JOURNAL OF POLITICS &CONSTITUTIONAL STUDIES Department of Politics & International Relations Oxford University

Volume 1 No. 1Hilary 2015

Editor in Chief Joshua JesudasonEditors Maximillian Afnan, William Barnes, Sebastian Bates,

Christopher Casson, Theophilus Kwek

Front Cover

The Great Hall of Winchester Castle, which is part of the Winchester Combined Court Centre.It has witnessed many famous cases, including Sir Walter Raleigh's conviction in 1603 and the

conviction of six members of the Provisional IRA in 1973. The Round Table, a 13thCenturydepiction of King Arthur's, reflects the nexus of political and juridical space in this room,and nascent constitutional understandings that mirror the inaugural issue of our Journal.

Creative Commonshttp://www.flickr.com/photos/neilsingapore/2790713126

https://creativecommons.org/licenses/bync/2.0/

CONTENTS

1. Editor's Note2. Keeping the Courts Open: The CommonLaw Right to Justice andParliamentary Sovereignty3. The Case for Decentralization in Developed and Developing Worlds4. The Republic of Corsica and its Influence on Modern Democracy5. Fearful Symmetry: Russia, Europe, and the East6. The End of our Unwritten Constitution?7. Democratizing the House of Lords: The Coalition's Failure and its Future

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Prevailing conventional wisdom tells us that the world of politics is not onlychanging but that it is changing faster than ever before. Domesticdevelopments in microconflicts can have internationalized, profound impactsover time, and contestations over the very organizing principles of states their constitutions are of paramount political importance these days.

Perhaps one of the most powerful lessons learnt from studying both the waythat the world is changing and the political forces that are shaping thesechanges is that traditional disciplinary silos are analytically unhelpful forcomprehending the world around us. Researchers in politics andconstitutional studies have recognized this and are adapting thus, academiaand policyelites evolve dialogically, as do the events that they study.

Some time in 2014, a group of undergraduates at Oxford recognized that therewas no interdisciplinary platform where they could be part of this process ofstudying political phenomena, articulating responses, and shapingdevelopments. Undergraduates have the capacity to make meaningfulcontributions to the evolving literature on political issues, which bridgestheory and practice by its very nature, but which adopts a researchbased,analytical and critical approach. This publication is a response to thatidentified problem. It is but one contribution to the conversations that areshaped by, and shape, the way we see the world, and forces that impact it.

Within these pages, you will find the work of undergraduates which haslargely coalesced around issues of democracy a system of thoughts, valuesand institutions which some might argue is imperiled, and yet, which isalmost universally invoked in the world of politics and constitutions. It is apolitical concept of utmost salience. Fundamental themes that bridge thevarious pieces in this issue include critical assessments of democracy and itsorganizing institutional principles, or constitution, and the values andidentities that constitute it.

EDITOR'S NOTEJoshua Jesudason

Candidate, BA (History and Politics)joshua.jesudason@balliol.ox.ac.uk

Christopher Casson here argues that a codified constitution would breach thespirit of the UKs democracy, while Sebastian Bates posits that that democracyenshrines, if implicitly, certain humanitarian values. Natan Bram historicizesplans for reform of the system, paying specific attention to decentralizingpower in the Upper House in the UKs bicameral legislature, while OliverPhillips takes the theme of decentralization further and analyzes itcomparatively between states. MarcAndre Fiorina traces the theoretical basisfor these devolutionary principles, and liberal democracy more generally, toRousseau, and its initial application in Corsica, while Alex McGann brings asimilar analysis of political values and identity to bear on internationalrelations between the EU and Russia as played out in Ukraine.

The world is indeed changing, and Politics and International Relations, asacademic fields are changing with it. This publication will, we hope, be a partof a wider endeavour to democratize that simultaneous process of studyingand shaping the political world, by extending the opportunity toundergraduates who are willing to take part in it.

Joshua JesudasonEditorinChiefFebruary 2015

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In the nineteenth century, it was widely believed that the constitution of theUnited Kingdom was among the best in the world. Mr Podsnap was not alonein his sentiments when he noted that We Englishmen are Very Proud of ourConstitutionIt Was Bestowed Upon Us By Providence. No Other Country isso Favoured as This Country. [1] By the late twentieth century, however, thisrosy vision of the constitution had lost its lustre. The dictum that everythingis permitted except what is expressly forbidden, [2] which adequatelysummarises the traditional position taken in English law with respect toindividual freedoms, did not seem to offer the same protection offundamental rights as the European Convention on Human Rights. At thattime, the decisions of British courts, which still largely considered cases interms of residual liberties rather than positive rights, were reversedembarrassingly often by the European Court of Human Rights, and theHuman Rights Act 1998 (HRA) was thus introduced, in part, to stem thenumber of cases being brought to Strasbourg.

While the HRA has undoubtedly succeeded in allowing for more humanrights litigation in British courts, it has also stifled interest in the common lawas a wellspring of rights protection. In his recent judgment in Kennedy vCharities Commission, the Supreme Courts Lord Mance put this issue clearly.Since the passing of the Human Rights Act 1998, he wrote, there has toooften been a tendency to see the law in areas touched on by the Conventionsolely in terms of the Convention rights. This criticism necessarily impliesthat for most Convention rights a homologue exists in common or domesticstatute law. This seems to be borne out by the evidence: for instance, LordMance points out that there is little difference between the protection affordedto freedom of speech by English law and by Article 10 of the ECHR. [3]

KEEPING THE COURTS OPEN:THE COMMON-LAW RIGHT TO JUSTICE AND

PARLIAMENTARY SOVEREIGNTYSebastian C. Bates

Candidate, BA (Jurisprudence)sebastian.bates@keble.ox.ac.uk

The concept of common law rights may seem particularly exciting in that itoffers a way for human rights litigation to proceed domestically even if theHRA is repealed. However, there is a widespread view that common lawrights occupy a precarious position in English law which limits their impactwhen compared to the protection of the Convention. Judges treat commonlaw rights as instruments of statutory interpretation, presuming that ifParliament intends to limit them it will do so in explicit language. While thismeans that courts will not set them aside unless forced to by unambiguouslanguage, it also means that these rights are constantly vulnerable to beingcurtailed by clear Parliamentary intention. [4] A further complication exists inthe fact that it can be difficult to identify common law rights. [5] The questiontherefore becomes, is there a common law right which has beenunquestionably identified? If so, does it enjoy a less precarious status inEnglish law than other such rights? That is, does a common law right existthat would not yield to a contrary statutory provision, however expresslyworded? The answer to these questions is, assuredly, yes.

In order to find a right whose existence is without question, one need look nofurther than the right of every subject of the Kingto appeal to the King inhis Courts. [6] Protection of the other common law rights, as Lady Hale ofRichmond, the Deputy President of the Supreme Court, notes, had its impetusin the strong history of protection under the common law of the right ofaccess to the courts. [7] This right is of ancient date, and is perhaps as old asthe common law itself. One of the few articles of Magna Carta remaining onthe statute book confirms that the Crown may not deny or defer to any maneither Justice or Right. [8] Of course, it is likely that the word pares (men) inMagna Carta originally referred only to the feudal lords who met with KingJohn at Runnymede. [9] However, the guarantees general application inmodern law is affirmed by Sir William Blackstone, who tells us that a right ofevery Englishman is that of applying to the courts of justice and that becausethe law is in England the supreme arbiter of every mans life, liberty, andproperty, courts...must at all times be open to the subject, and the law be duly

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administered therein. [10] Blackstones view has been confirmed in case law:Lord Diplock recognised a right of access to the court belonging to all citizensin Bremer Vulcan v South India Shipping, [11] as Richard Clayton points out. [12]

Let us accept, then, that there is a right to appeal to the Queen in HerMajestys courts that belongs to all of Her Majestys subjects. What wouldhappen if Parliament were to pass legislation that unambiguously constrainedor abolished this right? To pose such a hypothetical may seem ridiculous, butas Professor Sir William Wade points out, [a]ll writers on sovereignty arebound to deal in improbable examples. [13] He also helpfully reminds us that[t]o build up any theory of legal sovereignty is to try to make bricks withoutstraw, unless full advantage is taken of a handful of decisions, notably casesfrom countries of the Commonwealth. [14] Taking his advice, we shall turn toNew Zealand, which has an uncodified constitution and a sovereignParliament like that of the United Kingdom, in search of a solution. [15]

During the course of his twenty years on the New Zealand Court of Appeal(thirteen of these as President), former Lord of Appeal in Ordinary LordCooke of Thorndon repeatedly addressed the issue of parliamentaryinterference with the right to justice. [16] Michael Kirby, formerly of the HighCourt of Australia, has identified six cases in which Lord Cookes judgmentstouched upon this topic. [17] For present purposes, four of these areparticularly clear and relevant. In the 1979 case of L v M, Lord Cookeexpressed some doubt as to whether it is selfevident that Parliament couldconstitutionally attempt to confer on a body other than the Courts power todetermine conclusively whether or not actions in the Courts are barred. [18]Three years later, he noted in his judgment in New Zealand Drivers Associationv New Zealand Road Commission, with which Justices McMullin and Ongleyconcurred, that we have reservations as to the extent to which in New

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Zealand even an Act of Parliament can take away the rights of citizens toresort to the ordinary Courts of law for the determination of their rights. [19]In 1984, Lord Cooke made almost the same statement in two cases: in Fraser vState Services Commission, he wrote that [t]his is perhaps a reminder that it isarguable that some common law rights may go so deep that even Parliamentcannot be accepted by the Courts to have destroyed them, [20] and in Taylor vNew Zealand Poultry Board he claimed that [s]ome common law rightspresumably lie so deep that even Parliament could not override them. [21]Robert French, the Chief Justice of the High Court of Australia, suggests thatthese dicta remain good law. [22] For instance, he argues that Sir DavidBaragwanath fired a warning shot regarding the constitutional validity oflegislation in his judgment in Cooper v AttorneyGeneral, [23] as did the NewZealand Court of Appeal in Shaw v Commissioner of Inland Revenue. [24]

Moving from New Zealand to the rest of the commonlaw world, we discoverthat Chief Justice Beverley McLachlin of Canada stands with Lord Cooke onwhether there exists an inherent limit in the capacity of Parliament to enactenforceable laws. [25] Citing Justice Ivan Rand of Canadas Supreme Court,who alluded in Roncarelli v Duplessis to the existence of unwritten and yetenforceable norms by arguing that there is no such thing as absolute anduntrammelled discretion, [26] she concludes that judges have the duty to insistthat legislative and executive branches of government conform to establishedand fundamental norms. The jurisprudence of the Supreme Court of Indiaalso provides an apparent example of common law limits at work. InKesavananda Bharati v State of Kerala, the court held that the power ofParliament to amend the constitution, though extensive, did not include thepower to destroy or emasculate basic elements or fundamental features of theConstitution. [27] The rationale of this limitation may indeed be that there is acheck on what even Parliament can do where the challenged rights run sodeep that they are deemed basic and structural by the judges. [28]

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Keeping these dicta from New Zealand, Canada, and India in mind, we shallnow return to the views expressed in the courts of the United Kingdom onthis question of whether parliamentary sovereignty is limited by common lawrights, and in particular the right of access to justice. First, we should considerthe earliest cases suggesting the existence of common law limits onparliamentary sovereignty. [29] The first of these is Dr Bonhams Case, in whichSir Edward Coke stated that in many cases, the common law will controulActs of Parliament, and sometimes adjudge them to be utterly void: for whenan Act of Parliament is against common right or reason, or repugnant, orimpossible to be performed, the common law will controul it, and adjudgesuch Acts to be void. [30] Coke went on to make similar statements in Rowles vMason [31] and The Case of Proclamations, [32] and his successor as Chief Justice inthe Court of Common Pleas upheld this view in two cases, Day v Savadge [33]and Sheffield v Radcliffe, [34] despite the fact that Coke had by that time fallenfrom royal favour and was criticised for his decisions by the Lord Chancellor.

While Cokes views fell out of favour after the Glorious Revolution firmlyestablished the principle of parliamentary supremacy, the twentiethcenturycase of Oppenheimer v Cattermole (Inspector of Taxes) again seems to raise thepossibility that repugnant legislation may be found to be void by a Britishcourt. In his judgment in this case, Lord Cross of Chelsea suggested (LordHailsham of St. Marylebone, Lord Hodson, and Lord Salmon concurring) thatthe law of Nazi Germany depriving Jewish Germans of their citizenshipconstitute[d] so grave an infringement of human rights that the courts of thiscountry ought to refuse to recognise it as a law at all. [36] If it is possible forthe courts to refuse to recognise as valid a foreign law, duly enacted, violativeof human rights, is it not logical that the courts could refuse to recognise asvalid an Act of Parliament violating the right to justice, which is not only acommon law right but an internationallyrecognised [37] human right?

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A recent case of particular importance in determining whether UK courts arewilling to take this step, if necessary, is R (Jackson) v AttorneyGeneral. [38] Thiscase, which concerned the validity of the Hunting Act 2004 and theParliament Act 1949, was heard by a seven judge panel in the House of Lords.Of these, three made statements which seem to confirm at least the possibilitythat the Supreme Court would refuse to give effect to legislation seriouslyinfringing the right to justice. In his judgment, Lord Steyn suggests that theUK does not have an uncontrolled constitution, and that the supremacy ofParliament, a construct of the common law created by judges, could bequalified [i]n exceptional circumstances involving an attempt to abolishjudicial review or the ordinary role of the courts, which might force thecourts to to consider whether this is a constitutional fundamental which evena sovereign Parliament acting at the behest of a complaisant House ofCommons cannot abolish. [39] Lord Hope of Craighead asserts thatparliamentary sovereignty is no longer, if it ever was, absolute [40] and thatthe courts have a part to play in defining the limits of Parliament's legislativesovereignty in order to uphold the rule of law which protects individualsfrom arbitrary government. [41] Lady Hale completed the triad by noting that[t]he courts will treat with particular suspicion (and might even reject) anyattempt to subvert the rule of law by removing governmental action affectingthe rights of the individual from all judicial scrutiny. [42]

There is a great deal of further commentary on this topic, including much byjudges writing extracurially. Thus far, however, the focus has been kept oncase law, and it is with Jackson that our examination brings us nearly to thepresent day. Where has that examination left us? Certainly, it has beendemonstrated that the right to justice has existed for centuries. The firstmention of this right seems to have been in Magna Carta and, of course, asMagna Carta did not purport to create rights, but only to recognise them, itmay be a great deal older. The right has been discussed by distinguished legalcommentators. It has been recognised in the courts. But is it different from theother common law rights, for instance the right to freedom of speechdiscussed by Lord Mance in Kennedy? Is it protected, as perhaps no othercommon law right is, from the ability of an otherwise thoroughly sovereignParliament to legislate as it will, even when doing so is contrary tofundamental human rights?

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After considering cases from as far afield as India, and from as long ago as1610, we can conclude that the answer is indeed, Yes. The law is in theUnited Kingdom so pervasive, and the rule of law considered such a cardinalprinciple, that it is impossible to label the nations court system as anythingother than fundamental to our governmental structure. It would be equallywrong to say that the right of the individual to access that system is not abasic and essential freedom, even if the international community had notmade it clear that this right is an essential one. If we accept these assertions,then we can say the right of access to justice is basic element of our society aswell as a norm both established and fundamental the characteristics,according to the court in Kesavananda Bharati and Chief Justice McLachlin, ofprinciples that, as Lord Cooke put it, lie so deep that Parliament cannotinterfere with them. Since the time of Sir Edward Coke, British judges haveacknowledged that it might well be the case that a thoroughly repugnantpiece of legislation, one which gravely infringes upon human rights andwhich perhaps opens the door to arbitrary government, simply could not berecognised by the courts as valid.

An Act of Parliament limiting the ability of the individual to appeal to theQueen in Her Majestys courts which must, as Blackstone reminds us, beopen at all times to all comers would be, it seems, one such piece oflegislation. We must hope, of course, that we never reach a point where thecourts would be forced to refuse to recognise an Act of Parliament, as thatwould mean that Parliament had attempted to violently alter the structure ofboth government and society. (Indeed, for the courts to exercise this power oflast resort in other, less serious scenario would be dangerously undemocratic.)If, however, such an occasion were to arise, then the courts must be preparedto do their duty and defend that inestimably valuable principle of MagnaCarta, that justice is due to every man, without delay or deferral.

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There are current, ongoing debates in both the developed and developingworlds about the virtues and desirability of decentralization. Countries asvaried as Britain, Germany, America and Italy, to the Philippines, Indonesia,Peru and Uganda are currently decentralizing, have recently decentralized orare debating the expected benefits of decentralization, and this essay will tryto explain why this is the case.

This essay will first consider theoretical incentives for decentralization,namely the political, economic, and ideological benefits which it is supposedto bring. It will then analyse how these factors change from region to region,and in particular how they differ, or are similar, between developed anddeveloping worlds. Since the debate has been ongoing since World War Two,changes in the perceptions and justifications of decentralization over time willalso be considered. There are certainly negative elements and consequenceswhich accompany decentralization, but this essay will primarily focus on thebenefits of decentralization, and little is therefore said about centralizingbodies such as the European Union.

Decentralization can be defined broadly as any transfer of powers from thecenter to subnational levels, thus including the conventional categories ofdevolution and deconcentration. [1] Riker defines Federalism as a form of twotiered government whereby the constituent units have agreed with each otherthat each will retain its identity and unique functions. Governments that arenot federations can reorganize the local units at will, destroying old regionalunits and creating new ones. [2] Federalism is therefore a constitutionallydetermined tierstructure, and increasing the powers or autonomy of thesubnational bodies can be incorporated into the umbrella term,

THE CASE FOR DECENTRALIZATION IN THEDEVELOPED AND DEVELOPING WORLDS

Oliver Phillips

Candidate, BA (History and Politics)oliver.phillips@lmh.ox.ac.uk

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decentralizaation. The World Bank definition of a developing country will beused, namely any country which has a Gross National Income (GNI) of lessthan $11, 905 per capita per year, and a developed country as one which has aGNI per capita per year above $11,905. [3] Whilst there is little evidence thatdecentralization delivers on many of its promises, there are clear theoreticalincentives for both rich and poor countries to decentralize, and it seems likelythat further decentralization will occur widely and extensively in the future.

CONSTITUTIONAL

One of the main reasons that countries decentralize is for ideologicalpurposes, namely that it will lead to democratization, which is generallyconsidered desirable in both the developed and developing worlds. The idealstate is often seen as being democratic and developmental, which includesbroad based participation, growth with redistribution, propoor policies andresponsiveness. [4] Decentralization is often considered the best way to achievethis, largely because it is associated with democratic decision making, populardecisionmaking and the accountability of public officials to citizens.Decentralization therefore optimizes state responsiveness, fulfilling thedemocratic ideal. Decentralization aims for high levels of popularparticipation, and it is hoped that it will harmonize both national and localinterests. This is because local governments are in close proximity to thepeople, and they are in a more suitable position than the central governmentto provide the public services people desire. [5] It is also believed that civilsociety functions better in a decentralized state. [6] Indeed, Damond arguesthat decentralization is increasingly seen as a basic democratic principle, [7] aspeople get to choose their own local leaders when political power istransferred from government appointments to elected officials. They in turnare more responsive to people's needs, and some grassroots movements seedecentralization as a way to enhance the depth and legitimacy of democracy.

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Decentralization is an ideological principle, associated with objectives of selfreliance, democratic decision making, popular participation in governmentand accountability of public officials to citizens. Indeed, it was out ofideological principles that the US initially adopted its federal, decentralizedsystem, believing it to be the best way to defend liberty and protect the rightsof the citizens. As James Madison wrote in The Federalist Papers, Power isfirst divided between two distinct governments, and then the portion allottedto each subdivided Hence a double security arises to the rights of thepeople. [8] As such it is seen as a desirable political objective in and of itself,and this ideological appeal is a key reason why countries decentralize.

POLITICAL

An expected political benefit to decentralizing is that this will make politicsmore responsive and closer to the public. Decentralization also intends towiden the opportunities for citizens to participate in the local decisionmakingprocess, [9] and it is hoped that this will increase participation. It has also beenused in the past as a way to give minorities greater power. [10] Decentralizationis adopted to give different ethnic and regional groups some autonomy andcontrol over their own affairs, as ethnic minorities are often concentrated in aparticular region. They will then feel more secure and be more willing torespect the authority and legitimacy of the state. [11] Parties which cannot winnationally can do well on a local level, increasing their commitment to thepolitical system. Decentralization expresses citizens identity with a particularcommunity, whether religious or ethnic, for example, giving these minoritiesa voice, a meaningful choice and hopefully preventing potential conflict.Indeed, decentralization may help hold a country together by preventing thedisintegration of the central government. This often takes the form of holdingtogether federalism which Sepan describes as a consensual parliamentarydecision to hold together a unitary state by creating a multinational federalsystem, as seen in Belgium (1969) and Spain (1975). [12] If sincere autonomy isgiven, stability and unity is the result, especially if it preempts rather thanresponds to troubles, as seen in Belgium where different linguistic

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communities are under different administrative units. [13] Decentralizeddecisionmaking promotes internal competition and entrepreneurial talent,whilst it is hoped that it will prevent the central government and bureaucracybecoming overloaded and congested, resulting in fewer delays. Because ofthese hopes decentralization is often the result of the failure of the centralgovernment. [14] Rondinelli also notes that decentralization can be a way forlocal managers to have greater discretion in decision making, thus being ableto act quicker and cut through the red tape, and that it can be a way tomobilize support for national policies by making them better known at a locallevel. Overall therefore, decentralization is an attractive proposal for thepolitical benefits which it brings to a country.

ECONOMIC

A final general benefit of decentralization is the economic efficiency andresponsiveness which it is expected to bring, both for political representation,and service results. Simply put, decentralized states are expected to reducepoverty by making public services more responsive to the needs of the people,thus maximizing economic development. [15] Multi level governance allows forflexibility on a local level, which can be used to increase local planning andbudgeting to produce services consistent with local preferences. [16] It is hopedthat decentralization will provide the public with cheaper, betterquality andgreater service coverage, as well as achieving budget savings and cutting thewaste of centralized governments. Local governments are better at preferencematching and better know what locals need and want, whilst greater equityin the allocation of government resources for investment is presumed morelikely, albeit more slowly, when representatives of a wide variety of political,religions, ethnic and social groups participate in development decisionmaking. [17] Overall it is hoped that local governments can more accuratelyassess what constituents want and need in terms of service provision than thecentral government, and are in a better position to utilize resources to ensurethat needs are met, spending resources well and creating economic efficiency.

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REGIONAL VARIATION

Whilst the economic, political and ideological benefits make a strong case fordecentralization in general, there are often elements of these factors whichprove to be particularly desirable in various parts of the world, and aconsiderable amount of variation occurs between developed and developingcountries arguing the case for decentralization. For example, in thedeveloping world decentralization is seen to promote good governance. [18]Whilst good governance is clearly desirable everywhere, Saito believes moreemphasis is placed on this factor in the developing world and therefore it ismore important that reforms achieve this aim. This is because in thedeveloping world decentralization often follows years of highly centralizedrule. In Uganda for example Idi Amin heavily centralized from 197179 andthe NRM came to power in 1986 promising decentralization. [19] Similarly,decentralization in Indonesia began with high hopes in 1999 to reverse theextreme centralization of the Suharto years, whose policies provokedresentment and insurrection in Aceh and East Kalimantan. [20] In much ofLatin America decentralization has been a part of the democratizationprocess, as discredited central regimes are replaced by elected governmentsacting under new constitutions. [21] Thus in much of the developing world,and something not seen in the developed world, decentralization has verymuch been a backlash reaction against centralized, autocratic regimes.

Decentralization is appealing to developing countries for its perceived abilityto help reduce poverty. [22] Demand for decentralization in Bangladesh comesfrom citizens dissatisfaction with the results of centralized economicplanning, as a well as a desire to get more involved in the process ofgovernment, [23] as well as by the need to improve service delivery to largepopulation and the failure of the central government.

For much of the developing world decentralization occurs as part of anattempt to increase stability, such as in the Philippines, Pakistan and

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Indonesia. [24] Many developing countries look to Indonesias successfulexample of staving off potential violence through decentralization, as it hasheld the country together. Similarly decentralization in Ethiopia has been inresponse to regional or ethnic groups wanting more control of the politicalprocess. [25] A need to create stability between various competing ethnicities,tribes or religions is more of an incentive to decentralize in the developingworld than it is the developed world.

However there are also elements of decentralization which are moreappealing to developed counties, and which therefore form the mainarguments for decentralization in these countries. Ahmed notes that In manyOECD countries, decentralization arose from political (regional) demands forautonomy, not from efficiency considerations[26], which is clearly verydifferent from the aforementioned need for better service delivery indeveloping countries. Whilst this is disputed, and not exclusively found in thedeveloped world, both efficiency and autonomy demands are causes ofdecentralization in developed countries. An exception to this is Scandinaviandecentralization, which has largely been driven by efficiency concerns.

Britain and Spain exemplify many of the decentralization arguments used bydeveloped countries in the world today. Britain is one of the most centralizedstates in the world, and UK Prime Minister David Cameron, Deputy PrimeMinister Nick Clegg and Opposition Leader Ed Miliband have all promised togive more power to the provinces. [27] After the 2014 Scottish independencereferendum all three main parties pledged to give more power to Scotland.This race to decentralize may seem surprising at first Thatcher took poweraway from local councils and Labours bid to create regional assemblies in2004 lacked the backing of senior ministers. However in an austerity age thegovernment is trying to reduce the deficit and it is believed that devolvingpower will ensure that spending reflects local needs. It is also believed thatdevolving powers to big cities would improve their economies, and anexample has been set by Canada and Germany whereby competition betweenregions has led to better public services. As stated earlier, political autonomydemands are also a cause of decentralization, in order to increase politicalparticipation. This stems from a belief that local governments are more

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responsive than the central government. A BBC survey in October 2014 foundthat seventyone percent of Britons felt national politicians do not understandwhat is best for the countries, whilst trust in local authorities remainsrelatively high. [28] This has led to gradual decentralization which the publicapproves of, as seen by the successful referendum creating a Mayor ofLondon. Manchester now also has an elected Mayor and new powers overinfrastructure. Decentralization is a trend which looks set to continuewhatever the results of the 2015 general election may be.

Similarly to Scotland, Catalunya wants to become independent. Whilstindependence is not the same as decentralization, the factors causing it aresimilar although spending is done on a regional level in Spain, policies forthe whole country are frequently still laid down in Madrid[29], andCatalunians believe that they could better manage their affairs without whatthey see as outside political interference. In a clear difference from thedeveloping world there is little chance of instability or a civil war forming inSpain or Scotland, which has been a real fear in many developing countrieswith ethnicities or regions wanting more power. In the developed worldtherefore a desire for political autonomy and better service provision seem tobe the main forces driving decentralization.

CHRONOLOGICAL DIFFERENCES

Whilst the same general factors of economic and political efficiency, as well asthe ideological general goal of democratization may be a constant withregards to why countries desire to decentralize, these factors, and others, havegained and lost prominence over time. Decentralization programs of the 1950sand 1960s were closely associated, especially in Africa, with the transitionfrom colonial status to political independence, [30] and was seen as part of ahealing process for several countries. It removed some responsibilities fromthe central government, and encouraged political involvement and educationat a local level, which these countries saw as an important sign of theirindependence. These newly independent governments wanted todemonstrate that they were concerned with democracy and meeting localneeds. [31] Decentralization from the 1960s to 1980s was largely seen as a wayto improve the planning and implementation of rural development, as well as

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a way to facilitate effective popular participation in this process. Ruraldevelopment gradually came to be seen as a crucial goal, and thereforeneeded to be more effective, and it was decided that the best way to do thiswas to make it more responsive and flexible to local needs. [32]

Another change which has occurred is that from the 1980s onwardsdecentralization has been seen as a way to increase, not decrease, nationalunity. Decentralization is now seen as an attempt to decentralize the nationalgovernment, rather than an attempt to establish a second tier of government,which hasnt always been the case. [33] After the Cold War democratizationbecame a global trend, and decentralization came to be seen as a driving forcetowards democratization, which is one reason for its surge in the 1990s.Decentralization was also seen as an ideal means for reducing the size of thestate, and creating small, vibrant markets, [34] reasons which remain a cause ofits implementation to this day.

WHERE DOES THAT LEAVE US TODAY

The world has changed greatly since the 1960s, and decentralization has hadto adapt with it. Globalization reduces the effectiveness of the state to controlthe exchanges of people, goods and services, and there is also more diversitynow than ever before in the preferences of people concerning areas in whichthe state should function. This has resulted in the government often beingconsidered unresponsive to the needs of the people, and decentralization isconsidered the best way to change this perception. [35] Moreover, welfareprovision is no longer exclusively in the hands of the state, as public, privateand civil organizations and NGOs play a role. These issues are bestcoordinated by decentralized governments deploying a bottomupconsultative approach rather than a central governments topdown approachto welfare provision, [36] which implies that the current trend towardsdecentralization is going to stay, and if anything speed up. A brief predictionthen would be that decentralization is going to occur more widely, and moreextensively than ever before, in both the developed and developing countries.From a Republican Congress in America trying to increase state autonomy atthe expense of the power of the central government, to the ongoing debates in

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Bangladesh, we are likely to see both developed and developing countriesbecoming increasingly decentralized.

CONCLUSION

It is impossible to highlight a most important reason for decentralization ona global level, as different countries often have a different priority whendecentralizing. Efficiency concerns (political and economic) are relevant toboth developing and developed countries considering decentralization, yet itis still hard to name this as the main incentive for decentralization, as it can behard to separate it from the other political and economic benefits whichaccompany decentralization, as well as the ideological motivation fordecentralizing. What is interesting to note are some of the broader, moregeneral differences between the developed and developing worlds, namelythe stability incentive which applies to the developing world and the demandfor local political autonomy in the developed world. Whist the evidence isinconclusive on the impacts of decentralization on citizen welfare, governanceand democratization, [37] and the links between decentralization, growth andefficiency are tenuous, the political, economic and ideological incentives andhopes for decentralization are enough to ensure that its current popularity inthe international community will continue to grow.

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Even today, some of the most analyzed and dissected political works of alltime can produce small gems of relevant facts that can change our perspectiveon modern history. One such gem exists in Chapter X of Book II of JeanJacques Rousseau's The Social Contract:

What people, then, is a fit subject for legislation? () Legislation is made difficult lessby what it is necessary to build up than by what has to be destroyed and what makessuccess so rare is the impossibility of finding natural simplicity together with socialrequirements. All these conditions are indeed rarely found united, and therefore fewStates have good constitutions.

There is still in Europe one country capable of being given laws Corsica. The valourand persistency with which that brave people has regained and defended its libertywell deserves that some wise man should teach it how to preserve what it has won. Ihave a feeling that some day that little island will astonish Europe. [1]

This admiration for the insular people of Corsica seems surprising at firstglance. Nowadays, Corsica is a touristic hub on the Mediterranean that hasbeen under the control of the French for almost 250 years. Whatever remnantsof nationalism still exist today in Corsica have little practical basis, and it isdifficult to conceive of Corsica sustaining itself as an independent nation.

However, Rousseau felt he had reasons for believing that Corsica hadpotential for greatness in the middle of the 18th Century. After 30 years of waragainst their 'possessors', the Genoese, the Corsicans had recaptured amajority of the island, set up a government and even drafted what manyconsider to be the first Republican Constitution, 20 years before USindependence and 30 years before the French Revolution.

THE REPUBLIC OF CORSICA ANDITS INFLUENCE ON MODERN DEMOCRACY

Marc-Andrea Fiorina

Candidate, BA (Politics, Philosophy, and Economics)marc-andrea.fiorina@stcatz.ox.ac.uk

Rousseau admired Corsica because he recognized many of his own ideasabout the theory of the state in Corsica's government. The 18th CenturyCorsican Republic can be considered a prototype, a reallife casestudy ofRousseau's work work that has often been criticized for being too theoreticaland disconnected from political practice.

Thus Corsica provides us with a way to observe whether Rousseau's theory ofthe state is feasible. Corsica is also interesting in that its Constitution andlegislative system emphasized values such as freedom, equality andindividual rights in a manner unprecedented at the time James Boswell, themost prominent Englishman to write on Corsica in the 18th Century, evencalled Corsica's system of governance "the best model that hath ever existed inthe democratical form". [2] In this article I will first look at the similarities anddifferences between Rousseau's theory of the state as described in The SocialContract and the Corsican Republic's government. Second, I will highlightCorsica's unprecedented legislation on subjects such as implementinggovernment overview of justice and the commemoration of the dead, andshow that this parallels Rousseau's wish in his Constitution Project For Corsicathat mores and custom shape legislation rather than be shaped by it. [3]

We must first observe how Corsica arrived at the point where its societycombined Rousseau's ideal conditions for democracy "natural simplicity",the mark of an insular life and little contact with the exterior world, and"social requirements". These seemingly contrarian conditions somehow cometogether in Corsica. This is largely due to its history of subjugation andpopular struggle against invaders.

The first considerable people to colonize Corsica were the Phoenicians, whofounded Alalia in the 6th Century B.C. After the Phoenicians left for theirother Mediterranean colony, Massilia, it fell under Etruscan rule, before theCarthaginians took possession of the entire island. The Carthaginians werethe first to capitalize on Corsica's isolation by burning their vines anddestroying their crops so as to render them dependent on crops importedfrom Africa. When Carthage was defeated by Rome, Corsica fought on againsta number of Roman generals, before being put under Roman rule at the end ofthe 3rd Century B.C. Corsica remained Roman until the fall of the Empire.After the fall, Corsica was subjected to countless raids and invasions by the

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Moors, until the Frank leader Charles Martel defeated them at Poitiers in 732and gave the island of Corsica to the Papacy, although the Holy See onlyactually took possession of the island almost one hundred years later. Corsicaremained under papal dominion until Pope Urban II gave the island to thePisans in 1098. For the next few centuries, Pisans and Genoese fought overthe island, until the Pisans were defeated in the battle of Meloria in 1284. Forthe next two centuries, there was a threeway struggle for the island, betweenthe Genoese, the Kings of Aragon and the Corsicans. The Kings of Aragonwere evicted by the Genoese in 1434, and for the next three centuries, thestruggle for Corsica was between the people of Corsica and the Genoese. [4]

Parallel to this history of subjugation, there is also a history of Corsicanstruggle for independence. None of the foreign powers cited previously,though they laid claim to the island as a whole, were able to establishthemselves in the rocky, inhospitable interior of the island. From the maquis,the thick brush that covers most of Corsica's mountainous interior, Corsicanresistance movements have fought to preserve their land and retake theircoasts. It began against the Carthaginians, who forced Corsica into economicdependency by burning their crops, vines and olive groves. After theCarthaginians' defeat at the hands of the Romans, the Corsicans once againtried to emancipate themselves from foreign rule, to no avail. Subsequentinvaders, be it the Moors, the Pisans, the Genoese or the Kings of Aragon,failed to effectively bring the island under their control, and were mostlyconfined to fortified coastal cities such as Ajaccio or Bastia. [5] This unstablestatus quo of sorts was constantly challenged by both sides, yet it remained inplace until 1729, the year that marked the beginning of the Corsican war ofindependence against the Genoese. [6]

This war of independence is commonly considered to have been sparked byan unfair tax called 'due seini'. This tax was imposed on Corsican families afterthe Corsican representatives in Genoa secured a ban on firearms so as toreduce violence on the island. The Genoese saw the tax as compensation forthe loss of income incurred by the ban (the Genoese sold arms to theCorsicans) in effect, Corsicans were being made to pay for a ban that furtherconstrained their liberties. This sparked fights with tax collectors in the northof the island, and the revolt spread like wildfire across the island. The war ofindependence lasted for over thirty years, with the Genoese regaining controlof the island twice, with assistance from the Papacy in 1733 and with French

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assistance in 1739. However, whenever foreign assistance to Genoa ceased,the Corsican population would regain control. This situation of turmoil lasteduntil 1769, when the weary Genoese sold the island to the French, whopromptly invaded and ended the war of independence. [7] Since 1769, save forthe shortlived (17941796) AngloCorsican Kingdom, Corsica has been aFrench region, and despite calls for independence that persist to the presentday, this will be the case for the foreseeable future.

Between 1729, year of the beginning of the Corsican Revolution, and 1769, theyear that Corsica was sold to and promptly invaded by France, the Corsicansimplemented and polished their form of government until it best suited theirneeds and ideas. Before showing the similarities and differences between thisgovernment and Rousseau's theory of the state, here is a brief overview ofCorsica's governance structure:

Each year, every village elected a 'Procuratour', who represented them atCorsica's parliament, the 'General Consulta', which was held once a year inCorte, Corsica's capital at the time. Together with the 'Procuratours of Magistrates', who were elected at aregional level by local leaders, they elected a President at the GeneralConsulta, who oversaw the General Consulta. The General Consulta, which formed Corsica's government's legislativebranch, then voted on law proposals. These proposals could only become lawif they obtained a supermajority of two thirds of the Consulta. The Procuratours from each province (Corsica has nine such provinces) alsoelected a representative to the 'Supreme Council', which formed Corsica'sgovernment's executive branch. At the head of the Supreme Council was the General, a man who wasinformally nominated to the position by Corsica's leaders and possessed neartotal executive power of decisionmaking. [8]

Straight away, links with Rousseau's theory of the state are evident. Corsica'sstrong reliance on adult male suffrage at local, regional and national levels ofgovernment shows a strong desire for the government's composition to reflectthe will of the majority. Corsica was the first political community to enshrinea commitment to popular consent in government in its Constitution.

Yet the most important parallel between the Corsican government andRousseau's writings is the figure known by the Corsicans as 'the General', and

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named 'the Legislator' in The Social Contract. The figure of the Legislator isessential to Rousseau's theory of the state, and Corsica's General is the closestapplication we have of the role in real life.

In Chapter VII of Book II, 'The Legislator', Rousseau describes this particularpolitical role, whose task it is to form effective and stable institutions as afoundation for a solid republic. This Legislator obtains his mandate notdirectly from the people, but rather by merit, as the person best suited toguiding a nascent democracy. [9] This is the role the General seemed toembody in the eyes of the Corsicans a man of neargodly intellectual powersin whom they can trust to make the right decisions in the nation's interest. [10]

The role of the General highlights the conditions that prompted Rousseau tocite Corsica in The Social Contract. Corsica had the 'social requirements' tocreate this role and have an individual capable of assuming it effectively theyalso had the 'natural simplicity' [11] that seems necessary to effectively trustand worship one man as the Corsicans venerated the General.

There are some differences between the Corsican government and Rousseau'stheory of the state most are due to the exceptional circumstances surroundingthe Corsican Republic, namely that it was created and maintained in the midstof a war on the Genoese. Thus the General had powers beyond theimplementation of political institutions. He was chief of the armies, couldcreate and apply legislation unilaterally and he could veto any of the GeneralConsulta or the Supreme Council's decisions. [12] This might be said tocontradict the view that the people are sovereign, since one man could opposeand counter the will of the majority. Yet, in view of the numerous similaritiesbetween the two, we can affirm that the Corsican government is the closestreallife application of Rousseau's theory of the state.

Due to the Corsican Republic's short lifespan, it is difficult to evaluate howinfluential its form of government was in the long term. We can only focus onthe short term. In the short term, the Corsican Republic failed to securecomplete independence from foreign powers. Yet the part that Corsica's formof government had in Corsica's defeat by the French is debatable. Corsica was

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outnumbered and outmaneuvered by a militarily superior professional force.[13] There was arguably little that its government could have done to stop this.Despite his apparently godlike powers, General Pasquale Paoli could notdouble the size of his army or give them the experience that they would haveneeded to contain the French. So the causality between Corsica's form ofgovernment and the end of the Corsican Republic is doubtful.

The aspects of Corsican government found in Rousseau were, for the mostpart, successful. The role of the General was a somewhat surprising success.This is largely due to there being men capable of holding the position withoutabusing of its powers, and actually using it to improve the society's condition.Corsica succeeded, in those 40 years of independence, in finding morally rightmen who put their republic's interests before their own. For that reason alonethe role of the General was a success the outcome could have been muchdifferent had a man with fewer scruples succeeded in becoming General.Rousseau himself admitted that the moral and intellectual conditions that theLegislator had to fulfill were so demanding that the idea had little practicalapplication possibilities. So although it suggests that the role of the Legislatorcan work under the right circumstances, Corsica's General does not allow usto conclude that a Legislator would further society's goals in any republic.

Another fascinating aspect of the Corsican Republic is its attempts toimplement legislation based on custom and tradition. Two laws stand out.Corsica has a long history of the use of personal vengeance to settle disputes.As Boswell puts it, "the Corsicans () had been accustomed to assassinateeach other upon the most trivial occasions". [14] According to Boswell, whenPasquale Paoli became General in 1755, the sparsely populated island waslosing 800 subjects to vendetta every year. Yet Paoli succeeded in convincingthe Corsicans that the right to decide whether an individual deserves to liveor die belongs to the government. [15] Not only did he make a distinctionbetween public and personal matters, he accomplished one of the conditionsof Rousseau's Social Contract: that society exchange its 'natural liberty', suchas liberty to avenge a personal wrong, for 'moral' and 'social' liberties, such asthe guarantee of a fair trial and the presumption of innocence.

Another, smaller but no less significant piece of legislation concerns theremembrance of those who have fallen in battle. Paoli sent a letter to thepriests of every parish in Corsica. In it, he asked them to prepare "an exact

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and compleat catalogue of those heroes (who) () have been killed orwounded in the service of their country, from 1729 to the present time". Withthis, he sought "to make known to the publick, the bravery and piety of those,who shed blood in defending their rights and the liberty of our country". [16]

Notice the phrase "killed or wounded in the service of their country".Nowadays, inscriptions such as "morts pour la patrie" are omnipresent oncenotaphs everywhere around the world. By choosing to honor the men whodied for their beliefs and their nation two centuries before the existence ofwidespread war memorials, Paoli once again shows surprising foresight inanticipating the commemoration of the soldat inconnu the unknown soldier in the middle of the 18th Century. He taught the Corsicans to respect valor,sacrifice for their nation, and patriotism. Here, Paoli set the basis for thefoundation of a republican society: shared values and principles.

These laws are founded on morality and are steeped in tradition. Theyrepresent another point of comparison between the Corsican Republic andRousseau's theory of the state. The implementation of these laws based oncustom falls on one side of a debate regarding Rousseau's thesis: the debateconcerns the chronology of the implementation of democratic institutions.

The debate is over whether Rousseau wished for laws to precede or bepreceded by custom and traditions. [17] There are cases of him advocating boththeses throughout his literature. For example, in The Social Contract, one of thereasons for which Rousseau considers Corsica "capable of being given laws" isbecause it "has neither customs nor superstitions deeply ingrained". [18] Thissuggests that the Legislator's laws must precede and even shape custom thelaws must precede societal tradition. However, considering the insular,isolated Corsicans to be devoid of customs or superstitions is puzzling. Thuswhen the time came for Rousseau to write the Constitutional Project For Corsica(a project which, some maintain, he undertook in the hope of assuming therole of Legislator in Corsica), [19] he did not demand that they acceptlegislation before tradition. Instead, he advised that the Corsicans return totheir "original virtues", those untainted by war or occupation, and ridthemselves of the "many vices" contracted under Genoa's "servitude". [20]

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These virtues would "facilitate the establishment of our constitution". [21]

Thus in the first case, Rousseau argues for the implementation of laws devoidof custom, while in the second case he wishes for these traditional values to beat the basis of Corsica's Constitution. This contradiction stands in Rousseau'stheory of the state. In Corsica, however, we can see that Paoli paralleledRousseau's advice of going back to tradition to inspire legislation. However,Rousseau did not directly inspire this legislation his Constitution was draftedin 1755, ten years before Rousseau's plan. The successful implementation oftraditionbased laws, and their positive impact on the Republic, are anotherargument in favor of the applicability of Rousseau's theory of the state.

It seems that as a casestudy of the practical implementation of Rousseau'stheory of the state, the Corsican Republic shines a fairly positive light onRousseau's work. Corsica could thus serve as a counterexample to the notionthat Rousseau's work has no possible applications in reality. However, wemust remember that Corsica only succeeded in creating a successfuldemocracy with characteristics in common with Rousseau's theory because ofits extraordinary circumstances: the war against the Genoese and theexceptional man who assumed the role of General. In times of peace, the roleof the General would be difficult to justify so it seems it is no disaster thatRousseau's theory remain confined to the realm of theory. Yet Corsica's role inthe implementation of republican values should not be forgotten. It shouldalso be singled out for its Constitution, a gem of early democracy that, eventoday, has not yet been translated into English. There certainly seems to be anasymmetry between Corsica's impact on democracy and its legacy.

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13The unfolding tragedy in Ukraine presages the collision of two

converging entities, desperate to endure and uncertain of doing so with one atleast convinced that salvation can only come from dominance in Ukraine andthe rest of the former eastern bloc. The Russian Federation and the EuropeanUnion are experiencing parallel crises of legitimacy that motivate a dangeroussymmetrical foreign policy.

This essay argues that both are motivated by deteriorating economies to seeklegitimacy in symbolism. Although Realists would argue that states areinclined to pursue power and that Russias actions can be explained thusly, [1]I would argue that the persistent push for the Eurasian Economic Union,despite serious concerns about its economic and geopolitical benefit, [2]demonstrates the predominance of ideas in policymaking. Therefore, I wouldargue that the policies implemented in Ukraine are largely the outwardexpression of internal concerns in both Russia and the EU. Kalypso Nicolaidisand Christopher Bickerton have argued that, due to changes in traditionintegrationist narratives, the EU is coming to regard its external relations as itsnew raison detre. [3] Jrgen Habermas cited the precarious global situation asthe chief reason for a strong and united EU. [4] There is a recognition that theEU is no longer needed to prevent war in Europe and that this role can bereplaced with the peacemaking abroad. However, the consequence of this isthat the credibility of EU is tied to the effectiveness of its foreign policy. EUforeign policy has been characterized by incessant introspection, [5] arguablyresulting from paradoxes at the heart of the idea of European foreign policy. [6]

'FEARFUL SYMMETRY':RUSSIA, EUROPE, AND THE EAST

Alex McGann

Candidate, BA (Politics, Philosophy, and Economics)gregory.mcgann@exeter.ox.ac.uk

Foreign policy has been the subject of ontological questions regarding thenature and existence of the EU. [7] I argue that, firstly, EU foreign policytowards Eastern Europe reveals the increasing importance of easternmembers, specifically Poland, and thus the changing ontology of the EU itself.

I argue, along constructivist lines, that the burgeoning conflict between Russiaand the EU is largely motivated by the conflict of the Russian world viewand the principled beliefs of the EU, which have in large part beenuploaded to it by its FormerUSSR member states. [9] In this sense it isrepresentative of the conflict between a world view, in this case a complexnationalism, and principled belief, based on the rights enjoyed in some in theformer Eastern bloc, such as Poland, and demonstrably denied others, such asUkraine. However, it may be that the actions of the EU are, to some extent, acombination of principled belief and a world view inherited from the coldwar in which the containment of Russian power, as espoused by GeorgeKennan, remains a clear preference. For Russia, a nation uncertain of itsplace, purpose and status, Ukraine is the embodiment of its historicalauthority its estrangement is a testament to that authoritys diminishment.For both, victory would be monumental, even redemptive for both defeatwould be a a significant setback to the raison dtre of the regime, eitherundermining the integrative reason for the EUs existence, or dissolving theKremlins image of strength and success on which it depends.

The crux of the symmetry lies in the comparison between NATO and EUmember Poland and its Eastern neighbour Ukraine. The borders of the twocountries have shifted significantly over the course of their histories and muchof what is now Ukraine was once Poland or the PolishLithuanianCommonwealth. The figures demonstrate a remarkable economic divergencein fortune. Whereas the Polish economy was only about 20% larger than theUkrainian in 1990, by 2012 it was three times larger. In that period, Polandseconomy more than doubled in size while Ukraines shrank by more thanthirty percent. The average Ukrainians per capita incomes now stand at afifth of his polish counterparts. [10] Having seemingly avoided the middleincome trap, [11] Poland is projected to reach eighty percent of the EU15 level

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of income by 2030. [12] It has achieved the highest level of income relative towestern Europe since the year 1500, thus in just about 20 years offsetting morethan 500 years of decline. [13] The comparison is not lost on Ukrainians, whowere said, by the thenPrime Minister Yulia Tymoshenko, to envy the Poles,[14] nor is it lost on the Poles themselves, who have clearly taken their ownprosperity and their neighbours relative lack thereof as evidence of theeconomically stifling nature of Russian predominance.

Polands new golden age [15] means that it is at the forefront of atransformation in the geographical power in the European Union. As aneconomic exemplar, model European and close cooperator with Germany,Poland wields increasing power in the EU. Polands rise, and the parallelascent of fellow eastern members, comes as the traditional members of theUnion lose faith. The Eurozone is trapped in a vicious cycle wherein reformand integration are the only path out of stagnation but stagnation produceseuroskepticism which rejects integration, thereby perpetuating stagnation andincurring further skepticism and so on. This contrasts with the uninterruptedgrowth of Poland and its integrationist zeal. At all levels of Europeangovernment, the shifting centre of gravity is perceptible. At the bottom, Polesand Romanians make up the two largest nationalities of junior administrativestaff in the EU. [16] At the top, Donald Tusk has been appointed as President ofthe European Council. Tusks appointment marks not only the ascent ofPoland but the fear of Russia driving that ascent to European leadership:Tusk was said to have been finally persuaded to accept the presidencybecause of the Ukrainian crisis. [17] At the same time, the EU itself isincreasingly transferring claims to legitimacy from the west, where economicdespair and antiimmigrant parties stymie ambitions and achievements, to theeast where just the prospect of EU membership motivates significant reform[18] and the EU flag is raised in defiant protests in Hungary and Ukraine. It'sfrom the east that the EU derives the energy of idealism and force oflegitimacy. This is changing the geopolitical outlook of the EU.

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Almost since the fall of the Iron Curtain, the most ferocious European criticsof Russia have been Eastern European. In 2004 an open letter to heads of statewarning that Putin was authoritarian and aggressive was signed by RadekSikorski (future Polish foreign minister), current Estonian president ToomasIlves, Pavol Demes, Former Foreign Minister of Slovakia, Philip Dimitrov,Former Prime Minister of Bulgaria and Vytautas Landsbergis, formerPresident and Member of European Parliament for Lithuania, among manyothers. [19] As Latvia, gripped with missionary zeal [20], assumes the rotatingpresidency of the EUs Council of Ministers, it will host an unusually chargedmeeting of the Eastern partnership. [21] The last such meeting ignited theEuromaidan, a set of popular protests for European integration that resultedin the ousting of then Ukrainian President, Viktor Yanukovitch. Polish publicand political life has been vociferous in its criticism of Putin and its urging ofthe EU to engage more directly. [22] This is a Poland frustrated by the inactivityof Germany [23] and the bitterly exasperated with the failure of the UnitedStates to act decisively in Europe. [24] Furthermore, Poland has not merely anideological but an economic logic behind its push for the integration ofUkraine into Europe. Of EU countries, Poland stands to gain the most for itsown market by, for example, the creation of an EUUkraine free trade zone. [25]

The eastern and antiRussian momentum in Europe could stall. Germanydisappointed Poles by consistently excluding Poland from meetings withRussia. [26] Poland faces future economic difficulties [27], its reluctance toreplace the Zloty with the Euro may isolate it as the Eurozone integrates, itsForeign Minister Radek Sikorski has been demoted [28] and a less hawkishgovernment replaces Donald Tusks. Most importantly, the Visegrad Group(Poland, Hungary, Czech Republic and Slovakia) is divided on the subject ofRussia, with Poland the most hawkish, the others reluctant. [29] Generalsupport for EU expansion does not equate to criticism of Russia.

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It becomes clear however that, at least in the immediate future, the centre ofgravity in the European political community is moving decisively eastward.The emergence of the east naturally entails the prominence of its foreignpolicy objectives. Furthermore, since eastern members are generally more proEuropean than the currentlydominant west, the EU has every reason todisproportionately favour a foreign policy focused on eastern expansion.

The focusing of the European Unions selfinterest on Ukraine coincides withEuropes most proUkrainian government sitting in Warsaw. [30] The paralleldevelopments have ceded to Poland a leadership position in Europes foreignpolicy. [31] The inflation of the importance of the east is explained partly by thecoincidence of its rise with the wests disarray, partly the coincidence of itsvigorous proEuropeanism with the disengagement and skepticism of thewest, and partly the distinctly European nature of its foreign policy.

If one accepts that eastern members are more inclined to support furthereastern accessions, as Poland does, then it becomes clear that the more easternEuropean countries are admitted, the greater the influence of the east and,consequently, the greater the drive to admit new eastern members and so on.One is led to predict a situation in which each new eastern accession hasheightened the thirst for another until finally only a single country, namelyUkraine, remains outside. With its legitimacy hanging on the countrys desireto Europeanise, and public opinion mobilized by its plight, the entire vitalityof the EUs adopted eastern leaning will fall on the accession of Ukraine. Ifenthusiasm continues to propel eastern citizens to European leadership, onecan imagine all the levers of the European apparatus pushed for the purposeof accession and consequently the entire union gambled on this final victory.

Until the financial crisis of 2008, Russia under Putin experienced phenomenaleconomic growth. It surpassed its size at the time of the fall of the SovietUnion, grew at around 7% annually on average. Between 20002005, theaverage Russian annual income grew by 26%, [32] and between 20002012 thecountrys GDP almost doubled. [33]

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However, both 2008 crash, declining oil revenues and the current crisis areexacting a toll on the economy. Brent crude fell 48 per cent in 2014 and is oncourse for its biggest annual decline since 2008 [34] with obvious ramificationsfor a government that still runs a general deficit of more than 12% whenexcluding oil revenues. [35] Russia is perhaps not as vulnerable to changes inthe price of oil as was the USSR, itself brought down in part by the 19851989price slump, due to the Putin governments insistence on longterm contractswith Europeans and integration into the European market. [36] Furthermore,Russia is not as vulnerable to a collapse of the Ukrainian economy as is oftensupposed: the level of exposure of Russian banks to Ukrainian marketsamounts to less than 2% of Russian banks assets, only 5% of exports go toUkraine and loans and arrears to Gazprom reflect a mere 0.3% of GDP. [37]However, there are those who say that the affliction of Dutch disease, theflight of skilled labour and international illwill mean Russia goes into thelatest economic crisis weaker than the Soviet Union in its final years. [38]Capital outflow may have reached $100 billion in 2014.

However, Russias economy had begun to slow before the onset of oil pricedecline, geopolitical tensions and sanctions. Russian GDP grew at 3.4% in2012 and only 1.3% in 2013 [39] largely as a result of abiding structuralbottlenecks. [40] Clearly, corruption is a major problem in Russia. However,only around 8% of firms, when asked to name their biggest obstacle togrowth, indicated corruption. By contrast, over 36% of firms named tax ratesand a further 15% cited finance. [41] An overbearing state and chronic lack ofinvestment seem likely to remain or worsen in the coming years. The WorldBank identified regulatory burden as the main problem stymieing economicdevelopment. It consumed 15% of senior managements time, led to inefficientpublic services and the infusion of informal payments with such publicservices, leading to corruption. While previous growth exploited sparecapacity, this has now been exhausted.

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The legitimacy that economic success brought to the authoritarian Kremlinwas to be selfdefeating even in the unlikely event that prosperity hadcontinued. The success of the economy required, created and progressivelyreinforced the ranks of a new, affluent middle class. The middle class hasgrown to become a quarter of the population in the boom years. [42] It is clearthat such a group lacks the politically docile character on which authoritarianregimes rest. In 2012, Putins resumption of the presidency in an electionperceived to be undemocratic (in fact, probably a reflection of the regimesabiding popularity with working class and rural voters) infuriated the urbanmiddle class who organized protests against him. These were crushed but itdemonstrated clearly the contradiction inherent in authoritarianismlegitimized by economic success [43].

Putin is not as vulnerable as the state of the economy would suggest. Cults ofpersonality arose not in times of plenty but in periods of economic weakness,social discord, waning belief in the functionality and ideology of thegovernment and general cynicism. [44] At such times as Putin currentlyencounters, the legitimacy conferred by political or economic success wasreplaced with a symbolic or affective attachment to the leader [45] who offerspsychological and emotional reassurance [as] a focus of stability and unity, ina world of uncertainties [46]. The current economic crisis and the structuralproblems are not therefore, in themselves, the existential crisis [47] have somecommentators have portrayed them as. They will neither remove Russia fromits current position on the world stage nor topple the regime. However, sincethe economic ravages of the 1990s, the legitimacy of the government has beenheavily invested in its economic achievements. This means that, if Putin is toremain in power, he must increasingly divert attention to new sources ofauthority that can legitimate his regime, namely the expansionist nationalismmanifest in the annexation of Crimea and intervention in the Donbas.

Failure in Ukraine is not equivalent to superficial economic trials nor is thesecurity of the Soviet worldview equivalent to the incoherence left in the wake

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of the breakup of the USSR. The trials of the Soviet people were, in a way,selfaffirming of the Soviet mission, and the Soviet apparatchik directedpopular discontent against the Unions existential enemy: the US. Failure inUkraine could not to be borne so lightly. Arguments concerning whether ornot Ukraine, and Belarus, are actually parts of the Russian nation are notmerely expansionist overtures but expressions of profound instability innational identity. Russias own identity depends on the outcome of itsactions, on the success of its endeavours. [48] The economy is, as it were, asecular issue is not directly capable of assaulting the mystical appeal ofthe leadership. Contrastingly, both the Kremlin and the rebels describe thebattle in Ukraine in explicitly religious terms as a holy war and the city ofDonetsk as Jerusalem. [49] Putin described Crimea as the spiritual source ofRussia, the nations temple mount. [50] The very symbolism on which the oldcult of personality depends is at stake for Russia and for Putin in hisadventurism. Consequently, demonstrable failure in Ukraine is distinct fromother crises and lethal for the leader. Putins image has been noted foradaptability [51] but one feels a retreat now would be an adaption too far.

Three major strains of ideology have been observed fighting for dominanceover Russias idea of itself. [52] Groups ranging from militant nationalists andnostalgic communists to the socalled Eurasianists propose the restoration ofa union, which should be joined by as many of the former Soviet republics aspossible [53] or a restatement of Russian power over its near abroad andnatural sphere of influence. The PanSlavists, among whom the fetedAleksandr Solzhenitsyn is counted, see the ideal form of the Russianfederation as the union of Great Russians, White Russians (Belorussians), andLittle Russians (Ukrainians). [54] This may entail the third idea of the nation asa union of Russophones (russkoiazychnye) and ethnic Russians, 25 million ofwhom were left outside of Russia following the breakup of the USSR. Putin

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has been unwilling, as was his predecessor Boris Yeltsin, to commit to any oneof these concepts but has been content to allude to all of them. He has referredto Ukraine as Little Russia, [55] echoing perfectly the historical slight, [56] andas early as his 2005 Annual Address Putin was lamenting the division of theRussian peoples. [57] Certainly the secondclass status (for examplestatelessness in Latvia), [58] physical harassment and discriminatory legislationare an emotive demonstration of Russias diminished power. [59] Russiasconcern often manifests in a concern for the Russian language, [60] alleged tohave lost 100 million speakers since 1991, [61] the status of which had beenfought over in Ukraine since 2012 [62] and which was threatened in the wake ofYanukovychs fall. [63] As Russias relationship from the west has deteriorated,Putins rhetoric on the subject of the diaspora has intensified, declaring thatthe breakup of the USSR saw the Russian nation became one of the biggest, ifnot the biggest ethnic group in the world to be divided by borders. [64]

Putins often nebulous, allembracing image, [65] increasingly tinged withpatriotism and statism, is suited to actions with which the majority of Russiansagree. The intervention in Ukraine is an area of unusual consensus betweennationalists and Eurasianists, or, as Roman Szplorluk characterizes them,nationbuilders and empiresavers. [66] The former view the russophoneareas of Ukraine, and perhaps the entire country, as an essential component ofthe Russian nation, unfairly separated by false Leninist borders, [67] as archnationalist Aleksandr Solzhenitsyn described them. The Ukrainian conflict is

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of such paramount symbolic importance because its objectives are those ofevery major idea of Russian nationhood. To varying degrees, Eurasianists,PanSlavists and ethnic nationalists all proclaim the importance of theaddition of some or all of Ukraine to the Russian state and nation. Success inUkraine is equivalent to the support of the entire body of nationbuildingthought for Mr Putin. Conversely, failure would render everything hostile tohim and all his rhetoric obsolete.

The decisive shift in the source of legitimacy in Russia away from domesticeconomic success on to the international stage, abusing the place of Ukraine inthe unstable of Russian national idea of itself, is a highrisk strategy.Furthermore, one imagines that it cannot be satisfied simply by Crimea and afrozen conflict in the Donbas. There seems some basis to the Ukrainian PrimeMinisters statements that

[Putin] needs new annexations. The annexation of Crimea has gained him muchapplause at home. But that will not last forever. The Western sanctions are beginningto take hold and the people are suffering. In order to maintain his popularity, Putinhas to commit further international crimes. Otherwise he will be dead politically. [68]

It has become clear that a terrible symmetry is emerging in the politics ofEurope and Russia. Both are driven from previous sources of legitimacy byeconomic turmoil and both turn now to Eastern Europe, principally not solelyUkraine. As their previous sources of authority progressively deteriorate (forEurope, the confidence of its western members for Russia, its economy), bothcome to see their missions in the Eastern Europe as existential. If Europedemonstrably fails, the last and best explanation for its existence will crumbleas its eastern citizens lose confidence in the power of European protection (wesee already how Armenia chose the promise of protection from Russia overpassive alliance with Europe). The European flag lifted aloft in Maidan squareis a tantalizing endorsement of the European ideal. Yet that symbolism wouldswiftly transform into a deathblow to the EUs credibility should it fail to acton the hope entrusted to it. Should the EU demonstrably lose Ukraine toRussia, the crisis will become a monument to the EUs inability to protectEuropeans. Yet, as state media has been at pains to proclaim, Putins failure inUkraine would be Russias failure to defend Russians. Clearly, the conflict isnow so symbolic that neither side can withdraw and only one can triumph.

37 38

The Political and Constitutional Reform Committee of the House of Commonsis currently considering whether the UK should have a written constitution.Tracing the familiar argument around a written constitution for the UK hasnever been more important, but we need to go further than the orthodoxpositions. Common law constitutionalism, discussed elsewhere in this journal,must be seen as a viable alternative to an entirely written constitution that, itwill be argued, would be damaging to our already fragile democracy.

The argument is in two parts. It will first be argued that a written constitutionwould hand power to judges that would be better placed in the hands ofrepresentatives it will then be contended that judges would abuse this power.

Part One: Thinking the Unthinkable

The Supreme Court may review Acts of Parliament for conformity with theconstitution and, where found to be in violation, make a declaration ofunconstitutionality that does not invalidate the statutory provision in question. [68]

Should the UK have a written constitution? The answer that the Political andConstitutional Reform Committee of the House of Commons (PCRC) seemspoised to give [2] is a new one: that there should at the very least be some formof codification in the form of a constitutional Code, constitutionalConsolidation Act, or a fullblown written constitution. It is this thirdproposal which is the most dangerous. The quotation above, from the PCRCssummary of their proposed written constitution, demonstrates the problemwith such a proposal: that a measure designed to create certainty and improve

THE END OF OUR UNWRITTEN CONSTITUTION?Christopher Casson

Candidate, BA (Jurisprudence)christopher.casson@stcatz.ox.ac.uk

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democracy would achieve the very opposite. Contrast it with Article 43 (3) (c)of their actual draft written constitution:

[W]here the declaration [of] unconstitutionality engages with Articles 00, 00, 00, or00, [3] the court shall declare the provision to be invalid, in which case pending theconfirmation or otherwise by the Supreme Court as required by paragraph (a) thecourt may grant a temporary injunction or other temporary relief to a party or mayadjourn the proceedings. [4]

The difference between the two statements should not be downplayed: it isthe purpose of this article to argue that any written constitution butparticularly one with the judicial strikedown provision included would bedetrimental to democracy in the UK. The main arguments against a writtenconstitution are well known, [5] and it is not the purpose of this submission tosummarise them. The aim is to convince the reader that a written constitutionfor the UK would unjustifiably reduce the potential for democratic outcomesto difficult constitutional and humanrights based questions. This is of coursein one sense the very aim of a written constitution: to entrench certainprinciples, procedures, and rights, so that they are difficult to change.

Why then should such an aim be criticised? James Allan, in his bookDemocracy in Decline, [6] puts the argument in the following way: there are asignificant number of issues that cause division among (reasonable, nice, andwell informed) citizens, from abortion to euthanasia to samesex marriage.The best way to resolve these issues is to treat everyones opinion with equalweight and to let the numbers count. In other words, to settle issuesdemocratically. He goes on to suggest that there is no reason to suppose thatthose with law degrees (ie judges) make better decisions with regard to theseissues than those in other professions. [7] The classic counterargument is ofcourse that unfettered popular democracy produces a phenomenon known astyranny of the majority, or sometimes, parliamentary tyranny. [8] Such aphenomenon, according to TRS Allan, one of its critics, results in a system that

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affords insufficient attention to basic human rights. [9] The evidence, however,suggests otherwise. To take just one example, the first selfgoverning nation togive women the vote was New Zealand, [10] another country without a writtenconstitution, and with Parliamentary sovereignty.

There are many countries currently being criticised for serious and frequentbreaches of human rights. [11] Neither Britain nor New Zealand are amongthem. It can then be argued empirically that democracies without judicialreview of primary legislation protect rights just as well, or better, than thosewith such judicial power, as Waldron [12] and even Dworkin (a defender ofjudicial review of legislation) [13] have suggested. This might well be true. Inany event, the more fundamental point might be to question the notion thatmajoritarian democracy can even in theory lead to the undermining of humanrights. As James Allan has argued, [14] a right in the human rights use of theword is a moral claim about the way someone thinks the world ought to be.[15] People disagree profoundly about the true extent of these rights. Contrastthis with (say) contractual rights, where even someone who thinks they oughtto have a particular right under a contract would not attempt to claim thatthey do have such a right, if on a fair reading of the contract they clearlydont. We should connect this to Waldrons argument that in most [16] debatesabout rights, it is not the case that one side is denying the right and the otheraffirming it they are merely interpreting the right differently. [17] There is nopipeline to God as James Allan puts it, [18] or to put the same point inWaldrons terms: even if there areobjective facts, there is no privileged,easy, or uncontroversial access to them. [19] Understood this way, it cannot

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plausibly be argued that a democratic decision has denied human rights, it canonly be said: the majority of people have interpreted this right differently tohow I would like it. The fact that some disagree with the majority on thedefinition of a right is not a reason to set aside the decision of that majority.Dworkin has argued that [judiciallyinterpreted and enforced] constitutionalrightsare not compromises of democracy, but attempts to guarantee it. Inthe light of the above conception of what a right actually is, we must rejectthis as simply inaccurate. We should instead agree with Hutchinson that onlyour conception of democracy, as currently embodied in Parliamentarysovereignty, gives the people the genuine prospect of achieving someparticipatory control over their lives and the values that control them. [20]

Part Two: Judges, Power, and Democracy

Lord Neuberger, UK Supreme Court President, recently claimed that theabsence of a written constitution seriously undermined the Supreme Courtsability to fight off jurisprudence from the European Court of Justice (CJEU).[21] This is a surprising claim to make, given that that is exactly what theSupreme Court did in the recent case of HS2 Action Alliance Ltd v Secretary ofState for Transport. [22] It appears that there are some constitutional principles,even as the constitution currently stands, which EU law cannot override: theremay be fundamental principles, whether contained in other constitutionalinstruments or recognised as common law, of which Parliament when itenacted the European Communities Act 1972 [which precipitated the UKentering the EU] did not either contemplate or authorise the abrogation. [23]Lord Neuberger may not rebuke the CJEU on common law grounds as a partyto a Supreme Court judgment in January 2014, and then claim with impunityin February 2014 that a written constitution is required to fight off that samecourt. [24] Indeed, as Mark Elliott recognises, HS2 points to a hierarchy ofconstitutional principles, of which the European Communities Act 1972 is not

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at the top, and which may not be confined to statutes at all. [25] The point isthat Lord Neubergers claim that a written constitution is needed as a defenceto the supremacy of EU law is not borne out by evidence from his own court.

What, then, would a written constitution achieve with regards to judicialpower? It has already been argued that a written constitution would diminishdemocracy by effectively removing from the political sphere debates aroundany constitutional procedures, conventions, or rights that the constitutioncontains. Since changes to the constitution would require a supermajority inParliament, most of the time it would be senior judges making these difficultconstitutional decisions, as indeed happens in countries with writtenconstitutions. [26] This is especially democratically damaging in regards to theBill of Rights section of the draft written constitution, under which muchlitigation is likely to arise. In the PCRCs draft written constitution, [27] Article38 (3) provides that social and economic rights detailed in Article 38 will notbe enforceable in any court. [28] By implication, the rest of the rights detailedwill be enforceable. It might be thought that this is not a problem almosteveryone agrees in principle with substantive values of equality and fairnessthat human rights seek to uphold. The problem is that the question ofinterpreting these rights, under a written constitution, becomes one forjudges, formulated in this language, instead of one for the public, decided atelections (or, arguably, referenda) [29] based on the choices available.

As a recent example of the comparative values of each system, take the waysamesex marriage was introduced in the UK and in California. In the UK,following extended public debate, Parliament passed the Marriage (Same SexCouples) Act 2013. In California, a similar public debate produced theopposite result in a referendum on the issue. Campaigners, however, declinedto accept this, and challenged the result in the courts on the grounds that itbreached the US constitution. The US Supreme Court eventually held, onconstitutional grounds, that samesex marriage would be allowed inCalifornia. [30] For the campaigners the result was more important than the

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process they appe