Analítico de Periódico
MURKENS, Jo Eric Khushal
Preservative or transformative? : theorizing the U.K. Constitution using comparative method / Jo Eric Khushal Murkens
The American Journal of Comparative Law, v.68 n.2 (Summer 2020), p.412-440
DIREITO CONSTITUCIONAL / Reino Unido, CONSTITUIÇÃO / Reino Unido
The complexities of the United Kingdom’s decision to withdraw from the European Union while simultaneously honoring its prior commitments to its decentralized, autonomous, and constituent regions have put constitutional questions back on the map. The dominant approach analyzes these questions premised on the “preservative” view of the constitution. This view prioritizes the stability and continuity of the institutions in Westminster (Parliament) and Whitehall (central executive). However, the preservative view of the constitution is theoretically and practically deficient as it cannot give an account of the multipolar and decentralized developments of the past twenty years. Another interpretation regards the legal and political changes to the constitution as “transformative.” This view accentuates the fragility of the U.K. constitution due to a plurality of constitutional rules and the ongoing processes of devolution of powers within multilevel systems of government. This Article discusses that evolution of the U.K. constitution through the prism of comparative constitutional law and its appropriate methodology. The preservative model of the constitution favors a universalist method, whereas the transformative model requires a contextualist method. I argue that the experience of supranational (European Union) and infranational (devolution) power sharing has fundamentally altered the United Kingdom’s central constitutional concepts. To stabilize its fragmentary forces, the United Kingdom needs to adopt concepts that reflect the state as divided, the constitution as transitional, sovereignty as an attribute of the state rather than Parliament, and democracy as conflicted. Nothing less than the future of the United Kingdom as a state is at stake.