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A Note From the Editors: The State of the Political Constitution

Published online by Cambridge University Press:  06 March 2019

Marco Goldoni  and
Christopher McCorkindale

Extract

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The revival of the political constitution has come about in parallel with two developments, one in constitutional practice and the other in political theory. With regard to the former, the political constitution has been seen as something of a bulwark against the rise of legal (or judicial, or common law) constitutionalism. The seeming hegemony of this latter model of constitutionalism among contemporary lawyers and political scientists has produced from (so-called) political constitutionalists a reaction against the delegation of important decisions to non-political institutions and an obsessively court-centered scholarship. Perceiving this shift in focus from political to legal institutions to be the very antithesis of the traditional Commonwealth (more particularly, of the United Kingdom's parliamentary) model of constitutionalism, and, more broadly, to be an affront to democratic sensibilities, the notion of the political constitution was retrieved and defended in a seminal article in the 1979 edition of the Modern Law Review, written (though first delivered in his Chorley Lecture the previous year) by the late John Griffith. More recently, in the work of Adam Tomkins, Richard Bellamy, and Grégoire Webber and Graham Gee, a normative interpretation has been lent to Griffith's thesis so as to provide a full-fledged constitutional theory capable of standing as an alternative to the liberal-legal paradigm—a turn, one might say, from the political constitution to political constitutionalism.

Type
Reflections
Information
German Law Journal , Volume 14 , Issue 12: Special Issue—Political Constitutions , 01 December 2013 , pp. 2103 - 2109
Copyright
Copyright © 2013 by German Law Journal GbR

Footnotes

*

Lecturer in Law, University of Glasgow, [email protected].

**

Lecturer in Law, University of Strathclyde, [email protected].

We would like to thank Mark Leiser (University of Strathclyde) for his help with the preparation of these scripts, as well as the staff at the German Law Journal who have been so helpful throughout. We would also like to thank the authors for their contributions to the collection and participation in a preparatory reading group and workshop, as well as Richard Bellamy, Danny Nicol, Aileen McHarg, Alexander Somek, Mike Wilkinson, Cormac Mac Amhlaigh, Jeff King, Alison Young, Tony Lang, Tom Campbell, Colin Harvey, Richard Collins, Stephanie Switzer, and others whose contributions across the project have helped enormously. Finally, we would like to thank the Centre for Law and Cosmopolitan Values (University of Antwerp), the Institute for Society and Social Justice Research (Glasgow Caledonian University) and the Centre for Global Constitutionalism (University of St Andrews) whose funding made this collection and its supporting events possible.

References

1 See Dworkin, Ronald, A Bill of Rights for Britain: Why British Liberty Needs Protection (1990), for the context of Great Britain.Google Scholar

2 The latter being aggravated by the spread of US constitutionalism with its typical court-centered approach to constitutional law and its consequential focus on the counter-majoritarian issue. See, e.g., John Ely, Democracy and Distrust: A Theory of Judicial Review (1980).Google Scholar

3 Griffith, John, The Political Constitution, 42 Mod. L. Rev. 1 (1979). The growing number of articles on Griffith's constitutional thought are indicative of the interest in the model of the political constitution. In addition to the many cited throughout this edition, see Thomas Poole, Tilting at Windmills? Truth and Illusion in The Political Constitution, 70 Mod. L. Rev. 250 (2007); Graham Gee, The Political Constitutionalism of J.A.G. Griffith, 28 Legal Stud. 40 (2008).Google Scholar

4 Tomkins, Adam, Our Republican Constitution (2005); Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (2007).Google Scholar

5 See Pettit, Philip, Republicanism: A Theory of Freedom and Government (1997); Quentin Skinner, Liberty Before Liberalism (1998). See also Maurizio Viroli, Republicanism (2002); Republicanism and Political Theory (Cécile Laborde & John Maynor eds., 2008); Legal Republicanism: National and International Perspectives (Samantha Besson & José Luis Martì eds., 2009).Google Scholar

6 See, e.g., Pettit, supra note 5 (seeing enshrined rights protected by an active judiciary as integral to his republican model).Google Scholar

7 To be accurate, the relevant reflection on politics comes from more traditional versions of republicanism. C.f. Hannah Arendt, the Human Condition (1958); Bernard Crick, In Defence of Politics (1962).Google Scholar

8 The political philosophy of Jeremy Waldron, for example, is liberal, but his constitutional theory is closer to political constitutionalism. See Jeremy Waldron, Law and Disagreement (1999); Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L. J. 1346 (2006).Google Scholar

9 Here Arendt's constitutionalism resonates. See Hannah Arendt, On Revolution (1963).Google Scholar

10 For a more detailed treatment of this theme, which engages also the counter view—what legal constitutionalists see as the limits of judicial review—see generally The Role of the Courts in Constitutional Law, 60 U. Toronto L.J. (Special Issue) (David Dyzenhaus & Adam Tomkins eds., 2010).Google Scholar

11 See also, Gardbaum, Stephen, The New Commonwealth Model of Constitutionalism: Theory and Practice (2013).Google Scholar

12 Here, the main accusation against the Strasbourg court was jurisdictional: The Court was acting ultra vires. See also Danny Nicol, Legitimacy of the Commons Debate on Prisoner Voting, 2011 Pub. L. 681.Google Scholar

13 Griffith, supra note 3, at 16.Google Scholar

14 C.f. Tomkins, Adam, The Role of the Courts in the Political Constitution, 60 U. Toronto L.J. (Special Issue) 1 (David Dyzenhaus & Adam Tomkins eds., 2010).CrossRefGoogle Scholar

15 See Griffith, J.A.G., Why We Need a Revolution, 40 Pol. Q. 383 (1969).CrossRefGoogle Scholar

16 Of which moves towards technocratic government in Greece and Italy are but the most stark examples.Google Scholar

17 Graham Gee & Grégoire C. N. Webber, What Is a Political Constitution?, 30 O.J.L.S. 273 (2010).CrossRefGoogle Scholar

18 Graham Gee & Grégoire C. N. Webber, Rationalism in Public Law, 76 Mod. L. Rev. 708 (2013).Google Scholar

19 See Hirschl, Ran, From Comparative Constitutional Law to Comparative Constitutional Studies, 11 Int'l J. Const. L. 1 (2013) (lamenting the state of comparative law).Google Scholar

20 Many titles already track and even challenge this trajectory. See The Twilight of Constitutionalism? (Petra Dobner & Martin Loughlin eds., 2010); Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (2012); Danny Nicol, The Constitutional Protection of Capitalism (2010).Google Scholar

21 See, e.g., Mike Wilkinson, Political Constitutionalism and the European Union, 76 Mod. L. Rev. 191 (2013).Google Scholar

22 As the contributions in Part II of this collection show, the novelty of the Human Rights Act in (successfully?) balancing the meaningful judicial protection of human rights with the primacy of a political institution, Parliament, shows the creative capacity of thinking politically about rights and about constitutions.Google Scholar