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Why We (Still) Need a Revolution

Published online by Cambridge University Press:  06 March 2019

Marco Goldoni  and
Christopher McCorkindale

Abstract

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This paper posits a (very British!) call to arms, and does so in five steps. In part A, we address the need for constitutional fictions by which the many surrender political power to the few, in the name of stability, order and security. In part B, however, we will show that conflict is both a necessary and a core principle of political constitutionalism—that it is the latent possibility of conflict, the (re)awkening of the many where the few abuse that power, that acts as the final check on government. In part C, we trace the steps by which recent re-interpretations of the work of J.A.G. Griffith, with a focus on the work of Tomkins and Bellamy, have reduced politics to its parliamentary form, thereby closing—rather than “enlarging”—the “areas for argument and discussion”—a narrow view of the constitution to which, admittedly, Griffith himself might have subscribed. In part D, we will assess the limits of such a narrow reading of the political and argue that a more dynamic and reflexive approach is needed if we are to remain in—or recover to—rude constitutional health. Finally, in part E, we will use the political and constitutional background to the devolution of legislative and executive power to Scotland in order to demonstrate the power of political conflict, in extraordinary moments, to expose, break down and create new constitutional fictions.

Type
Part I: The Boundaries of the Conception and Practice of Politics within Political Constitutionalism
Information
German Law Journal , Volume 14 , Issue 12: Special Issue—Political Constitutions , 01 December 2013 , pp. 2197 - 2227
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].

References

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4 See Adam Tomkins, Our Republican Constitution 63 (2005). Adam Tomkins illustrates this point with the classic example of clean air:Google Scholar

We all have an interest, rather obviously, in breathing clean air. None of us acting alone can realise that interest. It is only by acting together—by acting politically—that it can be realised. Now, some of us will have private interests that militate against clean air. Some of us will be industrialists whose factories pollute the air. Others of us will be employees working in such factories, whose livelihoods depend on our employment. But even industrialists and their employees have an interest, as citizens, in breathing clean air.

Id.

5 Hannah Arendt, The Human Condition 8 (Univ. of Chicago Press, 2d ed. 1998) (1958). Hannah Arendt captures this brilliantly. “Plurality,” she said, “is the condition of human action because we are all the same, that is, human, in such a way that nobody is every the same as anyone else who ever lived, lives, or will live.” Id.Google Scholar

6 Griffith, supra note 2, at 3; see also Tomkins, supra note 4, at 63 (noting that the “clean air” example is a good one).Google Scholar

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9 Indeed, the brief for both this collection and the workshop held in its preparation was precisely to move beyond the dichotomy of the political/legal constitution and to begin to define and promote the political constitution on its own terms.Google Scholar

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31 It seems to be the case that a section 4 declaration will almost certainly attract some form of remedial action, usually through the ordinary legislative process as opposed to the expedited process provided for in section 10 of the HRA. See Stephen Gardbaum, Reassessing the New Commonwealth Model of Constitutionalism, 8 Int'l J. Const. L. 167 (2010). It is, of course, no part of our argument to suggest that the judiciary ought to be empowered to strike down primary legislation. The point here is no more and no less about the gravitational pull towards the center that occurs even here.CrossRefGoogle Scholar

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The first of these to come into being is one-man rule, and developing from it with the aid of art and through the correction of its defects, comes kingship. This later degenerates into its corrupt but associated form, by which I mean tyranny, and then the abolition of both gives rise to aristocracy. Aristocracy by its very nature degenerates into oligarchy, and when the populace rises in anger to avenge the injustices committed by its rulers, democracy is born; then in due course, out of the license and lawlessness which are generated by this type of regime, mob rule comes into being and completes the cycle.

Id.

34 See Niccolò Machiavelli, Book 1.5, in The Discourses 115 (Bernard Crick ed., Leslie J. Walker trans., 1970). Walker translates this from “chi vuole acquistare o chi vuole mantenere,” that is, those who want to acquire or those who want to keep—which he equates with the typical English distinction of haves and have nots.Google Scholar

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Pettit's claim, and it is one that has dominated republican scholarship over the past fifteen years or so, is that republican freedom as non-domination is essentially a negative liberty, a freedom from domination—including domination by the sovereign monarch, government, legislature or people—with the twist that something more than a purely negative liberty is needed in order to maintain that freedom—that being institutional channels through which citizens might challenge decisions, policies and laws which run counter to their interests. Thus he is able to distinguish his republican variant with the tradition liberal understanding of freedom as non-interference in the following way:

It may just happen that my master is of a kindly and non-interfering disposition. Or it may just happen that I am cunning or fawning enough to be able to get away with doing whatever I like. I suffer domination to the extent that I have a master; I enjoy noninterference to the extent that that master fails to interfere.

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50 For we can be sure that, if the antithesis of the political constitution is a constitution of judges, then those judges are well prepared to act on those same failings and to redefine the constitution on their terms. Indeed, in a Hamlyn Lecture delivered in 1949, Mr. Justice Denning—as he then was—had this to say about the failings of the political constitution:Google Scholar

No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us, what is the remedy? Our procedure for securing our personal freedom is sufficient, but our procedure for preventing the abuse of power is not … [Resolving this predicament] is not a task for Parliament. Our representatives there cannot control the day to day activities of the many who administer the manifold activities of the State: nor can they award damages to any who are injured by those abuses. The courts must do this. Of all the great tasks that lie ahead, this is the greatest. Properly exercised the new powers of the executive lead to the Welfare State; but abused they lead to the totalitarian state. None such must ever be allowed in this country.

Sir Alfred Denning, Freedom Under the Law 126 (1949).

These same suspicions of the executive, and of Parliament's failings, run through the extra-judicial writings and speeches of many judges to this day. See, e.g., Lord Woolf, supra note 13; Lord Woolf, The Rule of Law and a Change in the Constitution (Mar. 3, 2004), available at: http://www.law.cam.ac.uk/faculty-resources/download/lord-woolf-squire-centenary-lecture-the-rule-of-law-and-a-change-in-constitution-transcript/1415/pdf (transcribing his Squire Centenary Lecture). The same tone runs through the judgments delivered by Lord Steyn, Lord Hope, and Baroness Hale in Jackson v. Attorney General, [2006] 1 AC 262 (H.L). (appeal taken from Eng.) (U.K.) and repeated about the Scottish Parliament, by Lord Hope in AXA General Insurance v. Lord Advocate, [2012] 1 A.C. 868 (appeal taken from Scot.) (U.K.).

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The local ATPU organisers were nearly always taken aback by the response. In apparently “demoralised” working-class communities which had suffered from unemployment, poverty and deprivation, and within which the struggle for daily survival was immense, there were mass meetings of between 200 and 500 people, all of whom were bitterly opposed to the poll tax and determined to fight it.

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[W]hile it may be true that, as a device of government, only the two-party system has proved its viability and, at the same time, its capacity to guarantee constitutional liberties, it is no less true that the best it has achieved is a certain control of the rulers by those who are ruled, but that it has by no means enabled the citizen to become a “participator” in public affairs. The most the citizen can hope for it to be “represented,” whereby it is obvious that the only thing that can be represented and delegated is interest, or the welfare of the constituents but neither their actions nor their opinions.

Arendt, supra note 23, at 268.