint publication year: 2021