How (Not) to Break Up: Constituent Power and Alternative Pathways to Scottish Independence

Raffael N Fasel and Shona Wilson Stark

Oxford Journal of Legal Studies, 2024, vol. 44, issue 1, 1-27

Abstract: In October 2022, the UK Supreme Court unanimously held that the Scottish Parliament lacks the power to legislate for a second referendum on Scottish independence (Indyref 2) absent an enabling Order by the UK government under section 30 of the Scotland Act 1998. With no such Order forthcoming, alternative pathways to Indyref 2 are being investigated. In this article, we examine two such potential pathways—a plebiscitary election and an unauthorised referendum—through the lens of constituent power. We argue that both pathways are theoretically available if one accepts (as we argue) that the Scottish people is the bearer of constituent power. However, we conclude that there are significant obstacles dotting both potential pathways, and as such the only feasible route to internationally recognised statehood for Scotland is via political negotiation.

Keywords: Scottish independence; Indyref 2; referenda; constituent power; devolution (search for similar items in EconPapers)
Date: 2024
References: Add references at CitEc
Citations:

Downloads: (external link)
http://hdl.handle.net/10.1093/ojls/gqad022 (application/pdf)
Access to full text is restricted to subscribers.

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:oup:oxjlsj:v:44:y:2024:i:1:p:1-27.

Access Statistics for this article

Oxford Journal of Legal Studies is currently edited by Liz Fisher, Stefan Enchelmaier, Andreas Televantos, Liora Lazarus and Jennifer Payne

More articles in Oxford Journal of Legal Studies from Oxford University Press
Bibliographic data for series maintained by Oxford University Press ().