Lecture notes

Public Law 2

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Public Law

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The University Of Kent (UKC)

Lecture notes of 60 pages for the course Public Law at UKC (Public Law 2)

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Uploaded on March 28, 2025
Number of pages 60
Written in 2022/2023
Type Lecture notes
Professor(s) Payne
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public law 2

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Transformation of the State & Rise Of The Regulatory State

Westphalian Sovereignty – Peace of Westphalia (1648)

- Westphalian State
o Westphalian State Principles –
 Territorial Integrity;
 Specific Borders
 Equality of States;
 All States Are Equal Regardless Of The Size And Power.
 State Consent;
 If Any Other State wants to do Anything In Relating To Another State Or Its
Citizens, That State Must Consent.
 Non-Intervention
 There should be no interference by one state in the affairs of another state.
 (Some Exceptions e.g. Responsibility to protect – Some states have relied on this to
justify intervening in other states to protect human rights))
o The Westphalian state has Supreme Authority within it’s territory.

o The Westphalian State as the Basic Unit of the International Political and Legal System
o Westphalian Sovereignty seen as a COUNTER to hierarchical order of power – as mediator
between BIG and SMALL states
 Big and small states are equal and they are protected from intervention by other states.
 All UN votes are equal for example.
o Westphalian sovereignty is regarded as an important part of the international legal and
political order.

- Erosion of/Challenges to the Westphalian State
o However, there have been CHALLENGES to the Westphalian State in the post-Cold War era.
Its been argued that there has been an erosion of state sovereignty due to “globalisation’s
integrative effects and the proliferation of international institutions, norms and networks”
 Roland Paris (2020); Kofi Annan and the Responsibility to Protect; the European Union
and “mutual interference”
o Examples -
 International Bodies and Networks
 Some areas of state authority have been conferred to other bodies by the state.
o E.g. UN, EU ICC etc
 Informal Networks
 Some functions of state authority are exercised by informal networks.
o Eg. Basel Committee/Financial Action Task Force.
 These are bodies that have developed that have fundamentally impacted how the
nation state governs itself.

, o The globalisation and integration between independent states and has caused a rise of
global problems requiring international institutions to solve them which has caused the
erosion of Westphalian state sovereignty.
 Some argue that state sovereignty is being limited due to the impact of such external
institutions.
 Others argue that the growth of these institutions has not detracted from states power
but has in fact enhanced their power.

- Resurgence
o However, in more recent years, scholars have argued that there is a RESURGENCE and a
REASSERTION of the Westphalian State/State Sovereignty. Three Forces:
 Rise of Illiberal States in opposition to the Principle of Interventionism
 This has been seen to defend the principles of territoriality which are central to
the idea of the Westphalian State.
 E.g., Russia/China opposing western intervention.
 Right wing Populist Movements – “taking back control”
 E.g. Brexit Etc.
 These movements often make assertions and favour nationalistic ideals that are
often reinforce the principles of the Westphalian state.
 Leftist Resistance to Global Capitalism
o These developments have been argued to claim that the idea that the Westphalian state is
exaggerated.

o Evidence of the Resurgence of Westphalianism
 US election in 2016 and Trumpism – “Build a Wall” mantra;
 BREXIT in 2016 – “Taking our Country Back” mantra;
 Poland and Hungary response to EU policy on refugees
 Russia’s response to Liberal Transnational NGOs
 Russia and China’s criticism of NATO intervention in Libya and subsequent blockage of
intervention in Syria –
 Strong reassertion of Westphalianism
 Strong backlash against Globalisation in liberal democracies –
 jobs, migrants, etc
 (see how the LEFT opposed Global Capitalism while the RIGHT WING POPULISTS
railed against GLOBAL CAPITALISM and MIGRANTS – Roland Paris calls them
“strange bedfellows”)

o Effects of the Resurgence of the Westphalian State

,  Strengthening of Border Controls
 Caused by Covid but also in response to immigration.
 Restrictions to information flows
 Particularly evident in Illiberal states where there has been the restriction on
access to information.
 E.g. Chinese Firewall etc
 Restrictions to technological innovations –
 e.g. cryptocurrency
 Trade Protectionism
 Countries raising barriers to free trade which had previously been prevalent
evidenced by the creation of the WTO and other regional trading networks E.g. EU
NAFTA.
 E.g. Brexit
 Withdrawal from international and regional networks and initiatives –
 Brexit
 Withdrawal from the ICC on the basis that it infringes on the sovereign status of
the nation.
 Climate Change – US withdrawal from the Paris Climate Accord.

Older Kinds of Sovereignty

- Roland Paris argues that while this “resurgence narrative” is right, it does not fully explain what
is happening.
o He sees instead, the return of OLDER VERSIONS OF SOVEREIGNTY
- These are EXTRALEGAL and ORGANIC versions of SOVEREIGNTY
o They pre-date the Westphalian State and have endured beyond it

- EXTRA-LEGAL SOVEREIGNTY –
o Where the sovereign is Above the law
o Aligns with philosophers such as JEAN BODIN and THOMAS HOBBES.
- ORGANIC SOVEREIGNTY –
o Organic unity of the state –
 A Collective belief in cultural uniqueness, superiority and towards a common destiny.

- These forms of sovereignty are distinct from WESTPHALIAN SOVEREIGNTY.
o They have no conformity with Westphalian notions of the State –
 They have no interest in notions of equality, non-intervention, consent, territorial
integrity.
o These forms demonstrate instead aspects of Supremacy and lack of legal constraints &
Right to Intervene.

- If Westphalian Sovereignty is a counter to hierarchies of power among states, Extra-legal and
Organic Sovereignties legitimise these hierarchical orders.
o Implication: These other forms provide the most powerful states a ‘Licence to Dominate’
and enhance themselves.

, - Roland Paris argues people should be more concerned that there is a resurgence of these other
forms of sovereignty, which are far more, and see what's in far more damaging to the
international order.

Westphalian State – The Westminster Model – Traditional Sovereign State in the UK

- Features
o Constitutional Monarch
o Parliamentary sovereignty
o Strong cabinet government
 Highly Centralized
o Accountability to the people through regular elections and conventions like ministerial
responsibility their ministries/cabinet collective responsibility.
o Accountability to Parliament
o Majority party control of the executive and governance by central government
o Non-political and hierarchically-structured and centralised civil service
o Independent Judiciary and Judicial independence
 A check on the powers ( the executive in particular).

Regulatory State

o There is an argument that there has been a shift from the traditional Westminster Model into a
regulatory state.
o Shift to the Regulatory State
 According to Michael Moran, there have been significant changes to the organisation of
British Government, especially in the last quarter of the 20th century.
 This has been labelled the REGULATORY STATE
 (This is also international other countries often have similar movements)
 “The most important is at the heart of our study: the establishment of the independent
regulators, acting at arms-length from ministers, empowered and constrained by their
own statutory authority but often responsible for issues hitherto dealt with by
government departments. Traditional mechanisms of accountability may therefore
have to be reinforced, or reviewed and adapted, where necessary, to the new
arrangements”.
 Frank Vibert, A World of the Unelected
 Highlights issues by the rise of the regulatory state, this is that these changes from the
Westminster model have not been accompanied by changes in the principles of public
law that ensure accountability of the holders of power.

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