Political Jurisprudence

198 Pages·2018·1.094 MB·English

by  Martin Loughlin

POLITICAL JURISPRUDENCE

Political Jurisprudence
MARTIN LOUGHLIN
Professor of Public Law,
London School of Economics & Political Science
1
1
Great Clarendon Street, Oxford, OX2 6DP,
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Preface
i have recently been writing about constitutions but the preliminaries keep getting
in the way. By this i mean the most basic elements that establish the authority of the
office of government. i provided an account of those elements in two earlier books:
The Idea of Public Law presents the conceptual building blocks of the subject, and
Foundations of Public Law outlines its conceptual history.1 But there were aspects i
was not able to consider in detail, some of which i later examined in various essays.
This book brings together a selection of those essays with the aim of providing a
fuller statement of the subject of political jurisprudence.
all but one of these have previously appeared in print. since they have been writ-
ten for different occasions, all have been revised either to eliminate overlap or to
streamline presentation of the argument. i am most grateful to the editors and pub-
lishers for permission to reproduce from the following:
1. ‘The nature of Public law’ in c Mac amlaigh, c Michelon, and n Walker
(eds), After Public Law (oxford: oxford university Press, 2013), 11–24.
2. ‘The Political Jurisprudence of Thomas hobbes’ in d dyzenhaus and t Poole
(eds), Hobbes and the Law (cambridge: cambridge university Press, 2012),
5–21.
3. ‘The constitutional Thought of the levellers’ 2007 Current Legal Problems
1–39.
4. ‘Burke on law, revolution and constitution’ (2015) 29 Giornale di Storia
Costitutionale/J. of Constitutional History 49–60.
5. ‘droit Politique’ (2017) 17 Jus Politicum: Revue de Droit Politique 299–335.
6. ‘santi romano and the institutional Theory of law’ in s romano, The Legal
Order, M croce trans. (london: routledge, 2017), x–xxviii.
7. ‘Politonomy’ in J Meierhenrich and o simons (eds), The Oxford Handbook of
Carl Schmitt (new York: oxford university Press, 2017), ch. 21.
in selecting these papers, the greatest challenge has been to show how particular
jurists or particular themes contribute to a common strand of thought. since the
distinguishing features of political jurisprudence are outlined in the introduction,
i will say nothing further about that. But i should here emphasize the significance
of constitutions in regulating political activity. My argument is that the role of
constitutions cannot be explained without having regard to a series of historic tran-
sitions: from sovereign to state, from state to constitution, from law to legality, and
from political right to constitutional legality. Political jurisprudence shows us how
1 M loughlin, The Idea of Public Law (oxford: oxford university Press, 2003); id., Foundations of
Public Law (oxford: oxford university Press, 2010). since i build on the analysis in these books in this
work, i will refer to them throughout by the abbreviations iPl and FPl respectively.
Contents
introduction 1
1. Public law as Political Jurisprudence 11
2. The Political Jurisprudence of Thomas hobbes 22
3. leveller legacies 35
4. Burke on law, revolution, and constitution 63
5. Droit Politique 75
6. law as institution 109
7. Politonomy 124
8. reason of state/state of reason 141
Bibliography 169
Index 187
Introduction
Every school of jurisprudence makes specific claims about the autonomy and
rationality of law. Political jurisprudence is no exception. It claims that law is to be
understood as an aspect of human experience called ‘the political’. This is an idea
that jurists commonly suppress. The claim may be controversial but should not be
misunderstood.
Law as an aspect of the political does not mean it is simply an instrument of ruling
power. Nor does it imply that legal questions are in reality political questions.
Political jurisprudence takes its orientation from the fact that people are organized
into territorially-bounded units within which authoritative governing arrangements
have been established. This is a distinctive way of being and acting in the world, the
world of the political. The political should not be confused with politics. Politics is
a set of practices that has evolved to manage conflicts that arise between individuals
or groups. The political, by contrast, refers to a decisive and more basic phenomenon,
that the primary form of the political unit—the state—is embedded in structures of
authority and obedience whose power is such that they shape their members’ sense
of justice and injustice, right and wrong, freedom and servitude, good and evil.
Political jurisprudence, then, asserts that law is an aspect of the political and that
the political is an autonomous way of viewing the world. From these basic premises,
a key insight into the relationship between law and the political is disclosed. Political
jurists, those who cultivate this type of jurisprudence, are able to explain how law
operates to strengthen the integrative forces of the political. The political might be
founded on a rudimentary inclusionary-exclusionary distinction, and therefore on
whatever is needed to preserve the unit’s collective identity, but the authority of its
worldview is strengthened through institutionalization. Viewed from this perspec-
tive, law is an aspect of the political. But to perform its authority-generating func-
tions effectively, law must operate relatively autonomously. The political and the
legal operate relationally, without one being reduced to the other.
Although rarely identified as a distinct school, political jurisprudence has gener-
ated a rich body of knowledge about the nature of that relationship. It has evolved as
a common European discourse extending from the work of Bodin in the sixteenth
century to Schmitt in the twentieth. Many of the innovative jurists, including
Bodin, Grotius, Pufendorf, Montesquieu, Hauriou, Romano, Heller, and Schmitt,
practised law. Some, such as Hamilton, Burke, and de Tocqueville, trained as lawyers
but made their mark in other roles. Others, including Hobbes, Spinoza, Rousseau,
and Hegel, are commonly regarded as political philosophers. All of them made
Political Jurisprudence. Martin Loughlin. © M Loughlin 2017.
Published 2017 by Oxford University Press.
2 Introduction
significant contributions to political jurisprudence. They belong to this school by
virtue of their analyses of the constitution of political authority in the language of
rights, duties, powers, and liabilities.
The advances made by these jurists are examined in the chapters that follow. My
objective in this introduction is to explain why their work belongs to this branch of
jurisprudence. Political jurists neither possess a common political philosophy nor
hold similar views on political questions. They are participants in a common conver-
sation about the relationship between the legal and the political and of the way that
political authority is constituted. And their methods are invariably anti-rationalist,
historicist, nominalist, relativist, or pragmatic in character.
* * *
Political jurisprudence maintains that the question of how political authority is
constituted is the key to understanding the nature of legal order. This distinguishes
it from other theories of law. Most theories begin by presupposing the authority of
the legal order, a presupposition most explicit in legal positivism. Since the latter half
of the nineteenth century, legal positivism has established itself as the dominant
school, typically defining law not as a norm incorporating a value but either as an
object to be explained empirically or as a logically self-authorizing set of norms.
Once the authority of the legal order is presupposed and law treated as a matter of
fact or logic, the province of jurisprudence narrows. It is limited to the task of ex-
plaining the structural form of positive law.1
The reason for this move is not difficult to understand. If jurisprudence includes
questions about the rightness of the forms of government through which laws are
enacted, then—or so it is assumed—there would be no end to controversy about the
nature of law. But that is not all: if the broader method were adopted then no cred-
ible claim could be advanced that law is a branch of scientific knowledge.
One of the earliest proponents of such a limit to the province of jurisprudence was
Friedrich Carl von Savigny. In his lectures on legal method in 1802–3, Savigny de-
clared that ‘in no way can public law—the systematic representation of the constitu-
tion of the state—be brought into the concept of jurisprudence’.2 Although he was
later to revise that view,3 many jurists followed his lead and argued that constitutional
1 This applies both to accounts such as Austin’s (below n.4) that explains law as a set of commands
(i.e. orders backed by threats) as well as to normative versions of legal positivism that define law as a
scheme of interpretation of material events: H Kelsen, Introduction to the Problems of Legal Theory, BL
Paulson and SL Paulson trans. of first edn. [1934] of Reine Rechtslehre (Oxford: Clarendon Press, 1992);
HLA Hart, The Concept of Law, L Green, J Raz and PA Bulloch eds (Oxford: Oxford University Press,
3rd edn. 2012).
2 FC von Savigny, Vorlesungen über juristische Methodologie, 1802–1842, A Mazzacone ed. (Frankfurt:
Klostermann, 2004), 139: ‘Auf keine Weise lässt sich aber das Staatsrecht—systematische Darstellung
der Staatskonstitution—in den Begriff der Jurisprudenz bringen.’
3 See FC von Savigny, System des heutigen römischen Rechts (Berlin: Veit, 8 vols 1840–1849). Savigny
then argued that law is created neither by legislative will nor universal reason but through the customs
of a people: see H Kantorowicz, ‘Savigny and the Historical School of Law’ (1937) 53 Law Quarterly
Rev. 326–43.
Introduction 3
law is not part of jurisprudence.4 This is the basis of the orthodox modern jurispru-
dential view that assumes the existence of the state. Once adopted, the science of
jurisprudence can devote itself to a series of technical questions concerning the
structural form and methods of interpretation of the laws enacted by the state.
For political jurists, this is a mistake. It narrows the scope of juristic inquiry to
such a degree that it distorts understanding of the modern form and function of law.
It leads to the assumption that law is an autonomous system of rules independent of
the cultural matrix that shapes its character as institutional order. The life of the law,
say political jurists, is not logic but experience (see Ch.6).
Political jurists explicitly reject legal positivism. But they also reject the claim,
prominent in the work of most contemporary anti-positivist jurists, that law has intrin-
sic moral authority. The differences here are more nuanced, not least because political
jurists accept that the establishment of institutional order produces good consequences.
Anti-positivist jurists argue that no precise distinction can be drawn between descrip-
tion (what the law is) and justification (what the law ought to be). But because they
equate legal order and right order they also claim that law has an intrinsic moral quality.
They maintain not just that law is an interpretative practice but that, in order to under-
stand it, a ‘theoretical ascent’ must be made from the specific dispute at hand to a ‘moral
reading’ of the constitutional order.5 Anti-positivist jurists invariably promote a nor-
mativist jurisprudence founded on an abstract and morally-infused conception of ‘le-
gality’. Legality quickly comes to rest on the authority of reason itself.6
From the perspective of political jurisprudence, this anti-positivist stance is dis-
torted. It skews legal analysis towards a model-guided reading of texts, whether liber-
tarian, liberal, or republican, and this converts legal interpretation into a type of moral
reasoning. The authority for this rests on an idealized version of legality generated by
a set of universal moral axioms. Rather than explaining the often messy practices of
actual regimes, normativist analysis constructs an idealized representation of constitu-
tional order and then promotes that idealized model through a particular scheme of
interpretation. Its starting point is not the political world and its form of government
but a belief in ‘the moral sovereignty of the community of rational beings’.7
Political jurists, by contrast, argue that reason can organize and clarify arrange-
ments but cannot tell us what ought to be. They maintain that values are not self-
evident, that values conflict, and that conflicts of values are resolved not through
reason but by an exercise of will. Rejecting the existence of universal values in this
domain, political jurisprudence is both anti-rationalist and relativist.
4 See, e.g., J Austin, The Province of Jurisprudence Determined, WE Rumble ed. (Cambridge:
Cambridge University Press, 1995), 216.
5 See, e.g., R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford:
Oxford University Press, 1996); id., ‘In Praise of Theory’ in his Justice in Robes (Cambridge, MA:
Belknap Press, 2006), ch.2; TRS Allan, The Sovereignty of Law (Oxford: Oxford University Press, 2013).
6 See, e.g., Allan, ibid. 44, arguing if we accept, as we should, that the rule of law is the fundamental
ideal ‘our concept of law is closely linked to our ideas about justice and freedom’.
7 I Hunter, Rival Enlightenments: Civil and Metaphysical Philosophy in Early Modern Germany
(Cambridge: Cambridge University Press, 2001), 366.