By Marc Johnson, Lecturer in Law (Truman Boddon Law School)
Brexit has been a source of emotionally-charged debate. One point which has received plenty of attention is the sovereignty of Parliament and its relationship with EU membership. It is often explained that the EU’s ability to make laws (which can apply in the UK) is some form of forfeiture of sovereignty. However, this statement has a number of shortcomings, not least that it ignores the election of Members of the European Parliament by the UK, providing (at least to some degree) a democratic mandate to the European Parliament. I will use Schrödinger’s cat to suggest that sovereignty can be present in multiple places and remain intact, allowing the normal operation of both the UK Parliament and European Parliament, without offending a nuanced view of sovereignty. In order to do this, one must cast aside the orthodox views of sovereignty and start with a pragmatic and philosophical approach to Parliamentary Sovereignty as it today. Brexit is akin to lifting the lid of Schrödinger’s box to observe the actual state of sovereignty at a specific point in time, but in doing so it reduces the observers to that of a quantitative measurer, and asks ‘is it dead or alive’ – when, in fact, reality is far more complex than this. (more…)
Although it can be rightly said that Michel Foucault is one of the most influential scholars of the 20th (and dare we say it? 21st) century, it is also easy to affirm that his ideas have always elicited a certain degree of scepticism. A degree of scepticism would be a suave euphemism to describe the reaction that Foucault’s ideas on power, subjectivity, and truth have caused in the legal field. Scholars as diverse as Jürgen Habermas, Duncan Kennedy, and Nicos Poulantzas (to name a few) have accused Foucault of excessively downplaying the role of law in modernity and of culpably disregarding the function of rights in protecting individuals against external interferences – either public or private. This line of reasoning found its most elaborate champions in Alan Hunt and Gary Wickham who, in “Foucault and law” (Pluto Press, 1994), advanced the so-called “expulsion thesis”: Foucault was guilty of having expelled law from the locus of power, depicting the legal discourse as a sort of veneer for real power with no substantive importance in modern societies.
It must be said that, notwithstanding such trenchant critiques, Foucault’s thought has continued to have a huge effect in many legal areas – from criminal law, to labour law, to international law and beyond. It must also be recognised, however, that the trope of the “expulsion thesis” has survived for almost two decades basically unchallenged (at least in the Anglo-Saxon academia), thus gnawing at the foundations of any Foucauldian-inspired reading of the legal field.
My own monograph “A Foucauldian Interpretation of Modern Law” (EUP, 2017), similarly to Ben Golder’s works on this topic – “Foucault’s law” (Routledge, 2009) together with Peter Fitzpatrick and “Foucault and the politics of rights” (SUP, 2015) – addresses exactly this problem, trying to solve the puzzle of the relationship between the legal discourse and contemporary forms of power as described by Foucault. My interest in this question was dictated not only by what I saw as gap in the literature, but also from a more general preoccupation. (more…)
The EU referendum campaign has been wide-ranging; with the debate largely focusing on the economic aspects. Arguments which focus on democracy have, however, tended to be the preserve of the leave campaign. The rallying cry to ‘take back control’ of ‘our’ laws and borders, has become something of a mantra.
My aim here is to assess the leave campaign’s case. I consider the impact which the EU has on the freedom of movement of the UK government; and evaluate the extent to which continued membership of the EU represents a threat to democracy in the UK. (more…)