La dette souveraine, les banques centrales et le droit des finances publiques dans la tradition de Westminster

Abstract

Anglophone analyses of public finance law conventionally focus on three topics: taxation, appropriation (the national budget process and legislation), and audit. Within the Westminster tradition, those topics are collected in the idea of 'parliamentary control of public money': a concept embedded in constitutional thought by AV dicey at the end of the 19th century, and repeated and developed by influential jurists through the 20th and into the 21st century. Parliamentary control of public finance, so it goes, is premised on twin constitutional pillars: parliamentary sovereignty and the rule of law. A blinkered focus on those three core public finance activities (tax, appropriation and audit) has obscured the importance of other tectonic aspects of the financial and economic profile of sovereign governments: sovereign debt and monetary authority. For the most part, those two subject matters have been neglected in public law and constitutional scholarship in the Anglophone world. There are few if any major engagements with the legal framework of sovereign debt markets, or the statutory integration of central banking into the mechanisms and institutions of public finance.

This chapter seeks to fill those gaps in the intellectual fabric of legal and constitutional studies of public finance in the common law tradition. Part 1 will explore the basic constitutional model of Westminster public finance informed by an understanding of sovereign debt markets and central banking up to the 20th century. Part 2 will carry the legal and institutional review of sovereign borrowing and central banking into the modern British state. Part 3 will then explain the development of similar but distinct legal models of public finance and financial constitutionalism in Australia, Canada and New Zealand. The Chapter will close by observing the complexities of viewing core constitutional concepts through a public financial lens. Throughout, the chapter will focus on the legal and constitutional structure of parliamentary supply and appropriation, sovereign borrowing and central banking. Show more