Hostname: page-component-cd9895bd7-mkpzs Total loading time: 0 Render date: 2024-12-26T04:57:08.858Z Has data issue: false hasContentIssue false
  • English
  • Français

The Left and the Question of Law

Published online by Cambridge University Press:  20 July 2015

David Dyzenhaus
Get access

Extract

This article examines the work of Martin Loughlin, a prominent public lawyer who works in the leftwing tradition of political and legal theory, often associated with the London School of Economics and Political Science. It argues that tensions in Loughlin’s work exemplify certain trends within the left, the result of the left having lost faith in its positive political programme, one which was supposed to be delivered by Parliament. What remains once this faith is lost is a traditional hostility to liberalism and judicial review in combination with a sense that the realm of politics-the political-is valuable. This combination explains the turn taken by certain leftwing theorists to Carl Schmitt’s authoritarian understanding of politics and to a kind of romanticism about tradition. Given the risks inherent in this turn, would be better for the left both to return to its roots in a positive programme. This move would require the left to engage properly in the contemporary debate about the normativity of law.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 17 , Issue 1 , January 2004 , pp. 7 - 30
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2004

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

For comments on a draft of this paper, I thank Gavin Anderson, Neil Duxbury, Colin Harvey, Mike Taggart, Amanda Perreau-Saussine, and most of all, Martin Loughlin, who responded to the draft with his usual good humour.

1. Loughlin, Martin, “The Pathways of Public Law Scholarship” in Wilson, Geoffrey, ed., Frontiers of’Legal Scholarship (London: Chancery, 1995) 163 Google Scholar at 185 [hereinafter “Pathways”].

2. Indeed, Harlow, Carol & Rawlings, Rick’s textbook of administrative law presents the richest analysis of cases I know; Law and Administration (London: Butterworths, 1997).Google Scholar

3. For example, Harden, Ian & Lewis, Norman, The Noble Lie: The British Constitution and the Rule of Law (London: Hutchinson, 1986).Google Scholar

4. Loughlin, Martin, Public Law and Political Theory (Oxford: Clarendon Press, 1992) at 58–59 Google Scholar [hereinafter Public Law].

5. Ibid. at 240.

6. Ibid. at 245.

7. Ibid. at 250-57.

8. I think one could make the case that this second path is the one taken by many leftwing theorists in the United Kingdom today, and perhaps in the United States of America as well. For example, many of the distinguished group of scholars associated with the New Left Review, most notably Perry Anderson, are firmly on this second path. The fascination with Carl Schmitt and or Leo Strauss is often the best indication of membership of this camp—see for example, Balakrishnan, Gopal, The Enemy: An Intellectual Portrait of Carl Schmitt (London: Verso, 2000)Google Scholar. What distinguishes this camp from another—the camp of those who have simply packed their bags and gone over to the right—is mainly that the former retain some vague residues of what I call below the positive element of style, including basic political commitments. An example of a group which seems to have gone over to the right is the political and social theorists associated with the journal Telos.

9. Leo Strauss, “Comments on Carl Schmitt’s The Concept of the Political “ reproduced in Schmitt, Carl, The Concept of the Political, trans. Schwab, George (New Brunswick , NJ: Rutgers University Press, 1976).Google Scholar

10. Loughlin, , “Pathways”, supra note 1 at 187–88.Google Scholar

11. See Loughlin, Martin, “Rights, Democracy, and Law” in Campbell, Tom, Ewing, Keith & Tomkins, Adam, eds., Sceptical Essays on Human Rights (Oxford: Oxford University Press, 1992) 42 Google Scholar [hereinafter “Rights”]. Note that the United Kingdom has established a Joint Committee on Human Rights to enhance parliamentary compliance with human rights obligations.

12. Loughlin, , “Pathways”, supra note 1 at 185.Google Scholar

13. Tomkins, Adam, “In Defence of the Political Constitution” (2002) Oxford J. Legal Stud. Google Scholar 157 at 165, reviewing Loughlin, , Sword and Scales: An Examination of the Relationship between Law and Politics (Oxford: Hart Publishing, 2000)Google Scholar [hereinafter Sword and Scales].

14. (London: Ernest Benn Limited, 1929).

15. Harvard Studies in Administrative Law, vol. iv (Cambridge, MA: Harvard University Press, 1933).

16. Ibid at 10.

17. Loughlin, , “Pathways”, supra note 1 at 172–74.Google Scholar

18. Griffith, J.A.G., “The Political Constitution” (1979) 42 Google Scholar Mod. L. Rev.1.

19. Loughlin, , Public Law, supra note 4 at 23.Google Scholar

20. Ibid. at 156-57.

21. Ibid. at 235.

22. Ibid. at 214.

23. See ibid. at ch. 9 entitled “The Triumph of Liberal Normativism?”

24. Loughlin, , Sword and Scales, supra note 13 at 213.Google Scholar

25. See, e.g., Loughlin, Martin, “Constitutional Law: The Third Order of the Political” in Bamforth, Nicholas & Leyland, Peter, eds., Law in a Multi-Layered Constitution (Oxford: Hart Publishing, 2003 Google Scholar, forthcoming) [hereinafter “The Third Order”].

26. Loughlin, , Sword and Scales, supra note 13 at 224–25.Google Scholar

27. See the Introduction to Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1978).Google ScholarPubMed

28. See further Loughlin, , Sword and Scales, supra note 13 at 19–22.Google Scholar There is little that Dworkin or I would disagree with the account in these pages except for the fact that for Loughlin the test for “rightness” of a theory is “primarily a matter of fit” (ibid at 21), which makes his account seem oddly positivist in the sociological sense, something which resonates with his very utilitarian understanding of the philosophy of pragmatism expressed in the same pages. What he understates, even neglects in these pages, is the role of what Dworkin has called the dimension of soundness or justification in our attempts to understand practice. See, e.g., Dworkin, Ronald, Law’s Empire (London: Fontana, 1986)Google Scholar. I suspect that Loughlin’s failure ever to confront the issue of the normativity of law head on, despite his criticisms of others for the same failing, has to do with the fact that, as Dworkin has argued against legal positivists, such confrontation is not fruitful (perhaps even not possible) from an external, sociological stance. The confrontation makes one into a full participant in normative argument.

29. Loughlin, , “Pathways”, supra note 1 at 185.Google Scholar

30. Ibid.

31. Ibid. at 163-64.

32. To the extent that Loughlin endorses any one view of law and its social function, he seems drawn to Niklas Luhmann’s theory of law as an autopoietic system, a highly abstract account of law as a kind of self-referential network, which has its own logic that resists complete instrumentalization. I myself doubt that Luhmann’s theory amounts to much more than a variant of the Kelsenian tradition in legal positivism and one which is far less attentive to the forms of law than Kelsen. If anything, it seems a far better target than Kelsen himself for Schmitt’s jibe against Kelsen’s theory of law that it represented the height of liberal dream of a machine that would “run itself” with a minimum of human—which is to say, political—intervention. (“And now the machine runs itself” [“Die Machine läuft jetzt sich von selbst”]; Schmitt, , Politische Theologie: Vier Kapitel zur Lehre von der Souveräranität, 5th ed. (Berlin: Duncker & Humblot, 1990) at 62.Google Scholar) But what is curious, at least at first sight, is the combination of this highly mechanistic understanding of the distinctive social function of law with a Schmittian account of the political.

33. Loughlin, , “The Third Order”, supra Google Scholar note 25.

34. Ibid.

35. Loughlin never says explicitly in “The Third Order” that he accepts Schmitt’s views on the nature of the political, but I find it very difficult to understand his report of Schmitt’s position as neutral exposition given that the point of the essay is to alert its readers to a distinction which Loughlin says is “essential”, an “achievement”, a “powerful insight” which has to be understood before the other orders of politics can properly be comprehended. Schmitt himself presented his arguments as if they were neutral, almost sociological expositions and the diagnostic turn in much of postmodern thought adopts the same guise of neutrality, while debunking others for trying to pass off their partisan normative commitments as neutral, objective or universal.

As I will make clear in the text below, I do not think for a moment that Loughlin would embrace Schmitt’s fascistic claim that the substantive homogeneity of the people is the goal to which a state should strive. But if it is not to be banal, the distinction between friend and enemy is premised on that normative end, despite Schmitt’s and his apologists’ attempts to disguise or evade this connection. (As Hermann Heller—a distinguished social democrat and one of Weimar’s leading legal theorists—said in 1928: “one must contest Carl Schmitt’s view that the friend-enemy distinction is specifically political, a distinction to which all political acts and motives can be reduced. Besides the fact that it is epistemologically inadmissible to arrange this distinction into the value categories good and bad, beautiful and ugly, useful and harmful, Schmitt’s friend-enemy distinction is circular. For, without the adjective ‘political’, the adjective indicates nothing essentially political. ‘My friends are your friends, and your enemies should be my enemies’, can apply just as well to the political friend as to any other friend who shares convictions, childhood friend, business friend, and bosom friends.” See Heller, , “Political Democracy and Social Homogeneity” in Jacobson, Arthur J. & Schlink, Bernhard, eds., Weimar: A Jurisprudence of Crisis (Berkeley: University of California Press, 2002) 256 Google Scholar at 258) There is thus a rather heavy onus on those who would use Schmitt’s ideas to make it clear just how they are using them, especially if they share Schmitt’s antipathy towards liberalism.

It is interesting that Tomkins, , in “In Defence of the Political Constitution”, supra Google Scholar note 13, a review of Sword and Scales, supra note 13 (a book which mentions Schmitt only in passing), takes Loughlin’s understanding of politics to be virtually identical with that attributed by Loughlin to Schmitt in “The Third Order”, supra note 25. Tomkins’s reference point in this review is Hannah Arendt rather than Schmitt, but he opts for the reading of Arendt’s understanding of politics which escapes banality at the cost of collapsing into something very close to Schmitt. Thus Tomkins relegates most of humankind to sub-human status by asserting that politics should be “celebrated”: “For politics is what makes us free. Indeed, politics is what makes us human” at 172.

36. Loughlin, , “The Third Order”, supra Google Scholar note 25.

37. “The obscurity, the muddle, the excess, the compromise, the indelible appearance of dishonesty, the counterfeit piety, the moralism and the immorality, the corruption, the intrigue, the negligence, the meddlesomeness, the vanity, the self-deception and finally the futility … offend most of our rational and all of our artistic susceptibilities.”; Oakeshott, Michael, The Politics of Faith and the Politics of Scepticism, Fuller, Timothy, ed., (New Haven , CT: Yale University Press, 1996) 19 Google Scholar, quoted in “The Third Order”, supra note 25.

38. Ibid.

39. Ibid.

40. Ibid.

41. Schmitt, supra note 32 at 5.

42. Cf. Roberto Mangabeira Unger, “When we came, they were like a priesthood that had lost their faith and kept their jobs. They stood in tedious embarrassment before cold altars. But we turned away from those altars, and found the mind’s opportunity in the heart’s revenge”; “The Critical Legal Studies Movement” (1983) 96 Rev., Harv. L. 561 at 675.Google Scholar

43. Schmitt, Carl, The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol, trans. Schwab, George & Hilfstein, Erna (Westport, CT: Greenwood Press, 1996)Google Scholar.

44. Loughlin, , “The Third Order”, supra Google Scholar note 25.

45. Ibid.

46. See Stapleton, Julia, “Dicey and His Legacy” (1995) 16 Google Scholar Hist. Pol. Thought 234 which includes a fascinating discussion of the way in which Michael Oakeshott’s political theory takes up Diceyan themes of character and the political constitution. Although Stapleton does not deal with the debates sketched here, she provides an excellent basis for understanding how Oakeshott’s romantic understanding of the political constitution—one that must not be expressed in legal terms because its essence is ineffable—is so influential on the left in England, despite Oakeshott’s own rightwing individualistic stance.

47. Loughlin, , “The Third Order”, supra Google Scholar note 25.

48. See supra note 9.

49. See e.g., Loughlin, , Sword and Scales, supra note 13 at 213–14 Google Scholar.

50. [1917] AC 260.

51. [1942] AC 206.

52. [1977] 1 WLR 766.

53. [1985] AC 374.

54. [2002] 1 All ER 122.

55. [2002] 2 WLR 564.

56. See Loughlin, , Public Law, supra note 4 at 163 Google Scholar, for the following quotation from 287 of Halliday, supra note 50: The increasing crush of legislative efforts and the convenience to the Executive of a refuge to the device of Orders in Council would increase th[e] danger of [transition to arbitrary government] tenfold were the judiciary to approach any such action by the Government in a spirit of compliance rather than of independent scrutiny. That way also would lie public unrest and public peril.

57. See Laski, Harold, “Civil Liberties in Great Britain in Wartime” (1942) 2 Bill of Rts. Rev. 243 Google Scholar. A striking example of the same phenomenon that we see in Loughlin can be found in the recent work of Adam Tomkins, author of the laudatory review of one of Loughlin’s books quoted in the Introduction, although, as noted supra note 35, Tomkins takes his inspiration from Hannah Arendt rather than Schmitt. In “Legislating against terror: the Anti-terrorism, Crime and Security Act 2001” (2002) Pub. L. 205, Tomkins provides an incisive and devastating critique of the illiberal face of the Blair government. Yet in “Defining and Delimiting National Security” (2002) 118 Rev., L.Q. Google Scholar 200 he suggests that Lord Hoffmann’s judgment in Rehman, supra note 54 at 200-03, is fine despite the fact that its effect is that there is “no review at all” because not only will the judges not review, but Parliamentary scrutiny is “meager”. Indeed, he comes to this conclusion despite his claim that the decision by the House of Lords imposed further constraints on the body Parliament had set up to supervise deportation decisions on national security grounds, that is, constraints beyond any imposed by statute.

58. Loughlin, Martin, “Rights Discourse and Public Law Thought in the United Kingdom” in Anderson, Gavin, ed., Rights and Democracy: Essays in UK-Canadian Constitutionalism (London: Blackstone Press, 1999) 193 Google Scholar at 198 [hereinafter “Rights Discourse”].

59. Ibid at 213. See also Loughlin, “Rights”, supra note 11.

60. For discussion of this ambivalence in Schmitt, see Dyzenhaus, David Legality and Legitimacy: Schmitt, Carl, Kelsen, Hans and Heller, Hermann in Weimar (Oxford: Clarendon Press, 1997)Google Scholar at ch. 2.

61. As a matter of philosophical preference, Loughlin adopts Oakeshott’s version of conservatism— see Public Law, supra note 4 at 64-83. But it might be that a combination of such a philosophy with communitarianism results in something very close to Lord Devlin’s position.

62. Devlin, Patrick, The Enforcement of Morals (Oxford: Oxford University Press, 1981).Google Scholar

63. (Oxford: Oxford University Press, 2000).

64. Loughlin, , “Pathways”, supra note 1 at 174 Google Scholar.

65. See Loughlin, “Rights Discourse”, supra note 57 at 213.

66. I doubt that it is open to Loughlin to respond to this point by saying that he is engaged not in normative argument but in the kind of positivist sociological enterprise which deliberately does not move on to normative terrain, though, as I pointed out above in note 28, he does sometimes seem quite positivistic in this sense. The major reference points for his critiques of liberalism, Machiavelli, Oakeshott and Schmitt are not sociologists, though, as I suggested in that same note, Schmitt sometimes presents his tendentious accounts of legal and political “reality” in the tones of the dispassionate observer of social and political practices.

67. Loughlin, , Public Law, supra note 4 at 80 Google Scholar.

68. See, e.g., Loughlin, Martin, “Representation and Constitutional Theory” in Craig, Paul & Rawlings, Richard, eds., Law and Administration in Europe—Essays in Honour of Carol Harlow (Oxford: Oxford University Press, 2003 forthcoming)Google Scholar. Here Loughlin seems to assume that all that is interesting in Hobbes’s account of constitutional theory is the politics of representation so that Hobbes’s account of legality and law can be ignored. (In this he follows the distinguished Hobbes scholar, Quentin Skinner, for whom the parts of Leviathan which deal with legality and law seem of little interest.) I have argued that Hobbes is actually quite close to Fuller: see Dyzenhaus, David, “Hobbes and the Legitimacy of Law” (2001) 20 L. & Phil. Google Scholar 461.

69. Thompson, Edward Palmer, William Morris: Romantic to Revolutionary (London: Merlin Press, 1977)Google Scholar.

70. Loughlin, , “Rights”, supra note 11 at 58 Google Scholar.