Jamie McGowan

j.mcgowan.1@research.gla.ac.uk

Research Summary

A NATURAL LAW DEFENCE OF POLITICAL CONSTITUTIONALISM

In the early modern period, the marriage of classical liberalism and natural law theory gave birth to what is now known as legal constitutionalism. Contrasted with political constitutionalism, where the political sphere has the final word on legislation, legal constitutionalism vests this conclusive power in the legal sphere, where law is ultimately determined by judges ruling in individual cases. Legal constitutionalism is often viewed as the brainchild of natural law theory, but is that really the case? The earlier “classical” natural lawyers were actually very suspicious of judge-made law. Since law was meant to be formed for the common good, to them it seemed counter-intuitive to decide law upon the facts of individual cases. Is it possible that classical natural law theory (CNL) is in fact more synonymous with the conclusions of political constitutionalism? This project will consider how CNL’s common-good focus would impact modern constitutional debates in a way that differs from the individualistic focus put forward by liberal natural lawyers.

Despite the warnings of famed political constitutionalists such as Griffith, Human Rights Law has become an orthodox component of the British Constitution, meaning that the judiciary is more powerful than it has ever been before. Political decisions that were once the prerogative of politicians have been passed into the hands of judges. In Scotland particularly, where the courts have the power to override parliamentary legislation, the Scottish constitution is beginning to resemble a legal constitution.

My hope is that this research will make a new case for curbing judicial power, but from the natural law perspective. Political constitutionalism and judicial scepticism are fields currently dominated by republicans such as Bellamy and socialists such as Griffith. However, this research will hopefully make political constitutionalism a more ecumenical affair, where judicial power can be critiqued from a traditionalist or socially conservative perspective.

Moreover, Scots Law is a system which is normatively rooted in the classical legal tradition. As such, this project will contribute to the debate about judicial power in a way that is compatible with the origins of the Scots legal tradition, where law was historically determined, not by judges, but by parliament.

Publications

Jamie McGowan, ‘Veil Piercing in the UK: An Evolution of Doctrinal Approaches’, [2019] De Lege Ferenda 92

Supervisors

Grants

University of Glasgow Postgraduate Talent Scholarship (£2,000)

South Lanarkshire Council Throughcare Scheme (£3,000)