Against the failure of the legal imagination. Literary narratives, Brexit and the fate of the Anglo-British constitution

This chapter focuses on the challenges that lie ahead for the United Kingdom following Brexit. It contends that the sense of anxiety percolating through the Anglo-British constitution is triggered by a profound lack of legal imagination, and that such a lack is also a consequence of legal positivism. He proposes to resort to the British manufacturing tradition in order to sidestep such lack of imagination. Here, he identifies a twofold interaction between imagination and legislative process, which can usefully inform a transition into a new legal reality. Nicolini argues that anxiety can be sidestepped, if only we consider that both legal imagination and legislative action were conceived as a means for recovering public and shared values within British society. In his view, not only does the law organise society, but it also secures predictability by reforms – complementing legal imagination by giving the latter a rational form. To this extent, Britain has always been able to manage complexity by what Nicolini terms ‘acts of constitutional creativity’ deeply rooted in British legal culture. The history of Britain has always been a history of reimagination whereby the UK has developed a ‘complex’ constitutional system.