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(Political) Constitutions and (Political) Constitutionalism

Published online by Cambridge University Press:  06 March 2019

Paul Scott

Abstract

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This paper responds to the conceptual inflation of constitutionalism in recent years by considering the relationship between constitutions and the specific concept of constitutionalism, seeking to establish the limits to the identification of the latter outside its traditional province. It considers both constitutions and constitutionalism in general terms, but seeks in particular to elucidate the relationship between the political constitution and political constitutionalism. This task requires an explanation of the law/politics divide and the paper argues for an institutional distinction between the two concepts, as opposed to one based upon the supposedly distinctive rationalities associated with law and politics. It grafts these categories onto a concept of constitutionalism characterized by a specific functional logic, whereby the same mechanisms that constitute power also limit that power. As such, it argues that to identify constitutionalism in contexts in which constitution and limitation occur separately—as in different layers of a multi-layered constitutional order—is mistaken. Constitutionalism is defined by this distinctive dualism, which in turn grants it its legitimating potential.

In light of this definition of constitutionalism, the paper considers the relationship between law and politics within the constitutional order, offering three potential accounts of the connection between them. Amongst these, it endorses the idea that law and politics are necessarily linked: Within the democratic constitution, each frames the other such that legal requirements are the outcome of a political process which itself takes a form determined by law. The two phenomena are therefore inseparable; in a certain sense, all law is politics and all politics is law. The piece ends by suggesting that this claim is true where, and only where, the conditions laid down for constitutionalism hold true. Constitutionalism is a dualist phenomenon which, where it occurs, brings with it a highly particular melding of the legal and the political.

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. 2157 - 2183
Copyright
Copyright © 2013 by German Law Journal GbR

Footnotes

*

Lecturer in Public Law, University of Southampton, P.F.Scott@soton.ac.uk. My thanks to Chris McCorkindale and Marco Goldoni for inviting me to the conference at which this paper was first presented, and to the participants, particularly Jeff King and Graham Gee, for their helpful questions and comments.

References

1 For a representative body of literature, see, e.g., The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Martin Loughlin & Neil Walker eds., 2008); The Twilight of Constitutionalism? (Petra Dobner & Martin Loughlin eds., 2010); Transnational Governance and Constitutionalism (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., 2004). Little of the analysis in these works is explicitly conceptual: It mostly presupposes, rather than argues for, a specific understanding of the term. For an attempt to identify the essence of the concept as it is used in UK constitutional scholarship, see Jo Eric Khusnal Murkens, The Quest for Constitutionalism in Public Law Discourse, 29 Oxford J. Legal Stud. 427 (2009). Murkens's conclusion is that “h+inting at constitutionalism as a new but hollow vessel is constitutionally inaccurate, analytically fallacious, and explanatorily vacuous,” and so “e+ither entire new chapters expounding the concept of constitutionalism need to be written and inserted into public law textbooks, or its usage should be purged from the discussion.” Id. at 454– 55.Google Scholar

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4 The use of such labels inevitably confronts the vast critical literature which deprecates their underlying logic and, in particular, the stability of the distinction. See, for example, Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction, 130 U. Pa. L. Rev. 1349 (1982). Such deprecation applies both at the level of power generally understood, and in the more specific context of legal power. Nevertheless, as long as it is emphasized that the label “private” does not imply that whatever is so labeled is of no political significance—that the divide between public and private is not and cannot be a Chinese wall—then such identification is not in itself harmful and captures an analytically useful distinction, which performs a central function in, for example, determining the applicability of human rights norms. See, for example, Human Rights Act, 1998, c. 42, § 6 (Eng.).Google Scholar

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45 The division of powers between the federal government and the states is an eternal feature of constitutional discourse in the United States. In the United Kingdom, notwithstanding that the devolution settlements do not subtract from the legislative competence of the Westminster Parliament, there has been a revival of the relevant jurisprudence in recent years as a consequence of devolution. See, e.g., Imperial Tobacco Ltd v. Lord Advocate [2012] UKSC 61, [102]–[125] (appeal taken from Scot.) (noting particularly the distinction between single and dual enumeration in the judgment of Lord Reed).Google Scholar

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55 In this sense, the project fails to stay true to Lord Hailsham, who declared the entrenchment of minority rights in the constitution the “the least important part of the whole package” he was recommending: the true evil, he declared, “lies not in an excess of democracy, but in too little,” in accordance with which he also recommended a fully federal constitutional structure for the United Kingdom. See Hailsham, supra note 51, at 226.Google Scholar

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