The Constitutional Imagination
| Date | 01 January 2015 |
| Published date | 01 January 2015 |
| Author | Martin Loughlin |
| DOI | http://doi.org/10.1111/1468-2230.12104 |
THE
MODERN LAW REVIEW
Volume 78 January 2015 No 1
The Constitutional Imagination
Martin Loughlin*
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.
INTRODUCTION
The American Revolution would have been of no great moment if it had been
only a struggle by colonists to achieve their independence from the British
Crown. Empires rise and fall, territories are acquired and lost: this has been the
story of the will to power down the ages. But the American Revolution is of
world-historical significance because it achieved ‘a revolution in the principles
and practices of governments’. The American colonists made a stand not only for
themselves but for the world. Until then, governments had assumed a monar-
chical form whose driving principle was militarism. The Revolution established
a system of government ‘on a moral theory, on a system of universal peace, on
the indefeasible hereditary Rights of Man’. It marked the moment when gov-
ernment could be established on ‘the principles of universal reformation’.1
By the time Paine expressed these sentiments in 1792, events in America had
been overshadowed by the dramatic unfolding of the revolution in France. In
the three years since Louis XVI had summoned the Estates-General, monarchical
*Professor of Public Law, London School of Economics & Political Science. This is the revised text of
the 43rd annual Chorley Lecture given on 17 June 2014. I have benefitted from responses from many
colleagues to the lecture and from subsequent discussion at a Faculty seminar at the University of
Pennsylvania Law School in September. I should like especially to thank Chris Foley, Frank
Michelman, Yaniv Roznai and Neil Walker for detailed comments on the initial written draft.
1 T. Paine, Rights of Man M. Philp (ed) [1791–1792] in his Rights of Man, Common Sense and other
Political Writings (Oxford: OUP, 1995) 83, 212, 213, 210.
bs_bs_banner
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. (2015) 78(1) MLR 1–25
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
government had been overthrown, the feudal system and its order of nobility
abolished, the Church removed from its privileged status and, in September
1792, the Republic proclaimed. Its permanent intent was then sealed in blood on
21 January 1793 by the execution of the king. Republican government, Paine
contended, ‘is now revolving from west to east, by a stronger impulse than the
government of the sword revolved from east to west’.2
These events, the republican revolutionaries asserted, signalled the emergence
of a new era of humanity. The old system of government had meant the taking
of power for its own aggrandisement, but the new system operated by delegating
power for the common good. The former promoted war, the latter peace; the
former encouraged national prejudice, the latter universal society.
A central feature of this new era of government was the establishment of the
altogether novel idea of a constitution. Political constitutions were no longer to
be conceived as some ideal expression of a nation’s culture, manners and
traditional forms of rule. A constitution in the modern sense was to be a
document drafted in the name of the people to establish and regulate the powers
of the main institutions of government, to specify the relationship between
government and citizen, and to take effect as fundamental law.
Since the late eighteenth century, these documentary constitutions have been
adopted throughout the world at critical moments in a nation’s history. During
the twentieth century, a lingering conservative distrust of ‘paper constitutions’
and mere constitutional machinery gave way to a general acceptance of the need
to draft constitutions that fixed the basic terms of a nation’s political compact.
And in the last 30 years or so, the distrust many on the left had often exhibited
about the way written constitutions might be used to halt the continuing social
revolution has apparently waned. The claim that constitutions specify the
authoritative ground rules of politics is today more widely accepted than at any
other point in modern political history. Whether the matter involves an assertion
of a nation’s right to self-determination, a challenge to the legitimacy of an
exercise of governing power, a plea to be treated with equal dignity and respect,
or even a basic struggle for justice in distribution, that political demand is now
invariably cast in the form of a constitutional claim. In this sense, we live today
in a constitutional age.
This is a recent phenomenon. It was neither a prominent issue for the
founders of The Modern Law Review in the 1930s,3nor the subject of Chorley
Lectures in the early years after their establishment in 1972.4Yet the role of
constitutions in shaping the nature of political engagement now excites interest
across the world. This invites reflection. Under what conditions can a written
2ibid, 213.
3 Editorial note (1937) 1 MLR 1. See also C. Glasser, ‘Radicals and Refugees: The Foundation of
the Modern Law Review and English Legal Scholarship’ (1987) 50 MLR 688.
4 John Griffith’s 1978 lecture was the first to consider constitutional issues, but his was a critique of
an emerging tendency to elevate political demands into constitutional language: J. A. G. Griffith,
‘The Political Constitution’ (1979) 42 MLR 1. Only after Nicole Questiaux’s 1989 lecture
reflecting on the bicentenary of the French Declaration do constitutional issues assume a greater
salience: N. Questiaux, ‘Bicentenary of a Declaration: A Time for Challenge’ (1990) 53 MLR
139.
The Constitutional Imagination
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited.
2(2015) 78(1) MLR 1–25
To continue reading
Request your trial