This Thesis Has Been Submitted in Fulfilment of the Requirements for a Postgraduate Degree (E.G

This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. THE PROBLEMS AND SOLUTIONS OF CHANGE IN CONCEPTIONS OF THE RULE OF LAW IN THE SEVENTEENTH CENTURY: EVOLUTION OR REVOLUTION? PAUL BURGESS Doctorate in Law The University of Edinburgh 2019 ii ABSTRACT / LAY SUMMARY The Rule of Law is one of the most important, and most contested, political concepts. The ideas of thinkers—who are frequently taken to be responsible for canonical statements relating to the Rule of Law—are frequently used to illustrate the existence of similarities and differences that both identify what the Rule of Law is and delineate the conceptual boundaries of the concept. In citing these thinkers, the underlying assumption is that the Rule of Law can be seen as a single, diachronically conceivable, concept that has evolved over time. I question both of these practices. Considering Rule of Law conceptions in a superficial sense—by considering only thinkers’ accounts in the absence of their authoring context—fails to appreciate nuances and inflections that can fundamentally alter perceived similarities or differences; where various canonical accounts can no longer be seen as reflecting the same ideas, the assumption of a single, evolving, idea of the concept of the Rule of Law as drawn in contemporary conceptual discourse cannot be sustained. I conduct a contextualist examination of two accounts frequently associated with the idea of the Rule of Law: Hobbes’s Leviathan and Locke’s Two Treatises of Government. To place these in context, I adopt a problem / solution approach. I consider their texts as reflecting solutions to problems that existed in their societies at the time they were writing. To expose the associated problems, I consider pamphlets that were popular at that time. By clearly identifying and associating the Rule of Law solutions with the relevant societal problems, a more nuanced appreciation of the accounts is achieved. iii By identifying inflections in Rule of Law solutions, it becomes possible to disambiguate between superficially similar ideas. By disambiguating in this way—and by illustrating superficially similar accounts are fundamentally different in their nature—I argue there is no necessary conceptual connection between the Rule of Law accounts provided by Hobbes and Locke. I also argue that this difference is sufficient to show that, at least between these two ‘canonical’ accounts, the assumption that the Rule of Law has evolved cannot hold; change across Hobbes’s and Locke’s conceptions of the Rule of Law has occurred not by evolution, but by revolution. iv DECLARATION I declare that this thesis has been composed solely by myself and that it has not been submitted, in whole or in part, in any previous application for a degree. Except where stated otherwise by reference or acknowledgment, the work presented is entirely my own. This thesis contains two chapters that reproduce—in an amended form that addresses the original argument contained in this thesis—arguments that have previously been published in law journals. The chapters, and the journals, are: Chapter 1: Neglecting the History of the Rule of Law: (Unintended) Conceptual Eugenics. The substantive content of this chapter, and the argument, was published as: Paul Burgess, Neglecting the History of the Rule of Law: (Unintended) Conceptual Eugenics, 9 Hague J. Rule Law 195–209 (2017). I have obtained permission to reproduce this chapter. Chapter 3: The Rule of Law: Beyond Contestedness. The substantive content of this chapter, and the argument, was published as: Paul Burgess, The Rule of Law: Beyond Contestedness, 8 Jurisprudence 480–500 (2017). This article is open access and I retain the copyright. No permission is needed to reproduce it as I cite the article source. Signed………………………………… Date………………28 / 01 / 19 v vi ACKNOWLEDGEMENTS I commence my thesis with two words: ‘Origins matter.’ This is never more true than in relation to this work. Whilst the research is all mine, my work has been supported, inspired, motivated, and improved by the people around me. I owe them all a great deal of thanks. My best friend, who is also my wife, has supported and encouraged me through this entire process. Without her support—and I don’t just mean financial!—I would not be in a position to write these few words following the completion of the other 80,324. Hal and Spike have only ever known a dad who is at school; whilst having a dad with a job will be a shock, I’m sure they’ll forgive me for that. Whilst it may sound like a cliché, they inspire me every day. They inspire me to learn, and to know more, and to stay curious. One day, I hope they’ll understand why I spent so many weekends locked away in the study. I also must thank my parents; whilst it may be trite to point it out, I wouldn’t be here without them. No mention of support would be complete without making reference to the generous financial support that I have received from both the Modern Law Review, and the Institute of Humane Studies. Two years of scholarships from the MLR, and a year’s fellowship as a Bernard Marcus Fellow from the IHS aided the financial stress on me, and the commensurate burden on my family. The organisations’ generous support of my academic endeavour was not only gratefully received, but also meant I could focus on my work. My thesis would not be complete, and maybe wouldn’t have been completed at all, if it wasn’t for their assistance. vii I’ve been fortunate enough to receive academic motivation and assistance from a number of quarters. At the top of this list are, of course, my supervisors. Claudio: thanks for pressing me to be ever clearer, and for trying to make sure that when I’m wrong at least I’m clearly wrong. Paul: I will continue to defer to your expertise in relation to the spelling of ‘Aristotelian’, but it still looks strange to me! This journey began on the first day of my LLM at NYU with a Rule of Law class taken by Jeremy Waldron and expanded to a thesis that he was kind enough to supervise. The world of academia can blame Jeremy for my massive over-enthusiasm about my topic. I have also been enormously fortunate to have the chance to meet and share ideas with Brian Tamanaha. Brian’s immediate academic kindness and generosity to a near-stranger—albeit an enthusiastic one—who happens to share a research interest has been a constant reminder about what academia should be. The bounty of riches continues through the many (many) chances that I have had to pose ‘just one quick question’ to Neil Walker. His constant refusal to meet my quick questions with quick answers has been a particular joy and a constant reminder of not only how far I have to go on my academic journey, but also as a reminder of what I should do and how I should be once I get there. I can only hope that in my own future I can provide a fraction of the motivation, and can show the same kindness, that I have been fortunate enough to receive from each of these individuals. Of course, these are not the only members of the academy that I have been motivated by. From my first weeks in Edinburgh I had the great joy to meet and then foster a mutual caffeine and cake addiction with Chloë Kennedy. The joys of social media will make keeping in contact easy, but I’ve viii yet to figure out how to share coffee via an iPhone (without causing electrical problems). No mention of motivation would be complete without mentioning the Legal Theory Group members and, in particular, the passionate, determined and tireless convenors of that group during my time in Edinburgh: Joaquín, Rick, Lucas, and Martin. The substantial requirements of the role—whilst acknowledged by many—are largely under-appreciated. The events, seminars, Festivals, and WiP sessions over the last few years have given me more ideas (and headaches) than I can care to mention. I have also been enormously fortunate to have been examined by two academics that I respect and admire. Maks Del Mar and Cormac Mac Amhlaigh took a considerable amount of time out of their schedules to deeply engage with my argument and to probe aspects of my thesis that resulted in both a stimulating viva and a more convincing argument on the page. I cannot thank them enough for their time, attention to detail, and the academic curiosity that they gave to my work. Finally, it is safe to say that I would still be languishing in the academic doldrums with ill-conceived and half-formed ideas if I hadn’t been pushed, pressed, prodded and persuaded to consider, and re-consider, my thinking in ever greater detail by my partner-in-kebabs, Lucas.

Load more