The paradox of constitutionalism or the potential of constitutional theory?

Oxford Journal of Legal Studies

Volumn 28, Issue 2, 2008, Pages 343-367

  Galligan, D J ^a,b  

^a UNIVERSITY OF OXFORD   (United Kingdom)

^b UNIVERSITY OF SIENA   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 47049095823     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqn007     Document Type: Article

References (103)

1. Loughlin and Walker, 1.
2. For an analysis. see B Manin, The Principles of Representative Government (CUP. Cambridge 1999).
3. Lowhlin and Walker, 2.
4. The normative approach to constitutions is well-explained in D Dyzenhaus, 'The Politics of the Question of Constituent Power' in Loughlin and Walker (hereafter Dyzenhaus).
5. Dyzenhaus contends that some of the normative principles, 'will be necessary to make sense of legal practice' (at 144) suggesting perhaps that they are immanent in legal practice.
6. T Nagel, "The Central Questions' London Review of Books, 3 February 2004 12 at 13;
7. for further discussion of conceptual analysis, see A Ryan, The Philosophy of the Social Sciences (Macmillan, London 1970)
8. and P Baert, Philosophy of the Social Sciences (Polity, Cambridge 2005).
9. For a recent broadside against the notion of descriptive theory see R Dworkin, Justice in Robes (Harvard University Press, London 2006).
10. I have discussed these issues at mor length in DJ Galligan, Law in Modern Society (OUP, Oxford 2006) chs 1 and 2.
11. Loughlin and Walker, 'Introduction' 1.
12. Ibid 1.
13. J Tully, "The Imperialism of Modern Constitutional Democracy' in Loughlin and Walker (hereafter Tully).
14. S Holmes, On the Passions and Constraint (University of Chicago Press, Chicago 1995) 134.
15. Quoted in Holmes (n 12) 152.
16. The Oxford English Dictionary allows several meanings from logical inconsistency to being contrary to received opinion to absurdity.
17. It is the second that occurs most often in legal and political theory and is usually put in terms of restrictions on the will of the majority.
18. Holmes (n 12) ch 5.
19. Loughlin and Walker, 'Introduction';
20. C Mollers, "We are (afraid of) the People': Constituent Power in German Constitutionalism' (hereafter Mollers) and UK Preuss, 'The Exercise of Constituent Powers in Central and Eastern Europe' (hereafter Preuss);
21. R Nickel, 'Private and Public Autonomy Revisited: Habermas' Concept of Co-originality in Times of Globalization and the Militant Security State' (hereafter Nickel), all in Loughlin and Walker.
22. For discussion of this idea in a different context, see A Marmor, Positive Law and Objective Values (Clarendon Press, Oxford 2001) ch 1.
23. See further Holmes (n 12), Introduction and ch 5.
24. There is an alternative constitutional tradition, largely now concealed, which is displayed in John McCormick's essay: 'People and Elites in Republican Constitutions, Traditional and Modern' (hereinafter McCormick).
25. Loughlin and Walker, 1.
26. M Sonenscher, Introduction to E Sieyès, in M Sonenscher (cd), Political Writings (Hackett, Indianapolis 2003) viii.
27. A parallel may be drawn between Sieyés' account and that of HLA Hart in The Concept of Law (Clarendon, Oxford 1961) where the latter demonstrates the social role of law by showing how a community moves from a pre-legal to a legal system. Earlier statements of similar ideas are found in numerous earlier writings: See Q Skinner, Visions of Politics: Renassance Virtues (CUP, Cambridge 2002) vol. II, ch 9.
28. Sonenscher (n 22) 134-135.
29. Ibid 34 and 134-135.
30. See further Nickel (n 17) 148-149.
31. The relationship - between the people and their representatives is a complex feature of Sieyes' account; for further explication, see his Qu'-est ce que le tiers état? and M Sonenscher's Introduction in Sicyés (n 22). The analysis in L Jaume, 'Constituent Power in France: The Revolution and its Consequences' in Loughlin and Walker (hereinafter Jaume) helps considerably in understanding Sieyès' account.
32. This aspect is discussed with insight in Preuss (n 17).
33. E Durkheim, The Division of Labour in Society (Free Press, NY 1984) 25.
34. Note the similarities between Sieyès' approach and H.L.A. Hart's concept of a mature legal system: See Hart (n 22).
35. R Ellickson's study of the ranchers of Shasta County California shows how effective informal orders can be; it also contains a useful discussion of the issues raised here; R Ellickson, Order Without Law (Harvard University Press, Cambridge, MA 1991).
36. For a critique of functionalist theories of law, see Galligan (n 8). chs 7 and 8.
37. Ibid 217-220.
38. M Weber, in G Roth and C Wittick (eds) Economy and Society, (English edn, California University Press, Berkeley 1968).
39. Habermas attemps to show that the recognition of rights is somehow definitional of a constitutional order; see the illuminating analysis of the these claims in Nickel (n 17).
40. Sonenscher (n 22) 135.
41. See Jaume (n 26).
42. Well-described in Jaume (n 26) 68.
43. A point to which I return in the final section.
44. Much of Damian Chalmers' essay, if I understand it, is compatible with, indeed is a stimulating elaboration ot the main elements of Sieyés' account; its force, however, is blunted by undue obscurity of expression; see D Chalmers, 'Constituent Power and the Pluralist Ethic' in Laughlin and Walker (hereinafter Chalmers).
45. M Loughlin, 'Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice' in Loughlin and Walker (hereinafter Laughlin).
46. Several of the pamphlets and extracts from the Putney Debates are reproduced in A Sharp (ed), The English Levellers (CUP, Cambridge 1998) A full transcript Debates is available at http://www.courses.essex.ac.uk/cs/cs101/putney.htm
47. His claim that the Levellers' proposed constitution, The Agreement of the People of October 1647, was the first attempt at a written constitution is surprising; the Republic of Siena had one in the 14th century, as did numerous neighbours shortly thereafter.
48. The literature is voluminous; on the influence of republican ideas on the Levellers, see SD Glover, The Putney Debates: Popular Versus Elitist Republicanism' (1999) 164 Past Present 47-80.
49. For an historical account of the notion of popular sovereignty, see skinner (n 22), especially vol II, chs 2 and 9.
50. George Buchanan's De Iure Regni apud Scotos (Edinburgh, 1559) stands out as an early descriptive account of constitutional orders which is remarkably similar to that of Sieyès 200 years later and which places the people at their centre.
51. The arguments and contentions of the Levellers are much less clear and consistent than Loughlin suggests; for example, The Agreement of the People of October 1647 and The Humble Petition of John Lilburne 11th September, 1648 differ in their claims concerning the relationship between Parliament and the people: In the first, the people are sovereign; in the second, parliamentary sovereignty is affirmed; see further Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Clarendon, Oxford 1999) 135ff. On one reading, the Levellers challenged the very basis of the English constitution by claiming full sovereignty of the people; on another, they accepted the notion, dominant at the time and continuing even now that the people consent through elections to the sovereignty of Parliament. Consent a condition of the legitimacy of parliamentary sovereignty. The second reading is my view the more accurate.
52. Quoted in Goldsworthy (n 43) 97.
53. Other essays adopting a similar normative approach to constituent power are: Mollers (n 17)
54. Jaume (n 26)
55. and N Walker 'Post-Constituent Constitutionalism? The Case of the European Union' in Loughlin and Walker (hereinafter Walker).
56. The Levellers did not express their claims in terms of democracy, which had a quite different meaning at the time; see Sharp, 'Introduction: The English Levellers, 1645-1649' in Sharp (n 40).
57. This is a theme running through Wdker (n 43).
58. Compare Chalmers' claim that the concept of constituent power is fundamental to constitutional; analysis: See Chalmers (n 38) 293-303.
59. J Tully's essay, if I understand its point, is aimed at identifying various senses of constituent power, some of which pertain to the people, others have a different focus; they include not just political power but also economic power and the power of self-protection; see Tully (n 11) 320-328. How these last two relate to constitutionalism remains obscure for me.
60. Essays by Jaume on the French experience of constituent power and by Mollers on the German contain useful descriptive elements.
61. ES Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (Norton and Co, New York/London 1989) 45.
62. Jaume (n 26) 67. C Mollers offers a partly descriptive account of the place of the people in German constitutionalism. He shows how their constituent power passed from the princes to the people: Mollers (n 17) 91; he also shows that the idea of a democratic constituent power was not historically at the centre of German constitutional discourse, nor has it been since the Second World War.
63. P Carrozza, 'Constitutionalism's Post-Modern Opening' in Loughlin and Walker (hereafter Carrozza), 179-180.
64. G. Leonard, The Invention of Party Politics (California University Press, California 2002) 15.
65. For futher analysis along these lines, see LD Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (OUP, New York/Oxford 2004).
66. S Griffin, 'Constituent Power and Constitutional Change in American Constitutionalism', in Loughlin and Walker (hereinafter Griffin).
67. Walker (n 43) 261ff.
68. Ibid 263.
69. Griffin (n 55) 50.
70. Ibid 49.
71. Ibid 63.
72. Ibid 66.
73. Dyzenhaus (n 4) 129.
74. Mollers (n 17) 88.
75. Sonenscher (n 22) 134.
76. Preuss (n 17) 218.
77. H Lindahl, 'Constituent Power and Reflexive identity: Towards an Ontology of Collective Action', in Loughlin and Walker (hereinafter Lindahl).
78. Ibid 19.
79. Ibid 20.
80. It is hard to see, on Lindahl's account, according to which the people have no collective identivy outside a constitution, how a constitution could be created in the first place.
81. Weber (n 32), vol I, ch 3.
82. For insight into this debate, see S Roberts, 'After Government: On Representing Law Without the State' (2005) 68 MLR 1-24.
83. See R Ellickson, Order Without Law (University of Chicago Press, Chicago 1991).
84. G Buchanan, De Iure Regni apud Scotos (Edinburgh, 1579) 113; quoted in Skinner (n 22), vol II, 249.
85. C Rossiter (ed) The Federalist Papers: J Madison Modern Library, New York 1938) cited in Nickel (n 17) 150.
86. For an excellent accou-nt of this idea: M Canovan, The People (Polity Press, Cambridge 2005) ch 2. [ Resistance theory more generally is discussed in Q Skinner, The Foundations of Modern Political Thought (CUP, Cambridige 1978) vol II and GS Wood, The Creation of the American Republic 1776-1787 (University of North Carolina Press, Chapel Hill 1969) ch IX.
87. Dyzenhaus (n 4) 145.
88. Ibid 140.
89. Ibid 141.
90. What powers the people ought to be given in the Constitution raises different questions from that under consideration in the text. The Constitution of 1776 of Pennsylvania, as an example, provided that all bills passed by the Assembly had to be submitted to the people; see Wood (n 75) 366. The power was widely condemned and attracted the critical attention of James Madison: The Federalist, No. XLVII, 1 February 1788.
91. Dyzenhaus makes the argument well: According to liberal constitutionalism, constitutions provide the basis on which government is to be conducted and the place of democracy within it; it has no place for a parallel domain of un-constitutionalized political action; see Dyzenhaus (n 4) 129-134, 143-145.
92. N Machiavelli, in B Crick (ed), Discourses (Penguin, London 1970) 114.
93. The literature is extensive; see for instance, EP Thompson, 'The Moral Economy of the English Crowd in the Eighteenth Century' (1971) 50 Past Present 79-94;
94. R Benewick, Political Violence and Public Order (Allen Lane, London 1967) and DG Barnum, 'The Constitutional Status of Public Protest Activity in Britain and the United States' [1977] Public Law 310-344.
95. These issues are examined in DJ Galligan, The Right to Protest (Inaugural Lecture, 21 May 1987, University of Southampton).
96. LD Kramer provides examples and a useful analysis of direct, extra-constitutional political action in Kramer (n 54), ch 1.
97. JP McCormick, 'People and Elites in Republican Constitutions, Traditional and Modern' in Loughlin and Walker.
98. Ibid 107.
99. Ibid 107.
100. Manin (n 2) 92.
101. Ibid 94.
102. Rainer Nickel's essay is a fine analysis of Habermas' attempts to reconcile the two: See Nickel (n 17).
103. I have discussed these issues more fully in: DJ Galligan, Due Process and Fair Procedures (OUP. Oxford 1996).