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The work of the mid-Victorian jurist, AV Dicey, has had a remarkable influence on British constitutional thought, not least in establishing the orthodox framework within which modern constitutional lawyers continue to work. That legal positivist framework has, however, recently been challenged by jurists advocating what is generally called common law constitutionalism. Accepting the core of sense in Dicey’s account, their objective has been to revise some of the jurisprudential underpinnings of his framework for the purpose of showing that the dominant characteristic of the British system is not sovereignty but legality. Mark Walters now builds on this revisionary work by offering a new historically informed study of Dicey’s Law of the Constitution, which is designed to show that the orthodox interpretation of Dicey as a legal positivist is itself misconceived. Walters argues that, properly understood, Dicey had a more nuanced appreciation of the relationship between sovereignty and legality than is commonly appreciated. This review article examines Walters’s exercise and assesses its contemporary significance.

The legal idea of the state is commonly misunderstood. In this note, the nature of the concept is explained and its significance for modern legal thought presented. Drawing on the distinction between sovereign and sovereignty, it is argued that the state-an idea that links territory, authority and people in an intelligible scheme-is the foundational concept that enables lawyers coherently to engage with the issue of political authority.

Glossing a passage from Benjamin Constant’s Reflections on Constitutions, this article first assesses the roles performed by silences, gaps, and abeyances in constitutional texts and then examines recent initiatives that seek to fill those silences. The initiatives to fill those silences are evaluated by contrasting three conceptions of modern constitutions: the constitution as a framework for continuing political negotiation, the constitution as an order of values, and the constitution as facilitator of an evolving administrative order. The first, the framework conception, highlights the importance of political practices and in particular of the deliberative role of the legislature, the second, the value order conception, accentuates the moral dimension of constitutions and promotes the judiciary’s role as guardian of constitutional values, and the third, the administrative order conception, emphasizes technical efficacy and the key role of the executive in promoting a governmental agenda. The article concludes by raising questions about those recent approaches that seek the elimination of constitutional silences.

The article outlines a simple thesis: that international investment arbitration – pursuant to regional and bilateral investment treaties – offers the clearest example of global administrative law, strictly construed, yet to have emerged. We present this thesis by explicating four key features of investment treaties: they permit investor claims against the state without exhausting local remedies; they allow claims for damages; they allow investors to directly seek enforcement of awards before domestic courts; and they facilitate forum-shopping. Our argument is that, owing to this unique conjunction of features, the regulatory conduct of states is, to an unusual extent, subject to control through compulsory international adjudication. Having highlighted these features, we then claim that investment arbitration is best analogized to domestic administrative law rather than to international commercial arbitration, especially since investment arbitration engages disputes arising from the exercise of public authority by the state as opposed to private acts of the state. Further, we claim that the linkages between investment arbitration and domestic legal systems are more direct and more closely integrated than other forms of international adjudication in the public sphere. For these reasons, we argue that the emerging regime of investment arbitration is to be understood as constituting an important and powerful manifestation of global administrative law.

Of these innovative restatements, the most influential would appear to be the claims of 'common law constitutionalism'. This school of legal thought argues that the common law is a repository of the basic rules of governmental authority, that these common law rules can be understood to provide a framework of rights that operate to protect liberty, and that the judiciary is now becoming conscious of its duty to rework constitutional fundamentals by fully explicating the meaning of these rules in legal-rational terms.4 This is not the occasion for subjecting common law constitutionalism to general critical assessment.5 But its recent

Constitutional theory has recently been undergoing a remarkable revival. For most of the 20th century the subject had been in decline, as the attention of scholars turned away from the constitutional forms and towards the social and economic tasks of government and after 1989, once liberal democracy had apparently been accepted as the only legitimate constitutional framework, it appeared to be on its last legs. The entire modem project of devising imaginative schemes for conceiving the ways in which people form a political unity organized through a governing framework was reaching its terminus. All that remained was a set of technical questions driven by the need to ensure effective co-ordination between the established rule-making, rule-executing and rule-interpreting agencies of the state. In such circumstances, the aim of this article cannot be simply to offer a sketch of the main themes in constitutional theory during the last 25 years of publication of the Journal; it must also proffer an explanation for the subject's recent revival. My argument will be that the turning point for constitutional theory comes only during the 1990s, and is driven by evident limitations in the solutions posited by the application of liberal political philosophy to constitutional questions. Many of the difficulties flow from tensions inherent within liberal thought, such as between freedom and belonging and between economic and political conceptions of liberalism. Others are more deepseated and go to the fundamentals of liberal convictions about the nature of the state. But before turning to these questions, the subject of the inquiry must be specified. What are constitutions? What does it mean to theorize about constitutions?