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Constitutional Theory$
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Geoffrey Marshall

Print publication date: 1980

Print ISBN-13: 9780198761211

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198761211.001.0001

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The Law and The Constitution

The Law and The Constitution

(p.3) I The Law and The Constitution
Constitutional Theory

Geoffrey Marshall

Oxford University Press

This chapter focuses on constitutional law and describes the disputes which merged into a more general question about the eligibility of constitutional law to count as positive law. First, it describes John Austin's characterization of constitutional law. Austin held that laws were commands issued by sovereign bodies, and it was for him that constitutional laws which defined the sovereign body could not be positive laws pure and simple. It then discusses Maitland's criticisms of Austin's notion of the English Sovereign. Finally, it describes Dicey's doctrine on constitutional law and its critics. Dicey's thesis was that constitutional law consists only in those rules affecting the structure and powers of government which are enforceable in courts of law. This exclusion of what he described as ‘conventional rules’ has been strongly criticized by a number of writers such as Ivor Jennings and Dr. A. L. Goodhart.

Keywords:   constitutional law, Austin, sovereign bodies, Maitland, English Sovereign, Dicey, conventional rules

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