Politics, Law and Legitimacy: Reconstructing Brexit from a Systems Theory Perspective

This chapter considers whether viewing the political paralysis and constitutional crises that have characterised the period since the United Kingdom’s referendum on European Union membership in 2016 from a systems theory perspective offers new insights. It observes that the events of this period reveal a confusion of the binary coding of the political system as well as doubts as to the amenability of the problem as formulated to the process chosen. It also notes that the difficulties were compounded by the legal misdescription of the referendum, with a consequent impact on popular expectations. Government efforts to claim support for prerogative powers from the popular mandate, thus overriding the principles of parliamentary sovereignty and accountability produced entirely predictable responses from the courts. The initial misdescription of the referendum, however, meant that the judicial articulation of the clear principles of constitutional law had the effect in many cases of disappointing popular normative expectations—the precise opposite of the function of the legal system. The chapter, therefore, makes no observation on whether Brexit is a good thing or a bad thing, nor on whether the UK requires a written constitution. It does, however, reinforce the need for the existing clear legal principles of UK constitutional law to be appropriately recognised so that they can operate to underpin the smooth functioning of the political system.