The Programme for the Foundations of Law and Constitutional Government supports leading scholarly work on the nature of law and its social, political and moral foundations, the shape of sound constitutional order and constitutional principle, and the challenges to realising the rule of law and constitutional government. Based in the Faculty of Law, the Programme convenes seminars, workshops and conferences examining foundational questions in constitutional law and theory, and in legal and political thought more broadly. The Programme also hosts outstanding doctoral students and visiting scholars, aiming to contribute to our understanding of the nature and value of human flourishing and the rule of law.

Publications

  • N. W. Barber, The Constitutional State (Oxford University Press 2010)
    DOI: https://www.amazon.co.uk/Constitutional-State-Oxford-Theory/dp/0199585016
    ISBN: 9780199585014
  • R Ekins, The Nature of Legislative Intent (Oxford: OUP 2012)
    ISBN: 978-0199646999
  • M Köpcke, Legal Validity: The Fabric of Justice (Hart 2018) (forthcoming)
    Critical human interests are affected on a daily basis by appeal to past decisions deemed to be 'legally valid'. They include statutes, deportation orders, judgments, mortgage contracts, patents and wills. Through the technique of validity, lawyerly reasoning settles morally pressing matters in a way that largely bypasses moral argument. Legal philosophy has paid considerable attention to validity criteria, but it has neglected to explore validity’s point: whether, and if so how, the pervasive technique of validity can contribute to a legal system’s ability to realise justice and human rights. This book shows that validity can help a political community to foster justice precisely because validity does not primarily turn on moral considerations. Validity serves to both allocate, and limit, a distinct kind of power, a power that is key to forging valuable forms of enterprise and commitment in pursuit of individual and collective self-direction. By entrusting the capacity to decide to those who, in justice, ought to bear it, validity can enable persons and institutions to rally the resources and opportunities that only large-scale behavioural convergence can afford, thereby weaving a fabric of just relationships within the systemic framework of law.
    ISBN: 978-1-84946-686-8
  • N. W. Barber and Richard Ekins , 'Situating Subsidiarity ' (2016) 61 American Journal of Jurisprudence 5
  • D Burbidge, 'Security and Devolution in Kenya: Struggles in Applying Constitutional Provisions to Local Politics' (2017) 3 Strathmore Law Journal 131
    The Fourth Schedule of the Constitution of Kenya (2010 Constitution) retains security as a function of National Government. At the same time, the 2010 Constitution creates 47 county governments with considerable autonomy in public service provision. Many county governors have demanded a say in the deployment of security services because of the inequality of security provision throughout Kenya’s history. While the 2010 Constitution is clear, however, in not providing much of a local say in the way security is deployed, it is found that in their day-to-day activities security officials depend on a close relationship with local politicians. This article examines constitutional provisions in the context of the history of security in Kenya and its practical deployment under the new political framework. It is argued that the long-term reasons for the inconsistent and insensitive use of security forces endure in contemporary dilemmas over the relationship between national security provision and local politics. Regardless of what the 2010 Constitution says, successful deployment of security depends on cooperative local political relations. Attempts to establish these links can often lead county governors to overstep their mandates, however, contravening the 2010 Constitution. We are therefore not only witnessing a transformation of the political structure through devolution but also transformation of the negotiated structure of security’s deployment.
  • D Burbidge, 'The Inherently Political Nature of Subsidiarity' (2017) The American Journal of Jurisprudence
    DOI: https://doi.org/10.1093/ajj/aux017
    There is an essential contradiction in contemporary notions of subsidiarity. On the one hand, subsidiarity appeals to the ability of local bodies to engage in their own decision-making; on the other, subsidiarity employs a meta-explanation for appropriate levels of decision-making authority. In fact, therefore, the meta-explanation is assumed to provide a non-partisan basis for identifying when decision-making power should be exercised at a primary level (e.g., by representatives of the local association itself) and when at a subsidiarity level (e.g., by the state), assuming as a premise what needs to be proved as a conclusion. By making such an assumption, the criteria for who gets to decide are taken away from primary actors themselves, limiting the fullness of their political involvement. The answer lies in recognizing that any meta-explanation for the theory of subsidiarity should be fully articulated as part of the democratic process and remain open to being questioned and challenged. The different intentions that lie behind switches to decentralization leave their mark on the nature of interference in sub-state units, proving that it is false to treat a principle of subsidiarity as politically neutral and of equivalent value wherever deployed. The meta-explanation of the criteria for aggregating or disaggregating power is something engaged with by citizens who do subsidiarity as a political practice. They take forward a view of appropriate decentralization in accordance with what they think the state should be doing and what associational groups should be doing. This at times yields priority to larger organizations for coordinated pursuit of some goods over others but does not surrender definitional discretion on the criteria for aggregating power. Defining the basis on which power is made hierarchical in society is part of the practice of doing subsidiarity, rendering subsidiarity by nature inherently political.