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Accountability in the Contemporary Constitution$
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Nicholas Bamforth and Peter Leyland

Print publication date: 2013

Print ISBN-13: 9780199670024

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199670024.001.0001

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Accountability to Law

Accountability to Law

(p.77) 4 Accountability to Law
Accountability in the Contemporary Constitution

T R S Allan

Oxford University Press

This essay investigates the idea of legal accountability, applicable to public authorities, by reflection on some major debates within constitutional theory. Theories of legal and political constitutionalism are compared and debate over the constitutional foundations of judicial review is examined. It is argued that a largely instrumentalist view of law, in tune with legal positivism, has hindered our grasp of ideas critical to the principle of accountability. A view of the rule of law as a fundamental safeguard of freedom is defended: legality is an important moral value linked to other democratic political values. Accountability to law is more than compliance with positive law: it means respect for principles of legality and legal process that characterize the British constitution, interpreted as the charter of a free and democratic legal order. Judicial review of administrative action, defending fundamental rights, is justified by a legal constitutionalism rooted in genuinely republican conceptions of law and liberty.

Keywords:   constitutional theory, judicial review, the rule of law, legality, legal constitutionalism, political constitutionalism, legal positivism, principle of accountability, legal process, administrative action

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