The Concept of the Constitution In the Jurisprudence of Michael Oakeshott
| Author | Daniel Andrew Skeffington |
| Position | M.Sc. candidate in Political Theory and historical research assistant, The London School of Economics and Political Science, '20 |
| Pages | 1-31 |
2020 LSE LAW REVIEW 1
The Concept of the Constitution
In the Jurisprudence of Michael Oakeshott
Daniel Andrew Skeffington*
ABSTRACT
Michael Oakeshott, Professor of Political Science at the London School of Economics (1950-
1968), wrote and taught extensively on history, politics, philosophy, and law. Yet one of the
central concepts in state theory, the constitution, goes almost unmentioned in his work, leading
one to question whether, for him, such a concept even exists. This essay explores that question,
arguing that such a concept does indeed exist. For Oakeshott, the constitution is learned and
professed rather than written down and applied, in the manner of a vernacular language. T his
essay proceeds in six sections; section one examines the foundations of his thought, the Latin
concepts of lex and jus, which stand for the written laws and ‘rightness’ of these laws. Section
two explores how these concepts interact, and the relationship between politics and the law in the
constitution. Section three expands on T om Poole’s understanding of societas and universitas,
the two ‘poles’ between which Oakeshott’s moral association may swing, to explain the reflexive,
dialectical dynamic at the heart of his constitutional theory. Section four grounds Oakeshott’s
jurisprudence in his theology, emphasising his individualistic philosophy and the central role
moral discourse plays in it. Section five refocuses the debate on the rule of law, exploring
Oakeshott’s argument that the constitution is an understanding we have of a ruler’s right to rule,
and its relationship to another ambiguous concept, sovereignty. Section six concludes with a
summation of Oakeshott’s concept of the constitution , and some thoughts on future comparative
work.
* M.Sc. candidate in Political Theory and historical research assistant, The London School
of Economics and Political Science, '20. First Class B.Sc. (Hons) in Politics and
International Relations, The University of Bath, '19. Daniel would like to thank Tom Poole
for his insightful discussions on the subject, and for his feedback on an earlier draft.
The Concept of the Constitution Vol. VI
2
INTRODUCTION
In his essay, The Rule of Law, Michael Oakeshott makes a characteristically sparing
reference to the concept of ‘the constitution’, remarking that it is ‘neither more
nor less than that which endows law with authenticity’.1 It is one of the only times
it appears as an ob ject of discussion, let alone interest, in his works. Given his
position as one of the leading British political thinkers of the twentieth century,
this omissio n from his thought is perplexing, and begs an important question:
Does a coherent concept of the constitution exist in the works of Michael
Oakeshott?
A Fellow in history at Cambridge prior to the Second World War, Oakeshott
took up the Chair in Political Science at the London School of E conomics in the
Michaelmas of 1950, lecturing on the history of political thought. He would
remain the Convener of the Government Department at the School until his
retirement in 1968, writing on history, politics, philosophy, and law. His most
famous collection of essays, Rationalism in Politics, was a sustained attack on the
post-war political consensus of contemporary Europe, gaining him repute as a
leading liberal and conservative thinker. His magnum opus, On Human Conduct,
was published in 1975, examining the theoretical foundations of what he called
‘civil association’; the general, abstract ideal of a political community. In 1983, On
History added to many of the arguments of On Human Conduct, including an
extended discussion on legal theory titled The Rule of Law. It is this last essay that
has drawn a group of prominent scholars associated with the LSE to his work.2
The legal philosophers Tom Poole, Martin Loughlin, and David Dyzenhaus, as
well as the political theorists David Boucher and Jan-Werner Müller, have begun
examining the importance of his philosophy for questions of law. The most
1 Michael Oakeshott, ‘The Rule of Law’ in Michael Oakeshott, On History and Other Essays
(Liberty Fund Press 1999) 152.
2 David Dyzenhaus and Thomas Poole (eds), Law, Liberty and State. Oakeshott, Hayek and
Schmitt on the Rule of Law (Cambridge University Press 2017); Martin Loughlin, Public Law
and Political Theory (Oxford University Press 1992) 63-83; Martin Loughlin, The Idea of Public
Law (Oxford University Press 2004) 153-163; Steven Gerencser, ‘Oakeshott on Law’ in
Paul Franco and Leslie Marsh, A Companion to Michael Oakeshott (The Pennsylvania State
University Press 2012).
To continue reading
Request your trial