Constitutional theory: A 25th anniversary essay

Oxford Journal of Legal Studies

Volumn 25, Issue 2, 2005, Pages 183-202

  Loughlin, Martin ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

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EID: 27744596210     PISSN: 01436503     EISSN: None     Source Type: Journal    
DOI: 10.1093/ojls/gqi010     Document Type: Review

References (131)

1. T. Paine, 'Rights of Man' in his Rights of Man, Common Sense and other Political Writings [1791], M. Philp (ed.) (Oxford: Oxford University Press, 1995), 83-331, 1 at 122.
2. J. Madison, A. Hamilton and J. Jay, The Federalist Papers [1788], I. Kramnick (ed.) (London: Penguin, 1987), 87.
3. J. de Maistre, 'Study on Sovereignty' [1794-5] in Jack Lively (ed.), The Works of Joseph de Maistre (New York: Macmillan, 1965), 93-129 at 107.
4. Ibid 103.
5. Ibid 103-4.
6. G. W. F. Hegel, The Philosophy of Mind [1830], W. Wallace (trans.) (Oxford: Clarendon Press, 1971), §540.
7. See M. Landau, 'On the use of metaphor in political analysis' in his Political Theory and Political Science: Studies in the Methodology of Political Inquiry (New Jersey: Humanities Press, 1979), ch 3.
8. See, e.g. G. Marshall, Constitutional Theory (Oxford: Clarendon Press, 1971) which analyses the meaning of such concepts as 'state', 'sovereignty', 'equality under the law' etc.
9. See, e.g. R. Hardin, Liberalism, Constitutionalism, and Democracy (Oxford: Oxford University Press, 1999).
10. Note, e.g. J. Rawls, A Theory of Justice (Oxford: Oxford University Press, 1972), 227: 'our discussion is part of a theory of justice and must not be mistaken for a theory of the political system. We are in a way describing an ideal arrangement'.
11. M. Oakeshott, 'What is political theory?' [1973] in his What is History? And other essays L. O'Sullivan (ed.) (Exeter: Imprint Academic, 2004), 391-402, 397.
12. See further M. Loughlin, 'Theory and Values in Public Law: An Interpretation' 2005 PL 46-64, at 62-64.
13. Viewed in this light, the classical text of constitutional theory is G. W. F. Hegel, Philosophy of Right [1821], T. M. Knox (trans.) (Oxford: Oxford University Press, 1952). Hegel argues that the task of constitutional theory is 'the apprehension of the present and the actual, not the erection of a beyond, supposed to exist, God knows where, or rather which exists, and we can perfectly well say where, namely in the error of a one-sided, empty, ratiocination' (ibid at 10).
14. Oakeshott, above n 11 at 400.
15. C. Taylor, 'Interpretation and the Sciences of Man' in his Philosophical Papers, vol. 2 (Cambridge: Cambridge University Press, 1985), ch 1.
16. J-J Rousseau, The Social Contract [1762], M. Cranston (trans.) (Harmondsworth: Penguin, 1968), iv.8.
17. The Politics, Bk.I.ii (italics supplied).
18. The implications of this analysis for legal, political and constitutional thought are clearly drawn in F. A. Hayek, Law, Legislation and Liberty: Vol. 1 Rules and Order (London: Routledge and Kegan Paul, 1973).
19. This is the essential distinction to be drawn between the political (and juristic) theories of Hobbes and Locke. For thought-provoking account of how the social becomes ubiquitous see: M. Foucault, Society Must be Defended (London: Penguin, 2003).
20. See Rawls, above n 10 at 7.
21. cf. S. S. Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Princeton: Princeton University Press, expanded edn. 2004), 532-34.
22. Rawls, above n 10 at 3-4.
23. Ibid at 227.
24. Ibid at 196 (italics supplied).
25. Ibid at 16.
26. See Wolin, above n 20 at 530.
27. J. Rawls, Political Liberalism (New York: Columbia University Press, rev.edn. 1996), 137.
28. Ibid at xx.
29. Ibid at xviii-xix.
30. Rawls, 'The Idea of Public Reason Revisited' in his The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999), 131 at 132.
31. Cf. M. Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003), esp. ch 8.
32. Rawls, above n 26 at 233.
33. cf. B. Ackerman, We the People: Foundations (Cambridge, Mass.: Belknap Press, 1991), ch 1.
34. Rawls, above n 26 at 233
35. Ibid at 216.
36. Ibid at 231.
37. Ibid.
38. Rawls' work also helps to explain why the Weimar republic, a classic case of the failure of a liberal democratic constitution to sustain itself in the face of intense political conflict, has recently become the object of extensive investigation. See, e.g. P. C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism (Duke University Press, 1997);
39. J. P. McCormick, Carl Schmitt's Critique of Liberalism (Cambridge: Cambridge University Press, 1997);
40. D. Dyzenhaus, Legality and Legitimacy: Schmitt, Kelsen, and Heller in Weimar (Oxford: Oxford University Press, 1999);
41. E. Kennedy, Constitutional Failure: Carl Schmitt in Weimar (Durham, N.C.: Duke University Press, 2004).
42. Rawls, above n 26 at xxvii.
43. Ibid at xxvii-xxviii.
44. Ibid at xxviii.
45. Ibid.
46. See, e.g. J. Habermas, 'Reconciliation through the public use of reason' in his The Inclusion of the Other: Studies in Political Theory (Cambridge: Polity Press, 1999), 49-73 at 71 (arguing that Rawls gives priority to constitutional protection of the private sphere and this 'not only contradicts the republican intuition that popular sovereignty and human rights are nourished by the same root' but 'also conflicts with historical experience').
47. Rawls maintains that rights to personal property needed for personal independence and self-respect are part of basic liberties but that wider conceptions - rights to acquisition and to control natural resources and the means of production - are not (since they are not necessary for the development of moral powers): Above n 26 at 298. Such property rights must depend 'upon the traditions and social institutions of a country and its particular problems and historical circumstances' (ibid at 338). But does this not mean that it must ultimately be subject to 'public reason', which is not the reason of democracy but of the supreme court?
48. Cf. A. Negri, Insurgencies: Constituent Power and the Modern State, M. Boscagli (trans.) (Minneapolis: University of Minnesota Press, 1999), ch 4.
49. Rawls, above n 26 at 161 (italics supplied).
50. See, e.g. Rawls, above n 26 at 152: 'in affirming a political conception of justice we may eventually have to assert at least certain aspects of our own comprehensive religious or philosophical doctrine (by no means necessarily fully comprehensive). This will happen whenever someone insists, for example, that certain questions are so fundamental that to insure their being rightly settled justifies civil strife.... At this point we may have no alternative but to deny this, or to imply its denial and hence to maintain the kind of things we had hoped to avoid.'
51. Ibid at 13-14.
52. See J. Rawls, 'The Priority of the Right and Ideas of the Good' in his Collected Papers, S. Freeman ed (Cambridge, Mass: Harvard University Press, 1999), 449-72. Maistre's fundamentalism is rejected as a religious comprehensive doctrine that belongs to the social but not the political world (at 462) and Paine's radical form of civic humanism is denounced as a comprehensive doctrine that holds that 'man is a social, even a political animal, whose essential nature is most fully achieved in a democratic society in which there is widespread and vigorous participation in political life' (at 469).
53. See, e.g. Dyzenhaus, above n 36 at 231: 'Political liberalism is thus political in the Schmittian sense. It asserts its truth against every challenge. But it is also political in just the contradictory way Schmitt thought liberalism had to be. At the same time as it asserts its truth, at least when it is hard pressed by its enemies, it seeks to ban truth from politics, claiming that it is neutral between all positions. But this neutrality is one between fully privatised moralities, which is what liberalism aims to achieve.'
54. J-J.Rousseau, above n 16, esp. II.ii, II.iii.;
55. I. Kant, 'Perpetual Peace: A Philosophical Sketch' in his Political Writings, Hans Reiss (ed.) (Cambridge: Cambridge University Press, 2nd edn, 1991), 93-130, esp. 125.
56. See J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press, 1997), 127.
57. Robert Fine has astutely observed that this work can be read as an extended commentary on Hegel's Philosophy of Right: See R. Fine, Philosophical Investigations: Hegel, Marx, Arendt (London: Routledge, 2001), 20.
58. J. Habermas, 'On the Internal Relation between the Rule of Law and Democracy' in The Inclusion of the Other, above n 41, ch 10.
59. This is an illustration of what has been called 'constraint theory'. See J. Elster, Ulysses Unbound: Studies in Rationality, Precommitment and Constraints (Cambridge: Cambridge University Press, 2000);
60. S. Holmes, Passions and Constraint: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995), esp. ch 5.
61. J. Habermas, 'Constitutional democracy: A paradoxical union of contradictory principles?' (2001) 29 Political Theory 766-81 at 778-79.
62. Paine, above n 1 at 91.
63. Ibid at 92.
64. Habermas, above n 53 at 775.
65. J. Habermas, 'The Postnational Constellation and the Future of Democracy' in his The Postnational Constellation: Political Essays (Cambridge: Polity Press, 2001), 58-112 at 74.
66. Cf. Hegel, above n 13 (dialectic between abstract and concrete conceptions of right).
67. Cf. R. Dworkin's 'right answer' thesis in Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977) with his recent statement that the thesis is to be understood within the frame of 'essentially contested concepts': Dworkin, 'Thirty years on' (2002) 115 Harv. L. Rev. 1655-87 at 1686.
68. Cf. similarly D. Beatty, Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995), asserting the universal claims of rationality and proportionality, with his The Ultimate Rule of Law (Oxford: Oxford University Press, 2003), which promotes a more pragmatic accommodation through proportionality.
69. A related adjustment can be seen in T. R. S. Allan's movement from a historical to a normative claim, signalled in a switch from definite to indefinite article in his monographs, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford: Clarendon Press, 1993) and Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001).
70. See A. de Tocqueville, Democracy in America [1835], H. Reeve (trans.) (New York: Vintage Books, 1990) vol.1, 278, who argues that one of the most important functions of lawyers is 'to neutralize the vices inherent in popular government' by 'secretly oppos[ing] their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience'.
71. This juristic account is most clearly expressed in L. L. Fuller, The Morality of Law (New Haven: Yale University Press, 2nd edn, 1969), ch 2. It might be noted that what from a citizen's perspective may be viewed as moral qualities of law, are from a governmental perspective prudential criteria.
72. See S. Holmes, 'Lineages of the Rule of Law' in J. M. Maravall and A. Przeworski (eds), Democracy and the Rule of Law (Cambridge: Cambridge University Press, 2003), ch 1.
73. C. L. Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton: Princeton University Press, 1948);
74. J. Ferejohn and P. Pasquino, 'The Law of the Exception: A Typology of Emergency Powers' (2004) 2 Int. J. of Constitutional Law 210-39.
75. Article 48 of the Weimar Constitution is perhaps the most well-documented of these: See, e.g. Caldwell, above n 36, esp. ch 6.
76. cf. A. V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 8th edn, 1915), ch 8. But note Dicey's comment (at 408): 'There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken.... The Ministry must break the law and trust for the protection of an Act of Indemnity' (italics supplied).
77. Consider, e.g. Ackerman's important point that the American export of a formal separation of powers to Latin American countries became a significant contributory factor in the transformation of liberal constitutional forms into sovereign dictatorships: See B. Ackerman, 'The New Separation of Powers' (1999-00) 113 Harv. Law Rev. 633-729 at 645-46.
78. This is, of course, precisely the route through which Hitler was able to consolidate power. The promulgation of the Emergency Decree of 28 February 1933 (the Reichstag fire decree) thus became, in effect, the constitutional charter of the Third Reich.
79. Ex p. Milligan 71 US 2 (1866) at 120-21, per Davis J: 'No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its [sc. the constitution's] provisions can be suspended during any of the great emergencies of government. Such a doctrine leads directly to anarchy or despotism...'.
80. B. Ackerman, 'Don't Panic' London Review of Books, 7 February, 2002, 15-16.
81. Ibid.
82. O. Gross, 'Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?' (2003) 112 Yale LJ 1011-1134, at 1071-72.
83. Thus, Israel began life under a 'temporary' emergency regime in 1948, and this has remained in place ever since, and the Prevention of Terrorism legislation introduced on a temporary basis in the UK in 1974 was periodically re-enacted and in 1989 made permanent: See Gross, ibid, 1091-92.
84. Gross also notes the danger of assimilation, using the illustration of Ireland which in 1984 integrated its emergency provisions, in existence since 1939, into its ordinary criminal legislation, signifying a shift from a 'due process' to 'crime control' model: Ibid 1973-74.
85. D. Dyzenhaus, 'The State of Emergency in Legal Theory' in M. Hor, V. Ramraj and K. Roach (eds), Global anti-terrorism law and policy: regional perspectives (Cambridge: Cambridge University Press, forthcoming 2005).
86. See also Fuller, above n 61 at 54-55.
87. C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty [1922] (Cambridge, Mass.: MIT Press, 1988), 5.
88. Dicey, above n 64.
89. G. Agamben, State of Exception (Chicago: University of Chicago Press, 2005), 23.
90. Schmitt, above n 73 at 12.
91. Consequently, the ruling of the House of Lords in A. v Secretary of State for the Home Department (2004] UKHL 56 (holding that powers of detention against aliens was discriminatory) may lead to detention powers being extended more generally to citizens: Statement of Home Secretary 'Measures to combat terrorism' HC Debs vol.430, cols. 305-9 (26 January, 2005). The application of a principle of legal equality does not always promote maximum liberty. See now the Prevention of Terrorism Act 2005.
92. It might be noted that there is a more general aspect of the norm-exception dichotomy which here cannot properly be addressed. In essence it is this: If the exception concerns the manner in which government takes necessary discretionary action to promote the safety and welfare of the people in ways that fail to respect the separation of powers (the norm), to what extent has modern government in reality established the conditions in which the exceptional state has been transformed into the norm? In other words, to what extent has the normative constitution now been transformed into a dignified facade behind which the efficient workings of executive government, blending legislative, executive and judicial power, carries on its administrative business? See, e.g., O. Beaud, 'Constitution et constitutionalisme' in P. Reynaud and S. Rials (ed.), Dictionnaire de philosophie politique (Paris: Presses universitaires de France, 1996), 117-26 (identifying a third - deformalized - type of constitutionalism concerned with promoting the social conditions of existence of the people).
93. J. Bodin, The Six Bookes of a Commonweale [1576], R. Knolles (trans.) (Cambridge, Mass: Harvard University Press, 1962), iv.6.
94. See J. Habermas, 'On the Relation between the Nation, the Rule of Law, and Democracy' in Habermas, above n 41, 129-53
95. cf. J. S. Mill, 'Considerations on Representative Government' [1861] in his Three Essays (Oxford: Oxford Univerfsity Press, 1975), 144-423 at 382: 'Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist'.
96. See J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995);
97. D. Ivison, P. Patton and W. Sanders (eds), Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press, 2000).
98. Note also Schmitt's argument that the establishment in 16th and 17th centuries of an Amity Line which distinguished between the European world and the 'new world' created a zone of exception within which colonial wars were conducted, whilst limiting the pursuit European wars and thereby creating the conditions for the development of public international law: C. Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum [1950] (New York: Telos Press, 2003).
99. Ibid at 97.
100. A subset of this general issue focuses on the politics of remembering and forgetting in making the transition from authoritarian to liberal societies: See R. G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000).
101. W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995), 1.
102. See I. M. Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990).
103. See B. Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, Mass.: Harvard University Press, 2001);
104. S. Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton: Princeton University Press, 2002);
105. A. Gutmann, Identity in Democracy (Princeton: Princeton University Press, 2003).
106. C. Taylor, 'The Politics of Recognition' in his Philosophical Arguments (Cambridge, Mass.: Harvard University Press, 1995), 225-56 at 237.
107. Hegel, above n 13 at 11.
108. See Benhabib, above n 86.
109. See, e.g. P. Havemann (ed.), Indigenous Peoples' Rights in Australia, Canada and New Zealand (Auckland: Oxford University Press, 1999).
110. See, e.g. K. McRoberts, Quebec: Social Change and Political Crisis (Toronto: McClelland & Stewart, 3rd edn, 1993).
111. See, e.g. M. Keating, Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era (Oxford: Oxford University Press, 2001);
112. S. Tierney, Constitutional Law and National Pluralism (Oxford: Oxford University Press, 2004).
113. This point in turn raises the issue of whether a liberal state is required to offer a right of secession: See Patriation Reference (Reference re Amendment of the Constitution of Canada) [1981] 1 SCR 753
114. M. Weinstock, 'Constitutionalizing the right to secede' (2001) 9 J. of Political Philosophy 182-203.
115. cf. Habermas, above n 80 at 140-43.
116. Tully, above n 81 at 183-84.
117. And compare Tully's use of Bill Reid's sculpture, The spirit of Haida Gwaii, with Habermas' 'boat' metaphor: Above n 56.
118. É. Balibar, We, the People of Europe? Reflections on Transnational Citizenship (Princeton: Princeton University Press, 2004), 56.
119. See N. Walker, 'The Idea of Constitutional Pluralism' (2002) 65 MLR 317-59.
120. cf. Hegel, above n 13, 227-28: 'the French Revolutionaries destroyed once more the institutions which they had made themselves, since any institution whatever is antagonistic to the abstract self-consciousness of equality'.
121. Kant, above n 49
122. see M. Nussbaum, 'Kant and Stoic Cosmopolitanism' (1997) 5 J. of Political Philosophy 1.
123. D. Archibugi, D. Held and M. Kölher (eds), Re-imagining Political Community (Cambridge: Polity, 1998);
124. P. Eleftheriades, 'Cosmopolitan law' (2003) 9 European L J 241.
125. See, e.g. W. Rasch, Sovereignty and its Discontents: On the Primacy of Conflict and the Structure of the Political (London: Birkbeck Law Press, 2004), esp. ch 8.
126. See, e.g. Treaty on European Union, Art. 6: 'The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States'.
127. Habermas, above n 57.
128. J. Habermas, 'Why Europe needs a Constitution' (2001) 11 New Left Review 5-26 at 6.
129. See U. K. Preuss, 'The Constitution of a European Democracy and the Role of the Nation State' (1999) 12 Ratio Juris 417-28.
130. 'Learning from Catastrophe? A Look Back at the Short Twentieth Century' in Habermas, above n 57, 38-57 at 55.
131. Hegel, above n 13 at 224.