Honest and competent administration is essential to legitimate constitutional government. Administrators make rules with the force of law and apply the law to particular cases. The case-by-case implementation of established policies requires citizens to trust in the impartial application of the law. However, impartiality is not sufficient for administrative legitimacy. In addition, policymaking by the executive and the agencies needs to be consistent both with the competent use of expertise and with accountability to citizens and interest groups. Policymaking delegation is the inevitable result of the weakness of the legislative process as a site for detailed policy prescriptions. Gaps and ambiguities are inevitable. Furthermore, the electoral process is too aggregated and episodic to be the only legitimate route for citizen influence on policymaking. Referenda and surveys are not a responsible option for most policy choices; they risk measuring the views of uninformed individuals, often reacting to emotional appeals. Hence, other routes to public involvement beyond voting and surveys are a crucial aspect of legitimate, representative democracy. Administrative law scholarship needs to articulate practical ways to combine public input with the competent application of technical information to policy.

In this chapter, ‘European constitutionalism’ refers to European Union constitutionalism. European constitutionalism will be examined as an epitome of transnational constitutionalism; i.e. as a species of constitutionalism distinct from state or national constitutionalism.

‘In law context is everything.’ So said Lord Steyn in the case of R (Daly) v. Secretary of State for the Home Department.1 In doing so, he was perhaps making a statement of the blindingly obvious, but that does not undermine either the veracity or the broad pertinence of the observation. Indeed, it is an insight onto which the comparative lawyer in particular, and perhaps the comparative constitutional lawyer even more especially, must fasten. One of the great virtues of comparative study is its capacity to illuminate one’s comprehension of a given legal phenomenon or system through an appreciation of how and why things are done differently elsewhere. Understanding why such differences arise can illuminate one’s ‘home’ jurisdiction in fresh ways, subtly, or even radically, changing one’s perspective, and opening up new avenues of inquiry. This can be particularly instructive when the jurisdictions under consideration are, in general, relatively similar – for in such circumstances, individual points of contrast are not readily dismissible as functions of macro-divergence. It is for this reason that comparative scholarship that examines different members of a jurisdictional family, such as the common law systems that form the focus of this book, can be so fruitful.

From its beginnings as a relatively obscure and exotic subject studied by a devoted few, comparative constitutionalism has developed into one of the more vibrant and exciting subjects in contemporary legal scholarship, and has become a cornerstone of constitutional jurisprudence and constitution-making in an increasing number of countries worldwide. This tremendous renaissance in comparative constitutional inquiry reflects a confluence of factors. Chief among them are extensive democratization and constitutionalization trends worldwide; the internalization of the legal profession and of legal education; and the rise of communication and information technologies that facilitate considerably the diffusion of constitutional concepts, and foster cross-national jurisprudential dialogue. The result has been an ever-expanding interest among scholars, judges, practitioners and policymakers in the transnational migration of constitutional ideas, and in the comparative study of constitutions and constitutionalism more generally.

It was in the nineteenth century that a philosophical enterprise begun in the eighteenth century was first identified as ‘Scottish philosophy’, and arguably, philosophical discussion and debate were more intense and more culturally prominent in nineteenth-century Scotland than it had ever been before. Yet, while philosophy in the eighteenth-century Scottish Enlightenment is now studied to the point of being a major academic industry, Scottish philosophy in the nineteenth century is virtually unknown. Hutcheson, Hume, Reid and Smith are names familiar to almost all philosophers, Brown, Hamilton, Ferrier and Bain to hardly any. This chapter aims to explain why one period of Scottish philosophy should remain perennially interesting and intensively studied and the period that followed it should fall so nearly into oblivion. It elaborates an answer couched in terms of the story of Scottish philosophy itself and argues that the nineteenth century saw the unravelling of the great philosophical project that had animated the eighteenth.

This chapter examines the awareness of modern philosophy and its methods that Scottish thinkers brought to bear on the workings of the human mind. Both George Turnbull and Thomas Reid extend elements of Newton’s regulae, while they and others also deploy methods from Bacon, natural history, and the experimental philosophy more generally. Locke figures also as an important source of explanation for perception, and the Scots, principally Francis Hutcheson, extend this perceptual model to account for the sense of beauty and the moral sense. Both Turnbull and David Hume are notable for their constructive development of associationism, while Reid, emphasizing the objects of the mind s conscious awareness, introduces a new realism into Scottish philosophy.

The chapter explores conjectural history, stadial history, and anthropology in the Scottish Enlightenment. In the writings of Adam Smith, John Millar, David Hume, Lord Kames, and many others concepts that had been assumed to have no history — such as sentiment — were rethought against the background of a theory of historical stages and progress. Special attention is paid to the analogies between animals and humans, and to race.

Driven above all by the desire to reconcile aesthetic and moral value, Scottish philosophers, poets and artists made essential contributions to eighteenth-century aesthetics and art theory. This essay examines some of the key moments in the history of Scottish aesthetics from the 1720s to the early years of the nineteenth century. In particular, it surveys the ways in which Francis Hutcheson, David Hume, George Turnbull, Allan Ramsay, Lord Kames, William Duff, Alexander Gerard, Thomas Reid, Archibald Alison and Dugald Stewart debated the respective roles of the senses, reason and the imagination in the appreciation of beauty; asked whether beauty is in the object or the subject; pondered the relationship between virtue, wealth and aesthetic judgement; and considered the existence of a universal standard of taste.

The legal theory of the Scottish Enlightenment is marked by the engagement of the legal profession generally in theorizing, with a strong interest in history and law, leading on to investigations of a proto-anthropological and proto–sociological nature. This led to a move away from an emphasis on legislation to one on development of the law through the formulation of new rules through the decision of specific cases. The legal theorizing of the Scottish Enlightenment did not lead to codification projects, but favoured piecemeal incremental reform of the law through the operation of the courts in the elaboration of law in their decisions and opinions.

Interest in what has been called a ‘moral sense’ originated in the late 17th century, as part of a philosophical debate about humans’ moral nature. Participants in the debate agreed on rejecting four views of human morality commonly held at the time. They found (1) the Cambridge Platonists’ moral rationalism and (2) Gershom Carmichael’s (and others’) natural law theories of morality too remote from actual processes of moral judgment and decision making; (3) they rejected Thomas Hobbes’ psychological egoism as excessively reductive; and (4) they found moral relativism objectionable on normative grounds, since they were committed to the defence of moral universalism. The article provides an overview over the history of moral sense theories. It briefly presents the versions developed by Thomas Burnet, Anthony Ashley-Cooper, 3rd Earl of Shaftesbury, Francis Hutcheson, Joseph Butler, and Henry Home Lord Kames, and then provides a brief account of the moral theories by David Hume and Adam Smith who, while adherents of moral sentimentalism, rejected the assumption of a moral sense.