Tilting at Windmills? Truth and Illusion in ‘The Political Constitution’
| Author | Thomas Poole |
| Date | 01 March 2007 |
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00636.x |
| Published date | 01 March 2007 |
TiltingatWindmills? Truth and Illusion in
‘The Political Constitution’
Thomas Poole
n
This article examines the constitutional scholarship of John Gri⁄th. Centring on Gri⁄th’s se mi-
nal article ‘The Political Co nstitution’, the analysis reveals a more complex a nd pessimistic th in-
ker than the standard image of Benthamite radical would allow. The article then examines the
cogencyof Gri⁄th’s vision ^ particularly his thesis that rights discourse ‘corrupts’law and politics
^ against recent developments. It concludes by re£ecting on Gri⁄th’s radical debunking style.
The windmills of law, ¢lled with hot air and straw, are targets for quixotic mis-
sions.
1
This article examines the constitutional scholarship of John Gri⁄th, principally
through an investigation of his most important and in£uential work, the article
‘The Political Constitution’.
2
That article, one of the key texts of late twentieth-
century Britishpublic law scholarship,was a version of Gri⁄th’s Chorley Lecture,
delivered in June 1978. Many of the contextual details have inevitably dated. It
would be brave soul today who could say that ‘no one nowadays doubts that the
Conservative party exists to promote the interests of private capital and the
Labour party the interest s of organised labour’.
3
Despite cultural glitches of this sort, revisiting Gri⁄th’s article is a valuable
exercise.While the‘half-life’of the works of academic lawyers is more often mea-
sured in years rather than decades,‘The Political Constitution’ continues to reso-
nate. The argument is brilliantly constructed: concise, punchy, provocative and,
above all, candid almost to a fault.The article reads like the last salvo of an intel-
lectual movement that knows itself to be in terminal decline. Yet it has since
become a founding text of an in£uential style of public law thinking.The de¢n-
ing characteristic of this ‘political constitutionalist’ approach is, Dyzenhaus says,
the belief in‘areturn to a Benthamite conception ofdemocracy in a bid to reinvi-
gorate parliamentary politics’.
4
n
London School of Economics and Political Science. I would like to thank The
Łre
'se Murphy for her
comments on an earlier draft.
1 J.A.G. Gri⁄th, reviewing PoeticJustic e (London: Stevens & Sons, 1947) by ‘J.P.C.’, illustrated by
Leslie Stark (1948) 11MLR 374.The e ntirereview, with characteristic £air,is written in doggerel
rhyme.
2 J. A. G. Gri⁄th,‘The PoliticalCo nstitution’ (1979) 42 MLR 1.
3 ‘Political Constitution’,above n 2,16.
4 D. Dyzenhaus,‘The Left and the Question of Law’ (2004) 17 Canadian Journal of Law andJuris-
prudence7. See also Dyzenhaus,The Constitu tion of Law:L egalityi n aTimeof Em ergency(Cambridge:
Cambridge University Press, 200 6), 123: Gri⁄th-led fu nctionalists ‘espouse a kind of leftwing
Benthamism, a political positivismwhich regards law as the necessary instrument for conveying
judgments aboutcol lectivewelfare to the o⁄cials who will have to implement those judgments.’
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(2) MLR250^277
The ¢rst section of the article examines ‘The Political Constitution’. An inves-
tigation i nto the most‘ideas-rich’piece within the oeuvre of one of Britain’s most
distinctive twentieth-century constitutional lawyers is valuable in itself. But the
examination is intended to act as aprism into Gri⁄th’s thought, revealing a more
complex and pessimistic thinker than that suggested by the standard image of
the Benthamite radical. The article then assesses the cogency of Gri⁄th’s idea of
the political constitution against constitutional realities, paying particular atten-
tion to his thesis that a jurisprudence of rights must lead to the corruption of law
and politics. The article concludes with general comments on Gri⁄th’s brand of
constitutional scholarship.
‘THE POLITICAL CONSTITUTION’AS POLEMIC
Gri⁄th wrote ‘The Political Constitution’ at a time where British society was, as
he put it, ‘in a highly combustible condition’.
5
Being written with a real
conviction that borders on a sense of mission, the article itself is emblematic
of that society. It resonates with the belief that radical things are about to
happen, that we are perched on the verge of fundamental change, the precise
directionof which is still in doubt, and he nce still worth ¢ghting for.I n addition,
though wrapped in pragmatists’ clothes, the article is infused with a belief
inthetransformativepowerofargument. It re£ects a brand of scholarship
that is today almost alien: the argument is vibrant, passionate and intense,
with the author wielding both cudgel and rapier in his e¡orts to repel various
enemies.
The article is apolemic which aims attwo particulartargets.The ¢rst is a group
of conservatives and liberals, mainly fromthe Bench, whose responseto the dark
days of the mid-1970s was to advance a programme of sweeping constitutional
change. Or, as Gri⁄th put it in a passage that drips with Swiftian venom: ‘We
have therefore a considerable number of proposals for radical constitutional
change being advanced by a number of rather improbable people. I do not mean
that as people they are improbable. But as radicals.’
6
Lord Scarman, darling of
liberal multiculturalists,
7
gets a brief mention, but it is the Tory grandee Lord
Hailsham who comes in for the full treatment. Hailsham’s bookThe Dilemma of
Democracy had just been published.The book called for limited government over
what its author called, in a phrase which far outlived the book,‘elective dictator-
ship’.
8
The constitutional package favoured by Hailsham included all the usual
suspects: a Bill of Rights, an elected second chamber, legal limits on Parliament’s
right to legislate, and devolution to Scotland,Wales, Northern Ireland and the
English regions.
9
5 ‘Political Constitution’,above n 2, 2.
6ibid 12.
7See,eg,hisdissentinAhmad vInner London Education Authority (1977) 1 QB 36. See also, eg,
S. Caney, ‘EqualTreatment, Exceptions and Cultural Diversity’ in P. Kelly (ed.), Multiculturalism
Reconsid ered (Cambridge: Polity, 2002),86^87.
8Q.Hogg,The Dilemma of Democracy: Diagnosisand Prescription(London: Collins, 1978).
9 ‘Political Constitution’, above n 2, 8. Gr i⁄th laterderided Hail sham’s failure to put theory into
practice as Lord Chancellor under Margaret: see J.A.G. Gri⁄th, Public Rightsand Private Interests
Thomas Poole
251
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(2)MLR 250^277
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