25 OXJLST 183FOR EDUCATIONAL USE ONLYPage 125 Oxford J. Legal Stud. 183
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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
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