ABSTRACT
Patrick McAuslan’s distinctive contribution to the field of public law scholarship is assessed in this chapter. McAuslan’s approach was to explore the interactions between law and other disciplines. A major focus of his work on urban planning law exposed many of the boundaries of the UK’s Constitution, particularly its political and institutional structures in urban planning. McAuslan was sensitive to the political exercise of power, often cloaked in legal language, and its potential abuse, for the advancement of powerful interests at the expense of ordinary citizens. It is important to put McAuslan’s work in the context at the time it was written. Even in the latetwentieth century, public law scholars in Britain had to overcome some serious hurdles to move outside the traditional boundaries of law that defined legal scholarship of the period. Public law was narrowly defined at this time but it was becoming clear that areas of government, economics, political and social change were increasingly relevant to facilitating a true understanding of law. Even so such issues were not fully considered by many lawyers. The Diceyan conservatism of the nineteenth century expressed in his Law of the Constitution (Dicey, 1959) had rigidly defined the boundaries of public law, even though many of Dicey’s ideas on administrative law were robustly and successfully challenged by Jennings (Jennings 1933) in 1933, Dicey’s legacy remained. Many legal academics and practitioners accepted Dicey’s understanding of legal sovereignty though doubting that the rule of law was capable of holding parliamentary sovereignty to account against the excess of executive power. As Ernest Barker famously observed, few lawyers had turned their attention to ‘the fundamental questions of politics’. As public law engaged with the system of government, how the country was governed was often ignored leaving political studies to engage with govern - ment and how it related to administration or even law (see von Gneist 1886; Johnson 1977). Many lawyers versed in the discipline of law feared to step outside the close and empirically driven confines of the legal profession. One reason for such inhibition came from the way lawyers tended to a
technical and instrumental approach to their subject that was not always appropriate for a deeper understanding of government and administration. There was also considerable caution among the legal profession in entering into the world of political science which was occupied by ‘politicians with a philosophic gift or philosophers with a practical interest’ (Barker Intro - duction to Gierke 1934, p. xix; and also Barker 1947. Both sources quoted in Collini 2011, p. 251). Separating party politics from the academic study of law was a skill facilitated greatly by the adoption of a scientific method - ology for legal case law analysis. It was ‘objective’ in focus and practical/ professional in nature. Studying law in the broader context of its relevance to society was not easily achieved or appreciated. Setting boundaries between law and social science disciplines such as philosophy, economics and political studies (see Johnson 1977) proved to be excessively demand - ing and time consuming.
