Rationalism in Public Law
| Published date | 01 July 2013 |
| Author | Grégoire Webber,Graham Gee |
| Date | 01 July 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12031 |
Rationalism in Public Law
Graham Gee*and Grégoire Webber**
Rationalism is ‘the stylistic criterion of all respectable politics’. So lamented political philosopher
Michael Oakeshott in a series of essays published in the 1940s and 1950s. Rationalism, for
Oakeshott, is shorthand for a propensity to prioritise the universal over the local, the uniform
over the particular and, ultimately, principle over practice. It culminates in the triumph of
abstract principles over practical knowledge in a manner that erodes our ability to engage in
political activity. Although Oakeshott’s critique was made with the practice and study of politics
in mind, it has a wider relevance. Rationalism, as we see it, has become the dominant style in
public law. We draw upon Oakeshott’s critique to elucidate the risks associated with rationalism
in public law and call for a renewed engagement with practical knowledge in the study of the
constitution.
INTRODUCTION
For public lawyers, ours is an age of principle. This is most obvious in the
attempt of many public lawyers to ground the British constitution on a set
of fundamental and rationally justified principles, such as the rule of law, the
separation of powers, and judicial independence. Today, the methodology of
many public lawyers seems to involve expounding the meaning and content of
a set of principles, evaluating prevailing practices in terms of those principles, and
if necessary calling for the re-fashioning of practice around principle. The result
is a push within the study of public law for a more rationalised, formalised, and
institutionalised constitution. This search for principle could be read as evidence
of the increasing sophistication and surefootedness of public lawyers; a reflection,
in other words, of the maturing of public law as an academic pursuit, with public
lawyers grappling with some of the longstanding shortcomings of a constitution
renowned for a pragmatism born of a deep-seated anti-rationalism. It could also
be read, however, as a reflection of a rationalistic propensity among public
lawyers to prioritise the universal over the local, the uniform over the particular
and, ultimately, principle over practice. This rationalistic propensity, it could be
argued, culminates in public lawyers losing the ability to differentiate between
the frailty of the constitution and the frailty of their own understanding of it.1We
surmise that there is truth to both of these readings. Our present aim is to
interrogate the rationalistic tendency discernible within the search for principle
in public law; that is to say, to explore what might be termed rationalism in public
law.
*University of Birmingham.
**London School of Economics and Political Science. For critical comments, we thank Jeff King,
Martin Loughlin, Jo Murkens, Jane Norton, and the MLR’s referees.
1 See F. Mount, The British Constitution Now (London: Heinemann, 1992) 32.
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© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(4) MLR 708–734
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
To explore the phenomenon of rationalism in public law, we draw upon the
work of Michael Oakeshott.2Public lawyers have grown accustomed to can-
vassing the works of political philosophers to cast light on the nature of public
law, but they have largely neglected Oakeshott’s oeuvre. We suspect that there
are three main and partially overlapping reasons for this. First, Oakeshott’s style
is idiosyncratic and something of an acquired taste.3His prose is, for a start,
distinctively ‘English’. It is peppered with homely – critics would say homespun
– metaphors drawn from the worlds of cricket, cookery, and Victorian England;
metaphors that are unlikely to be to everyone’s taste.4More significantly,
Oakeshott defies several scholarly conventions. There is little refutation of the
arguments of other political philosophers in his writings and few and far between
are the logical puzzles and linguistic analyses emblematic of much contemporary
political philosophy.5One consequence of this is that readers can sometimes
struggle to situate Oakeshott’s claims within the landscape of political philoso-
phy, let alone to extrapolate to other disciplines, such as public law.6A further
consequence is that the subtlety of his thought is not easily understood without
a close examination of some of his individual essays, for he rarely enumerates his
main claims, preferring to allow themes to flow uninterrupted into each other
as if mirroring the cadence of a conversation. As one commentator puts it,
Oakeshott’s essays ‘are like a palimpsest insofar as they seem to contain multiple
layers in which many intriguing things are visible in fleeting and tantalising
glimpses’.7
A second reason for the relative neglect of Oakeshott’s work by public lawyers
is the commonplace characterisation of his thought as ‘conservative’. We suspect
that this leads some public lawyers to assume either that Oakeshott’s writings are
of interest only to those sharing this disposition or that all of his writings pursue
a right-leaning agenda. Neither assumption holds true. For a start, Oakeshott is
not so easily categorised and, indeed, he eschews labels such as conservative or
2 Useful introductions to the political philosophy of Michael Oakeshott include W. H. Greenleaf,
Oakeshott’s Philosophical Politics (London: Longmans, 1966); P. Franco, The Political Philosophy of
Michael Oakeshott (New Haven: Yale University Press, 1990); and T. Nardin, The Philosophy of
Michael Oakeshott (University Park: Pennsylvania State University Press, 2001).
3 See generally J. L. Auspitz, ‘Michael Joseph Oakeshott (1901–1990)’ in J. Norman (ed), The
Achievement of Michael Oakeshott (London: Duckworth, 1993) 1, 9–10.
4 See J. Horton, ‘A Qualified Defence of Oakeshott’s Politics of Scepticism’ (2005) 4 European
Journal of Political Theory 23, 24.
5 Though seldom explicitly engaging with other writers in his principal works, Oakeshott did so
relentlessly throughout his career via book reviews, publishing more than 160 reviews across
almost 70 years, in both academic and non-academic publications. His book reviews for the period
1926–1951 are now consolidated in L. O’Sullivan (ed), M. Oakeshott, The Concept of a Philosophical
Jurisprudence: Essays and Reviews 1926–51 (Exeter: Imprint Academic, 2009).
6 It has been suggested that a further consequence of this unique style is that, even within the realm
of political philosophy, Oakeshott’s work ‘could never become the basis for a school or movement
of any kind’: N. O’Sullivan, ‘In the Perspective of Western Thought’ in J. Norman (ed), The
Achievement of Michael Oakeshott (London: Duckworth, 1993) 101, 101. See also P. Kelly, ‘The
Oakeshottians’ in M. Flinders, A. Gamble, C. Hay, and M. Kenny (eds), The Oxford Handbook of
British Politics (Oxford: OUP, 2009) 154.
7 D. Candrera, ‘Oakeshott and Plato: A Philosophical Conversation’ in T. Fuller and C. Abel (eds),
The Intellectual Legacy of Michael Oakeshott (Exeter: Imprint, 2005) 2, 3.
Graham Gee and Grégoire Webber
© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. 709
(2013) 76(4) MLR 708–734
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