1 Public Law and the Scientific Quest 1

The Distinctiveness of Public Law 2

The Science of Legislation 4

The Analytical Method in Public Law 13

The Rise of Formalism 17

Only Connect... 23

2 Public Law and Political Theory 29

The Death and Rebirth of Political Theory 29

The Rebirth of Political Theory and the Study of Public Law 32

The Value of Political Theory 34

Theories as Maps 37

The Journey 38

3 Interpretation in Public Law 41

The Common Law Mind and the Order of Things 42

Public Law Teaching and the Common Law Mind 47

The Fact-Value Distinction 50

Theory and Practice 52

The Interpretative Approach 57

4 The Structures of Public Law Thought 58

Styles of Public Law Thought 58

The Ideal Types of Normativism and Functionalism 59

Stages in Understanding Public Law Thought 61

5 Foundations of Normativism 63

The Conservative Dimension 64

Oakeshott and political thought 64

Epistemological foundations of political thought 64

Rationalism in politics 69

Government and law 71

The State 74

Oakeshott and conservatism 76

The value of Oakeshott's political theory 79

The Liberal Dimension 84

Hayek and political thought 84

Epistemological foundations of Hayek's thought 85

Law and government 88

Conservatism or liberalism? 89

The liberal ideal of constitutionalism 91

Hayek and liberalism 93

Tensions within liberalism 99

The Character of Normativism 101

6 Foundations of Functionalism 105

Sociological Positivism 106

Comte's thought 107

The contribution of Durkheim 109

Duguit on government and law 110

The French tradition of sociological positivism 112

Evolutionary Social Theory 113

Spencer and evolutionary theory 114

Fabianism 116

New liberalism 119

Evolutionary theory and collectivism 123

Pragmatism 126

Beyond empiricist epistemology 127

The work of Dewey 128

The American legal realist movement 129

The value of pragmatism 132

The Character of Functionalism 133

7 Traditions of Public Law Thought 138

The Dominant Tradition in Public Law 139

Dicey's Theory of Public Law 140

Sovereignty, democracy, and law 141

Continuity and change within Dicey's theory 146

The frailty of Dicey's theory 153

Dicey and the shaping of the dominant tradition 156

Dicey and His Times 159

The Normativist Challenge 162

The Functionalist Response 165

The challenge to Dicey's theory 165

The functionalist style 168

Networks and linkages 174

The Growth of Administrative Law 176

8 Contemporary Thought in Public Law 182

Normativism: The Conservative Variant 184

The Varieties of Functionalism 190

Functionalism: an idealist variant 191

Functionalism: an empiricist variant 197

Functionalism: a contemporary perspective 201

Functionalist thought 205

The Emergence of the Liberal Variant of Normativism 206

9 The Triumph of Liberal Normativism? 211

Conservatives and Liberal Normativism 212

Socialists and Liberal Normativism 214

The Movement for Constitutional Reform 220

One Step Forward, Two Steps Backwards? 224

Philosophy and liberal democracy 224

Social democracy and politics 227

The triumph of liberal normativism 228

10 Public Law in the Face of the Future 230

The Crisis in Public Law Thought 231

Mapping the Landscape 240

Revitalizing the Functionalist Style 243

Public Law and Legal Theory 246

The Widening Gyre 250

Facing the Future 257

Bibliography 265

Index