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Loughlin - Constitutional Theory

Loughlin - Constitutional Theory

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25 OXJLST 183FOR EDUCATIONAL USE ONLYPage 125 Oxford J. Legal Stud. 183
(Cite as: 25 Oxford J. Legal Stud. 183)
Oxford Journal of Legal StudiesSummer, 2005Article*183 CONSTITUTIONAL THEORY: A 25TH ANNIVERSARY ESSAYMartin Loughlin[FNd1]1. IntroductionConstitutional theory has recently been undergoing a remarkable revival.For most of the 20th century the subject had been in decline, as the attentionof scholars turned away from the constitutional forms and towards the socialand economic tasks of government and after 1989, once liberal democracyhad apparently been accepted as the only legitimate constitutional framework,it appeared to be on its last legs. The entire modern project of devisingimaginative schemes for conceiving the ways in which people form a politicalunity organized through a governing framework was reaching its terminus. Allthat remained was a set of technical questions driven by the need to ensureeffective co-ordination between the established rule-making, rule-executingand rule-interpreting agencies of the state.In such circumstances, the aim of this article cannot be simply to offer asketch of the main themes in constitutional theory during the last 25 years of publication of the Journal; it must also proffer an explanation for the subject'srecent revival. My argument will be that the turning point for constitutionaltheory comes only during the 1990s, and is driven by evident limitations in thesolutions posited by the application of liberal political philosophy toconstitutional questions. Many of the difficulties flow from tensions inherentwithin liberal thought, such as between freedom and belonging and betweeneconomic and political conceptions of liberalism. Others are more deep-seatedand go to the fundamentals of liberal convictions about the nature of thestate. But before turning to these questions, the subject of the inquiry must bespecified. What are constitutions? What does it mean to theorize aboutconstitutions?*184 2. What Constitution?It is generally accepted today that a constitution is a formal framework of fundamental law that establishes and regulates the activity of governing astate. This is an essentially modern understanding, a product of Enlightenmentthought. It was most clearly expressed by Thomas Paine, who argued that aconstitution must have a 'real' and not simply an 'ideal' existence, and that
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
 
25 OXJLST 183FOR EDUCATIONAL USE ONLYPage 225 Oxford J. Legal Stud. 183
(Cite as: 25 Oxford J. Legal Stud. 183)
'whenever it cannot be produced in visible form, there is none'. His basic pointwas that a constitution 'is a thing antecedent to a government, and agovernment is only the creature of a constitution'.[FN1]Paine was herearticulating the convictions of late 18th century constitution-makers who hadtaken the innovative step of arguing that societies are capable of 'establishinggood government from reflection and choice' rather than being 'foreverdestined to depend for their political constitutions on accident and force'.[FN2]Since many today would regard Paine's argument as being self-evidentlycorrect, the radical nature of his claim might be highlighted. Compare Paine'sviews to those of the French counter-revolutionary thinker, Joseph de Maistre.Referring to the above passage from Paine's 'evil book on the rights of man',Maistre suggested that 'it would be difficult to get more errors into fewerlines'.[FN3]He maintained that the belief that 'a constitution can be made asa watchmaker makes a watch' was one of the greatest errors of theEnlightenment, not least because 'the constitution of a nation is never theproduct of deliberation'.[FN4]Maistre believed that so-called constitutionalreform never establishes anything new but only declares existing rights, andhence that a country's constitution cannot be known from its written laws'because these laws are made at different periods only to lay down forgottenor contested rights, and because there is always a host of things which are notwritten'.[FN5] The contrast between Paine and Maistre reveals two senses of the termconstitution. A constitution can be viewed not only as a text, but also as anexpression of a political way of being. And in this latter sense, constitutionscan no more be made than language is made, since constitutions evolve fromthe way of life of certain groups that come to conceive of themselves as 'apeople' or 'nation'. Although Maistre's political views were controversial,especially since he tied his constitutional thought to the belief in divine powerand an objective sense of the good, it is not essential to embrace thattheology to feel the force of his argument. Hegel, after all, expressed a similarconviction when claiming that 'what is ... called "making" a constitution is ... athing that has never happened in *185 history' since a constitution 'onlydevelops from the national spirit'.[FN6]My argument will be not only thatboth conceptions must be kept in mind, but that the central questions of constitutional theory are generated from the tension between them.I will later examine the ways in which this tension is played out. At thisstage, it need only be noted that the two conceptions reflect contrastingidioms of modern political thought, which become condensed into the forms of 
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
 
25 OXJLST 183FOR EDUCATIONAL USE ONLYPage 325 Oxford J. Legal Stud. 183
(Cite as: 25 Oxford J. Legal Stud. 183)
moral universalism and historical particularism. These distinct ways of ordering knowledge draw on the metaphors of mechanism (checks andbalances) and evolutionism (the 'living' constitution) respectively, and also onthe imagery of closed and open systems, to produce what might be called'moral Newtonian' and 'political Darwinian' styles of constitutional reasoning.[FN7]The differences can be sketched by drawing a series of linkedantinomies: reason versus tradition, form versus substance, mechanismversus organism, and individual autonomy versus collective identity.Rationalism, formalism and individualism are linked, and constitutionaltheories in this mode tend to deploy an analytical method to describe theconstitution of the state through the use of mechanical metaphor. And thosewho take a cultural, experiential and holistic approach use a historical methodand organic metaphors to elaborate the idea of a constitution as the collectiveidentity of a people. One aim of constitutional theory should be to highlight theways in which such figurative language shapes the way we think aboutconstitutions.3. Which Theory?Given the tensions between these two conceptions of constitution, andespecially given the way they are underwritten in language forms, it seemsunlikely that constitutional theory can be limited to the search for clarity in theuse of constitutional concepts,[FN8]or to an attempt to explain constitutionalarrangements through scientific analysis.[FN9]Although these approachesoffer insight into the nature and function of constitutional arrangements,language intended to clarify is capable of having the opposite effect. And weshould note that these approaches focus on constituted power, and this is onlyone aspect of constitutional discourse. But neither can the questions of constitutional theory be gathered up within the normative schemes of contemporary political philosophy. Such schemes generally inquire into theideal character of political phenomena and although they may explicateconcepts of central importance to constitutional discourse, their ideal aspectrenders them of limited utility to constitutional*186 theory.[FN10]Constitutional theory does not involve an inquiry into ideal forms, sinceotherwise it would be completely absorbed into political philosophy. If constitutional theory is to form a distinct inquiry, it must aim to identify thecharacter of actually existing constitutional arrangements.Since the distinction between governors and governed lies at the core of these arrangements, constitutional theory should be able to offer an accountof the nature of this relationship. But the activity of governing must beexamined as we find it: ubiquitous, ambiguous, contentious, and shot through
© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

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