TINKERING WITH THE CONSTITUTION

AuthorMartin Loughlin
DOIhttp://doi.org/10.1111/j.1468-2230.1988.tb01771.x
Publication Date01 Jul 1988
REVIEW ARTICLE
TINKERING WITH THE CONSTITUTION
THE
NOBLE LIE.
THE
BRITISH CONSTITUTION
AND
THE
RULE
OF
LAW.
By
IAN
HARDEN
and NORMAN LEWIS. [London: Hutchinson,
1986.
xxiii
+
334
pp. Hardback:
&25.00.]
I
LAWYERS in Britain have never produced scholarship in public law
to rival the breadth or theoretical sophistication of our European
or American colleagues. By comparison with (to take a selection of
contemporary examples) the work of Ackerman in the United
States,’ Bobbio in Italy,* Luhmann in Germany3 and Poulantzas in
France: recent attempts by British public lawyers “to stimulate an
awareness of issues, problems and ways of analysing and
approaching them in the broad field of law, state and g~vernment”~
seem largely a matter of peeking over the disciplinary parapet.
Against the background of this type of European-American writing
the critical test for evaluating those who aim to contextualise the
study of public law is whether they are able to tell us something,
not only about the character of law, but also about the nature of
modern society.
From this perspective, Harden and Lewis’s
The
Noble
Lie
is of
particular interest since it is the most ambitious and broad-ranging
attempt of British public lawyers to engage with theoretical and
practical matters
of
modern government. At a practical level the
book examines the fragmented, informal, pragmatic and secretive
nature of British government and explores the possibility of utilising
American experience to try to make our system an open, integrated,
principled and formal one. At the theoretical level it attempts to
provide “a new descriptive and analytical model
of
constitutionally
legitimate action in Britain” (p.7). The authors seek to achieve this
primarily by reworking the notion of the rule of law, showing it to
be a “transcendent concept” and establishing it as a “master ideal,”
and then showing how “the gap between the master ideals and
current political and constitutional practice can be bridged” (p.
13).
This reconciliation is to be achieved by exposing “a number of
contradictions involved in the various strands of traditional
B.
Ackerman,
Private Property and the Constitution (1977); Social Justice in the
N.
Bobbio,
The Future of Democracy.
A
Defence of the Rules of the Game (1987);
N. Luhmann,
The Differentiation of Society (1982);
A
Sociological Theory of Law
N.
Poulantzas,
Political Power and Social Classes (1973); State, Power, Socialism
P.
McAuslan
&
J.
F.
McEldowney (eds.)
Law, Legitimacy and the Constitution
Liberal State (1980); Reconstructing American Law (1984).
Which Socialism?: Marxism, Socialism and Democracy (1987).
(1985).
(1978).
(1985)
p.v.
531
532
THE MODERN LAW REVIEW
[Vol. 51
constitutional theory” (p.9)
so
as to demonstrate that “the claim to
be a nation living under law cannot be rationally sustained” (p.11)
and then to outline a “programme of institution-building for
the construction of rational discourse, for the construction of
constitutional openness and accountability” (p. 13).
We are aided in our evaluation of this undoubtedly ambitious
project by some preliminary remarks
of
Sir Douglas Wass, who
views
The
Noble Lie
as “an important and exciting book
. .
.
about
the interface between law and politics, about the legitimacy of
political authority and about the adequacy of the component parts
of our constitution to safeguard the citizen.” It is, Wass continues,
a book which “will certainly offend, or at least disturb, many
lawyers” (p.ix). On this last point
I
think it will succeed, although
not for the reasons Wass had in mind. My particular concerns are
not
so
much directed to Harden and Lewis’s interpretation of the
way in which political power is exercised in Britain today. What
troubles me
is
the account of constitutional history, the analysis of
contemporary governmental arrangements and the justifications for
the proposed solutions which they present. Indeed, since they
choose as the epigraph to
The Noble
Lie
a quotation from Martin
Hollis to the effect that the task of creating a Good Society is one
for tailors and not tinkers,
I
feel impelled to conclude that this
work must be viewed as an exercise in tinkering with the
constitution.
I1
Harden and Lewis’s analysis of the constitution is critical of
orthodox approaches. They reject what they consider to be the
unfounded objectivism of Dicey but also hope to avoid the apparent
subjectivism of Jennings. They intend to do this by utilising the
idea of “immanent critique.” Immanent critique, we are told,
confronts “the existent, in its historical context, with the claim of
its conceptual principles, in order to criticise the relation between
the two and thus transcend them.”6 Utilising this method they
argue that any description of the constitution needs some kind of
analytical framework; that such frameworks are the subject
of
theoretical controversy; but that, although moral, political and
practical concerns must be addressed in devising a framework, the
exercise is also an engagement in social scientific activity.
My criticism is not with the nature of this method but rather
with the rigour and sophistication with which it is used. It is clear
that the main challenge that is being presented to the orthodoxies
of Dicey and Jennings concerns the positivism and empiricism that
underpins both their accounts. It is surprising, however, that
Harden and Lewis fail both to root their views in post-empiricist
political theory and to explicate fully the notion of immanent
p.10,
quoting
M.
Horkheimer,
Eclipse of
Reason
(1974).

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