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This essay reviews Ran Hirschl’s City, State: Constitutionalism and the Megacity, a study of ‘the great constitutional silence concerning one of the most significant phenomena of our time: urban agglomeration and the rise of megacities’ and which maintains that the solution to contemporary urban problems crucially depends on a ‘constitutional emancipation’ of the city. The essay argues that Hirschl is unable to deliver on his major claim. Launching his thesis on a skewed account of the development of the political role of the city, a one-sided presentation of the constitutional order of the modern state, and a failure to appreciate the impact of urbanization on the city’s standing as a unit of government, Hirschl ignores the work of public lawyers on the challenges of metropolitan government and argues, unconvincingly, that these challenges can be resolved once we turn to the abstractions of constitutional theory.

The work of the mid-Victorian jurist, AV Dicey, has had a remarkable influence on British constitutional thought, not least in establishing the orthodox framework within which modern constitutional lawyers continue to work. That legal positivist framework has, however, recently been challenged by jurists advocating what is generally called common law constitutionalism. Accepting the core of sense in Dicey’s account, their objective has been to revise some of the jurisprudential underpinnings of his framework for the purpose of showing that the dominant characteristic of the British system is not sovereignty but legality. Mark Walters now builds on this revisionary work by offering a new historically informed study of Dicey’s Law of the Constitution, which is designed to show that the orthodox interpretation of Dicey as a legal positivist is itself misconceived. Walters argues that, properly understood, Dicey had a more nuanced appreciation of the relationship between sovereignty and legality than is commonly appreciated. This review article examines Walters’s exercise and assesses its contemporary significance.

The Cambridge Companion to the Rule of Law introduces students, scholars, and practitioners to the theory and history of the rule of law, one of the most frequently invoked-and least understood-ideas of legal and political thought and policy practice. It offers a comprehensive re-assessment by leading scholars of one of the world's most cherished traditions. This high-profile collection provides the first global and interdisciplinary account of the histories, moralities, pathologies and trajectories of the rule of law. Unique in conception, and critical in its approach, it evaluates, breaks down, and subverts conventional wisdom about the rule of law for the twenty-first century.

Sovereignty is the central tenet of modern British constitutional thought but its meaning remains misunderstood. Lawyers treat it as a precise legal concept – the doctrine of parliamentary sovereignty – but commonly fail to acknowledge that that doctrine is erected on a skewed sense of what sovereignty entails. In particular, they do not see that the doctrine rests on a particular political conviction, that the British state depends on a central authority equipped with an unlimited power. These two facets of sovereignty are now so deeply intertwined in legal consciousness that they cannot easily be unravelled and this becomes the main barrier to thinking constructively about Britain’s constitutional arrangements. This article substantiates these claims by explaining how the doctrine came into being, demonstrating how it is tied to a deeper political conviction, showing that its political underpinnings have been considerably weakened over the last century, and indicating how its re-working is the precondition of constitutional renewal.

The legal idea of the state is commonly misunderstood. In this note, the nature of the concept is explained and its significance for modern legal thought presented. Drawing on the distinction between sovereign and sovereignty, it is argued that the state-an idea that links territory, authority and people in an intelligible scheme-is the foundational concept that enables lawyers coherently to engage with the issue of political authority.

Glossing a passage from Benjamin Constant’s Reflections on Constitutions, this article first assesses the roles performed by silences, gaps, and abeyances in constitutional texts and then examines recent initiatives that seek to fill those silences. The initiatives to fill those silences are evaluated by contrasting three conceptions of modern constitutions: the constitution as a framework for continuing political negotiation, the constitution as an order of values, and the constitution as facilitator of an evolving administrative order. The first, the framework conception, highlights the importance of political practices and in particular of the deliberative role of the legislature, the second, the value order conception, accentuates the moral dimension of constitutions and promotes the judiciary’s role as guardian of constitutional values, and the third, the administrative order conception, emphasizes technical efficacy and the key role of the executive in promoting a governmental agenda. The article concludes by raising questions about those recent approaches that seek the elimination of constitutional silences.

In 1885 A.V. Dicey identified the rule of law as a key principle of British constitutional law. Presenting it both as a product of English common law method and an expression of classical liberalism, Dicey's concept lingered on into the twentieth century but mainly as a contentious ideological doctrine or simply as a vague rhetorical slogan. During the last fifty years, however, the concept has been revived, recrafted, relocated and reified. The rule of law has become a universal trope, albeit with a range of contestable meanings. This article traces this development, showing how it has been converted into a phrase of considerable political potency not only domestically but also in the international arena.

This note argues that the claim that globalization leads to a fundamental shift in the very idea of law is misconceived. First, because the juristic claims advocates make are not new; secondly, because they seek inappropriately to convert empirical issues into conceptual claims; thirdly, because they promote conceptual claims by misidentifying the character of modern law; and finally because, although there is an important issue to be raised by contemporary developments, this—a politico-legal issue—is one that they avoid.

In his 2019 Reith Lectures on the rise of law and decline of politics, Jonathan Sumption presents a thesis that, on its face, seems identical to that of J.A.G. Griffith's defence of the political constitution. Given the radical differences in their views on equality, democracy, and redistribution—with Griffith working in the tradition of democratic socialism espoused by the Webbs, Tawney and Laski, and Sumption expressing the libertarian philosophy underpinning Thatcherite policies—this is puzzling. This article sets their views in historical and political context and argues that the similarities are superficial, whereas the differences are profound. It then proceeds to show the weaknesses in Sumption's defence of his thesis.

The growth of constitutional democracy has been a remarkable feature of the last 30 years, but during the last decade it has suffered a dramatic decline. That decline is marked less by constitutional democracies being overthrown than by an increase in regimes that retain the formal institutional trappings while flouting the norms and values on which constitutional democracies are based. This process of constitutional degradation is the subject of two recent books that together present the most comprehensive evaluation available on the current state of constitutional democracy. In this review article, the findings and analysis presented in Graber, Levinson and Tushnet’s Constitutional Democracy in Crisis? and Ginsburg and Huq’s How to Save a Constitutional Democracy are examined and appraised. The article argues that solutions to the contemporary crisis cannot be found only by strengthening liberal institutions; to survive, constitutional democracy must also seek to reinvigorate its democratic aspirations.

As the constitutionalisation of political life has been sweeping across the world, British legal scholars have felt emboldened to reconstruct the British constitution in the image of a modern constitutional framework of hierarchically-ordered fundamental law. This has resulted in a great deal of imaginative re-interpretation in which fluid practices have been invested with implausible normative authority, with the author’s political beliefs only just lurking below the surface. I try to avoid some of the major pitfalls of this approach by examining not the ‘thing in itself’ but its various meanings. I therefore present a simplified historical sketch of modern constitutional development in order to show how at distinct periods the meaning of the word ‘constitution’ has been shaped by the political forces of the time. I conclude that none of the conceptions that were dominant in the various phases of modern development is now able to command authority and this helps to explain why what counts as ‘constitutional’ is an intensely contested matter.

John Millar elevated law teaching from mere instruction in technicalities to the level of a genuinely liberal subject, largely by using his teaching to educate students in the science of legislation. A pupil and disciple of Adam Smith, Millar, through his teaching and writing, established his reputation as a key figure in the Scottish Enlightenment movement.

A.V. Dicey, who held the Vinerian Chair of English Law at Oxford University between 1882 and 1909, is widely regarded as the high priest of orthodox constitutional thought in Britain. Living through a period of great political and economic change, Dicey recognized that the duty of the constitutional lawyer could no longer be one of simply venerating Britain’s ancestral, unwritten constitution. He appreciated the need to try to lay bare its legal foundations and to identify its fundamental principles. In embarking on this exercise, Dicey, a follower of John Austin, employed an analytical method which treated law as a datum to be analysed and classified and which served to furnish a descriptive account of how law’s various divisions fit together to provide an ordered whole. Dicey was the first to apply this legal positivist method to the study of constitutional law in Britain. The method became so ensconced in legal thought in twentieth-century Britain that today lawyers scarcely acknowledge any work in constitutional law which predates Dicey’s work. It is as though he invented the subject.

This chapter examines the origins and continuing significance of the historical method in public law. It explains how the adoption of a historical method contributed to the formation of public law as a distinctive field of knowledge in European jurisprudence. It focuses on developments in French legal thought in the sixteenth century, this being the period in which modern ideas of public law were forged. In this era of intense religious conflicts and extending powers of government, the character of collective human association was placed in question and politico-legal thought became historicized, rationalized and secularized. The historical method in modern public law, it suggests, has distinctive features: it looks not to nature but to a world of man’s making; it focuses on the variety rather than the uniformity of human nature; it accentuates differences rather than similarities; and sees continuous change where others emphasize permanence.

This introduces the rich literature that examines the relationship between the legal and the political and explains the main characteristics of the branch of scholarship called political jurisprudence. Although scholars have produced a rich body of knowledge about that relationship, they are not commonly identified as forming a distinct school. It is suggested that political jurists neither possess a common political philosophy nor hold similar views on political questions. They are political jurists because they deploy certain common methods and are participants in a common conversation about the relationship between the legal and the political and of the way that political authority is constituted.

This chapter examines the contribution French jurists have made to the development of political jurisprudence. It argues that that contribution can most concisely be presented by examining the manner in which a distinctive concept of droit politique has been devised and how its meaning has evolved within French legal and political thought. The chapter first assesses the pioneering contributions of Bodin, Montesquieu, and Rousseau, and then examines the ole that the concept performed during the revolutionary debates of the 1790s. It then proceeds to explain its subsequent development through the nineteenth century debates triggered by the rise of positivist thought and on to the rejuvenation of concepts of right in contemporary times.

This chapter presents an account of the constitutional ideas of a political group known as the Levellers. Formed during the course of the English revolution, they survived only a few years and failed to achieve any of their main objectives. Leveller ideas nevertheless acquire importance as the first movement to expound the main precepts of modern constitutional democracy. The development of that movement is sketched and the key themes of their constitutional thought examined. Arguing that modern British constitutional practice has developed in ways that diverge from Leveller ideas, the chapter shows how, by focusing on their ideas, the tensions within contemporary governmental arrangements—especially those between the discourses of governing and of constitutionalism—can be more clearly delineated.

This chapter examines the history of political-legal reasoning. It suggests that this history begins in the Renaissance with the emergence of a doctrine of ‘reason of state’, a doctrine which was widely debated between the late-sixteenth and early-eighteenth centuries but remained contentious throughout. It argues that reason of state continued to exert an influence in the modern political world, but that that influence is complicated by changes in the nature and forms of government. Most importantly, the modern state presents itself as a constitutional state and once the constitution is established as ‘fundamental law’, whatever remains of reason of state discourse is subsumed under the idea of ‘constitutional legality’. Consequently, those elements of the doctrine that live on in contemporary practice no longer fall into a distinct category of reason of state; they have become a facet of the emergence of the modern ‘state of reason’.

What is the significance of Thomas Hobbes’ contribution to jurisprudence? Although often treated as a founder of the dominant modern school of legal positivism, positivists remain embarrassed by the prominence he gives to natural law. This chapter maintains that rather than arguing about whether he is a natural lawyer or a legal positivist, scholars should consider how he drew a clear distinction between natural law and positive law for the purpose of crafting a rich, ambitious, and comprehensive science of law. The chapter’s basic thesis is that Hobbes is engaged in the task of constructing a science of ‘political right’.

This chapter examines Carl Schmitt’s contribution to political jurisprudence. It approaches the issue through the concept of politonomy, a concept first alluded to by Schmitt but which he never developed. Politonomy seeks a scientific understanding of the basic laws and practices of the political. The chapter situates Schmitt within the German tradition of state theory and shows that his overall objective was to build a theory of the constitution of political authority from the most basic elements of the subject. It suggests that Schmitt occupies an ambivalent position in political jurisprudence and that this is because of his distrust of the scientific significance of general concepts. To the extent that he acknowledged the existence of a ‘law of the political’, this is found in Schmitt’s embrace of institutionalism in the 1930s and later in his account of nomos as the basic law of appropriation, division, and production.

Institutionalism is a theory that maintains that law is neither norm nor command but institution. It emerges in the late-nineteenth century primarily through the work of Hauriou in France and Romano in Italy. Their innovative studies are shaped by reflecting on the effects of social and economic change on law, which manifests itself primarily in the emergence of administrative law. In this chapter the importance of institutional jurisprudence is assessed by examining its historical context and offering reflections on its continuing significance. It argues that, partly because of the lack of English translations of its leading exponents, institutionalism has been relatively neglected in Anglo-American jurisprudence, and that it continues to offer acute insights into contemporary juristic controversies.

Political jurisprudence is the branch of jurisprudence that treats law as an aspect of human experience called ‘the political’. This is an approach that many contemporary jurists, those whose work presupposes the autonomy of legal order, tend to suppress. In this book, Martin Loughlin assesses the contribution made by political jurists and explains its contemporary significance. Political jurists maintain that the essential characteristics of modern legal order can only be revealed by considering how political authority is constituted. The political is orientated to the fact that people are organized into territorially-bounded units within which authoritative governing arrangements have been established, but the authority of this way of viewing the world is strengthened only through institutional-building. Law may be an aspect of the political, but to perform its authority-generating functions effectively it must operate relatively autonomously. The political and the legal operate relationally, without one being reduced to the other. Loughlin introduces the rich literature of political jurisprudence through essays on innovative political jurists such as Hobbes, Burke, Constant, Romano, and Schmitt, and on such central themes as political right, institutionalism, constitutional legality, and reason of state. Building on his earlier books, The Idea of Public Law (OUP 2003) and Foundations of Public Law (OUP 2010), this collection extends his account of this influential strand of European legal thought.

The main theme of this chapter is to suggest that the nature of public law is best explained by examining the conditions of its formation. This type of exercise reveals that public law is a modern concept which is formed by reworking the medieval idea of natural law in the context of the emergence of the modern idea of the sovereign state. In this chapter, the nature of the subject is explored through analysis of the writings of Bodin, Pufendorf, and Rousseau. The objective is to show not only that public law is a broader concept than positive law but that it also has an ambiguous character. These ambiguities permeate modern public law thought and leave it with a polarized consciousness.

This paper, the text of the Robin Cooke Lecture given at the Victoria University of Wellington in December 2017, examines the constitutional implications of the UK’s decision following the referendum of June 2016 to leave the European Union. Noting that by the latter half of the twentieth century many were arguing that the prospect for the British constitution was one of progressive paralysis, it argues that this prospect was avoided by the UK’s embrace of continuing European integration. For this reason, the UK’s withdrawal from the EU presents a series of constitutional challenges that are more complicated than the mantra ‘taking back control’ would suggest.

The constitutional imagination refers to the way we have been able to conceive the relationship between thought, text and action in the constitution of modern political authority. The lecture seeks to demonstrate how modern constitutional texts come to be invested with a ‘world-making’ capacity. The argument is advanced first by explaining how social contract thinkers have been able to set the parameters of the constitutional imagination (thought), then by showing that constitutions are agonistic documents and their interpretative method is determined by a dialectic of ideology and utopia (text), and finally by examining the degree to which constitutions have been able to colonise the political domain, thereby converting constitutional aspiration into political reality (action). It concludes by suggesting that although we seem to be entering a constitutional age, this is an ambiguous achievement and whether the power of the constitutional imagination can still be sustained remains an open question.

This chapter examines the significance of public authority in the British system of government. It seeks, in particular, to explain why the structure of public authority that evolved in Britain did not recognize a formal distinction between public law and private law. Critical to that account, it is suggested, is an appreciation of the ambivalent standing of the concepts of state, constitution, and administration in the British system. The status of these concepts has been placed in question as a consequence of the growth of government, especially over the last century. The dramatic extension in administrative government has unsettled many of the assumptions on which Britain's historic evolutionary constitution has rested and presented certain novel legal challenges. This has resulted in the formation of a centrally-directed administrative system, the emergence of a distinctive system of administrative law, and an explicit acknowledgment of a public law/private law division.

Many of the assumptions underpinning the modern system of nation-states are now being placed in question. Increased global flows of capital, intensified networks of social interaction, and the emergence of transnational regulatory regimes on a significant scale are affecting the ability of national governments to regulate their economic conditions and improve their citizens’ well-being. The effects of economic, technological and cultural change are having significant impacts on the activity of governing, the cumulative effect of which is experienced as a diminution in the efficacy of those levers of command and control that have been a common feature of the modern nation-state settlement. These developments have generated a great deal of policy analysis and scholarly examination.

In his 1978 Chorley Lecture on ‘The Political Constitution’, John Griffith presented a critical appraisal of contemporary trends in British constitutional thinking from a functional perspective. This lecture has recently been revived by a new generation of public law scholars as the founding text of an emerging school of ‘political constitutionalism’. In this paper, I argue that today’s political constitutionalists have distorted Griffith’s method and thereby misconstrued its significance. In doing so, they have also obscured the orientation of their movement.

This article examines the origins of the concept of constitutional pluralism that has emerged in the last decade and it critically assesses the claims of its advocates. It argues that the claims made on behalf of the concept cannot be sustained and seeks to show that constitutional pluralism is an oxymoronic concept.

This article examines the meaning and significance of the concept of constituent power in constitutional thought by showing how it acts as a boundary concept with respect to three types of legal thought: normativism, decisionism and relationalism. The concept can be fully appreciated, it suggests, only by adopting a relationalist method. This relationalist method permits us to deal with the paradoxical aspects of constitutional founding creatively and to grasp how constituent power, as the generative aspect of the political power relationship, works not only at founding moments but also within the dynamics of constitutional development. Relationalism realizes this ambition by exposing the tension between unity and hierarchy in constitutional foundation and the tension between the people-as-one and the people-as-the governed in the course of constitutional development. It contends, contrary to normativist claims, that constituent power remains a central concept of constitutional thought.