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REVIEW ARTICLES
Is Public Law Ordinary?
Mark D. Walters*
Martin Loughlin, Foundations of Public Law, Oxford: Oxford University Press,
2010, 528 pp, hb £65.00.
INTRODUCTION
Is public law ordinary? That is, is the law that serves as the foundation of the state
and its laws part of ordinary law and ordinary legal discourse? Or, is public law
extraordinary? Is public law, precisely because it is the foundation of the state and
its laws, a law that exists within a sphere separate from ordinary law? There may
be some intuitive appeal to the claim that public law cannot set ordinary law in
motion and constitute part of that law at the same time. But if public law,
understood in this sense, is extraordinary, is it really law at all? Perhaps it is just a
form of political morality or a social fact – a principle of statecraft or a custom
followed by officials. Of course, it might still be thought that these foundational
norms or facts must have some legal aspect, at least from the perspective of those
people who accept their authority. But, if so, how extraordinary can that legal
aspect really be? Can the fundamental law of the state be wholly excluded from
ordinary law? Can ordinary legal discourse be stopped at the border of public
law? Are we not back at the proposition that public law, if it really is law, must
count, in some way at least, as ordinary?
Jurists within the common law tradition have long assumed that their
answers to these questions are different from those given by the civilian jurists
of continental Europe.When told that certain French decrees imposing a maritime blockade against Britain were based on ‘fundamental laws’, the renowned
judge of the High Court of Admiralty, Sir William Scott, observed that this
expression could not be defined with precision, though he acknowledged that
by ‘writers on public law, Grotius, Pufendorf, and others’, fundamental laws
were usually taken to mean laws ‘so deeply interwoven in the political constitution of the state’ as to be ‘above the power of legislation’ – a possibility that
Scott said ‘could not well be intended here’.1 For Scott, as for many English
lawyers and judges before and after him, the expressions ‘public law’,‘the political constitution’, and ‘the state’, taken together, evoked a distinctively continental style of jurisprudence.
*Faculty of Law, Queen’s University.
1 The ‘Snipe’ (1812) Edwards 381, 385.
© 2012 The Author.The Modern Law Review © 2012 The Modern Law Review Limited.
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Mark D. Walters
As a civilian, Scott would have been familiar with the continental ‘writers on
public law’ to whom he referred.2 Yet his comments suggest that he shared the
common lawyer’s antipathy toward the idea that executive decrees might be
authorised by a ‘public law’ or ‘political constitution of the state’ that lay beyond
the range of ordinary legislative and judicial processes.That antipathy is evident
in the classic statements of British constitutionalism. It is evident, for example, in
the curt response given by Lord Camden in Entick v Carrington to the argument
that there is a separate ‘law of state’ immunising governmental actors from
ordinary legal challenge: ‘the common law’, he said, ‘does not understand that
kind of reasoning’.3 It is evident too in A.V. Dicey’s assertion, made in Law of the
Constitution, that in Britain ‘the constitution is the result of the ordinary law of
the land’.4 Indeed, in the course of writing that book, Dicey acknowledged
privately that he had been struck by ‘the essential difference’ between continental and English approaches to the constitution, observing that in France ‘they
seem to me to start from the notion of the state’ whereas in England ‘we start
from the rights of the individual & hardly recognise the state or Crown as having
rights of its own.’5 This is not to say that common lawyers have ignored the
political dimensions of constitutionalism. Dicey pointed to the way that conventions shape law’s practical meaning and how the legal sovereign, Parliament,
is ultimately controlled by the political sovereign, the people. But he also insisted
that constitutional conventions are ‘not in reality laws’ and the sovereignty of the
people is ‘a political, not a legal fact’.6 Within the common law tradition, then,
the idea of the state is not privileged, and the foundations of political order are
thought to fall within the realm of ordinary law or outside the realm of law
altogether. There is no middle legal ground between ordinary law and politics,
no extraordinary legal domain where a special public law of state might
be found.
Martin Loughlin has long argued that this common law understanding of
public law is wrong. In his 2003 book, The Idea of Public Law, Loughlin sketched
what he called the ‘pure theory of public law’, according to which public law is
understood to be ‘an autonomous subject operating in accordance with its own
distinctive method.’7 In his recent book, Foundations of Public Law, Loughlin
locates the pure theory of public law within its historical intellectual context.The
result is a restatement of the continental public law tradition on a grand scale. For
English jurists like Scott the ‘writers on public law, Grotius, Puffendorff, and
others’ were foreigners to be kept at a respectful distance; for Loughlin, however,
they are more like cousins to be embraced after a long period of separation. From
the works of Bodin, Spinoza, Rousseau, Lipsius, Fichte, Hegel and others –
Grotius and Pufendorf included – Loughlin reconstructs an account of public law
2 See in general H. J. Bourguignon, Sir William Scott, Lord Stowell: Judge of the High Court of Admiralty,
1798–1828 (Cambridge: CUP, 1987) 37–38.
3 Entick v Carrington (1765) 19 St Tr 1029, 1073.
4 A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 8th ed, 1915)
199.
5 Quoted in M. D. Walters,‘Dicey on Writing the Law of the Constitution’ (2012) 32 OJLS 21, 29.
6 Dicey, n 4 above, 199, 23, 71.
7 M. Loughlin, The Idea of Public Law (Oxford: OUP, 2003) 153.
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very different from the one associated with the common law. In this account,
public law is not ordinary. But it is law. It is an autonomous form of political
jurisprudence, immanent within the modern state, manifesting principles of
right-ordering through the prudential exercise of sovereign power by political
actors. Loughlin insists that although public law now exists in all modern states,
it is best understood through examining its emergence within European legal
discourse. But Loughlin also argues that this discourse was not entirely continental in its origins; it was shaped, he says, by English ideas about fundamental
law during its formative period in the seventeenth century. In his view, the
common law understanding of public law as ordinary was a wrong turn taken
after that time, and to understand public law properly today common lawyers
must therefore ‘re-connect with the mainstream of the European tradition of
public law’ (6). At this point, no doubt, Scott, Camden and Dicey are turning in
their graves.
Foundations of Public Law is a monumental achievement in legal scholarship. Its
learning stretches across an almost breathtaking range of jurists, countries and
centuries. In this essay, I cannot hope to do justice to all of this learning. My aim
will therefore be modest. As my initial comments suggest, I intend to examine
Loughlin’s approach to public law through exploring his arguments about public
law in the common law tradition. Given that Loughlin invites common lawyers
to look beyond their insular assumptions about law to consider continental
sources, my strategy may seem, at first glance, narrow and parochial. However, one
of Loughlin’s stated aims is to show how English legal discourse was integrated
within the body of ideas about European public law that emerged in the
seventeenth century, and why common lawyers should now reconnect with that
body of ideas. In making this claim, Loughlin is deeply critical of common law
jurists who have ‘lost the thread that leads us back through the labyrinth of
modern history’ and who wrongly conclude that the common law tradition
embraced the idea that public law is ordinary (2–3, 6). Loughlin’s bold claims on
this point are central to his project, and they deserve to be examined carefully.
After providing an overview of Loughlin’s general argument, I will therefore
assess critically his treatment of public law in the common law tradition by
examining his interpretation of seventeenth-century English legal discourse.The
purpose of this examination is not merely to quibble about a contested point of
legal history, but to use that history as a vehicle for understanding better the
contours of the theoretical debate about public law that Loughlin initiates.
Loughlin invites us to return to the English fundamental law discourse of the
seventeenth century for good reason.The texts on foundational legal principles
from that time still provide for us today a site for critical reflection about the
values associated with legality and constitutionalism – they provide, if only
implicitly, the foundation for an exegesis of constitutional principle that is still
unfolding within common law jurisdictions. Like Loughlin, I think that from this
corner of common law history valuable insights may be derived that help us
to construct a defensible account of public law today. Contrary to Loughlin,
however, I will argue that these insights help us to see why public law, at least in
common law jurisdictions, must be thoroughly ordinary in its jurisprudential
character.
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In his book, Loughlin invokes architectural metaphors, referring to the
‘architecture of power’ and the ‘edifice’ of state, though he insists that the
edifice is, in fact, a ramshackle one built by successive inhabitants more interested in a sturdy home than principles of aesthetic design (98–102). But as I
read Loughlin’s book, grander images came to mind. Foundations of Public Law
is a magisterial essay on the majesty of state sovereignty – and it suggested to
me the image of the ‘mighty Ship of State’ sailing on, in Leonard Cohen’s
reworking of Longfellow’s poem, ‘To the Shores of Need/Past the Reefs of
Greed/Through the Squalls of Hate’.8 We might say that Loughlin has produced an epic narrative on the mightiness of the Ship of State, and how the
mightiness of this Ship depends upon the rightness of both its keel and its
course. True, Loughlin would not say the Ship of State is unsinkable; indeed,
in the closing passages of Foundations of Public Law, he laments the fact that the
pragmatic politics made possible by the state may now be threatened by ‘the
return of the religious’ and the ‘overarching claims of the right and the true’
(465). But this lamentation only reinforces the sense of grandeur attributed to
the modern state – and thus only reinforces, for me at least, a sense of unease
about the book. In fact, I was initially reminded of the Ship metaphor when
reading Foundations of Public Law because of the ironic tone of Cohen’s use of
the metaphor – an irony born of the tremendous promise and the spectacular
failures of the modern state in the twentieth century.The theory of public law
must, of course, account for the modern state, but the extent to which it
should be bound fast to the Ship of State is, I think, another question.
LOUGHLIN ON THE EUROPEAN STATE AND PUBLIC LAW
Foundations of Public Law is about the history of an idea – the European idea
of public law. After an introduction to the medieval origins of the state (Part
I), the analysis takes on a circular rather than linear trajectory: the essence of
public law is articulated (Part II) and then re-articulated from the conceptual
perspectives of the ‘State’ (Part III), ‘Constitution’ (Part IV) and ‘Government’
(Part V). With each reiteration, Loughlin’s idea of public law becomes richer
and more complex, and the historical ordering of his sources matters less and
less. But the book is not really a work in political or legal history as such.
Foundations of Public Law is best read as a work in legal theory that exhibits
some of the qualities of what used to be called ‘historical jurisprudence’ – a
jurisprudential style, not often seen in English legal literature nowadays, in
which legal concepts are explicated through the examination of law’s historical
and social evolution.9 Read in this way, Foundations of Public Law is a truly
masterful work.
8 Leonard Cohen, ‘Democracy’ in L. Cohen, Stranger Music: Selected Poems and Songs (Toronto:
McClelland & Stewart, 1993) 367–369. cf HenryWadsworth Longfellow,‘The Building of the Ship’
in Poems by HenryWadsworth Longfellow (Boston:Ticknor and Fields, 1863) 307–314 (‘Thou, too, sail
on, O Ship of State!/Sail on, O Union, strong and great!/Humanity with all its fears,/With all the
hopes of future years,/Is hanging breathless on thy fate!’).
9 P. Stein, Legal Evolution:The Story of an Idea (Cambridge: CUP, 1980).
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The evolutionary story that Loughlin tells concerns the emergence of the
modern state in Europe, and the point of this story is to identify the distinctive
idea of public law that emerged with the state.‘The concept of the state,’ Loughlin
writes, ‘is nothing less than the sine qua non of public law’ (183). Public law
acquires its identity ‘from the modern concept of sovereignty’ and thus from ‘the
prudential logic that binds together the political entity of the state’ (86); ‘reason
of state’ thus supplies ‘the underlying logic of modern public law’ (87). In
Loughlin’s account, the transition of the European state from medieval to
modern form gave rise to a paradox that could not have arisen before. The
assertion of sovereignty by the people whose association forms the modern state
implies an association that is ‘not only the sole source of law but also itself . . . a
creature of law’ (111). But Loughlin insists that the paradox of law’s creator being
also law’s creature quickly dissolves once we separate law into two kinds: law that
is constitutive of the state and law that is constituted by the state.The law that is
constituted by the state he calls ‘positive law’,‘civil law’, or ‘ordinary law’ (1).The
law that is constitutive of the state he calls ‘political right’,‘political reason’,‘droit
politique’, ‘Staatsrecht’ or ‘public law’ (1, 8, 209).
Loughlin’s evolutionary tale is one of both continuity and change. Public law
emerged with the modern state out of pre-modern understandings of constitutive and constituted law.Within the medieval state, constitutive law – or ‘fundamental law’ – was derived from the law of nature imposed upon kings by an
external authority, God, and so the paradox of law’s creature being also its creator
could not arise.When Bracton wrote in his thirteenth-century tract on English
law, Rex non esse sub hominum sed Deo et lege, he meant, Loughlin says, not that the
King was under the ordinary laws of England, but that he was under the law of
God and nature, or, in other words, a fundamental law having no earthly tribunal
(1). The idea that the law constitutive of states and governments was a fundamental law separate from the ordinary laws constituted by states and governments
was, he says, deeply embedded within the European legal tradition. And English
legal thought was very much part of that tradition.
As the modern state emerged from its pre-modern origins, public law
emerged from the idea of fundamental law.As people came to be seen not just as
subjects of the king but as forming an association or commonwealth with plenary
powers of self-government or sovereignty free from external religious authority,
and as questions about transcendent truth came increasingly to be seen as matters
of individual conscience rather than points of royal dictation, politics in the
modern sense became possible: an autonomous public sphere separate from the
private and spiritual worlds emerged, dominated by the uniquely political challenge of reconciling the equal freedom of individuals to seek truth in their own
way with their association within a peaceful state. ‘Public law is thus formed in
the modern world,’ writes Loughlin, ‘as the code of this emerging autonomous
political sphere’ (8). But how?
Politics in the public sphere is prudential and contingent. Following
Oakeshott, Loughlin says it involves a tension between two irreconcilable
conceptions of association: societas, a contract-like association to achieve certain
common objectives while leaving individuals free to pursue other objectives of
their own, and universitas, a more holistic association within which individual
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interests shape and are shaped by the general interest or general will (160–161).
Governance is a process of mediating between these two conceptions of
association and the different approaches to individual and community they
represent. Immanent within this process are the principles of right-ordering
that constitute public law. No longer is sovereignty a gift from God to be used
according to an external fundamental law. Instead, sovereignty is generated
from within the body politic itself, and the requirement of public law, that
sovereign power be used to further the general interest of the state, or the salus
populi, consistently with the equal freedom of its members, is generated with it
– a dynamic mix of political morality and prudential statecraft that produces
sovereign power by limiting sovereign power. ‘The discourse of political right,’
Loughlin writes, ‘is simultaneously enabling and constraining’ (12); it generates
absolute sovereign power by generating liberty, for power and liberty are ‘two
sides of the same coin’ (177). As European society moved from medieval kingdoms to modern states, the understanding of constitutive law thus shifted from
that of a fundamental law that was divine and transcendent to that of a public
law that is political and immanent.
The distinction between constitutive and constituted law solves one paradox
but creates another.The source of constituted or ordinary law is the state, but how
can a law constitutive of the state exist through prudential political action unless
a legal and institutional framework for politics is already in place?The answer, says
Loughlin, is found by distinguishing between the constitution of the people as a
body politic or state and the constitution of the government of the state, and by
viewing the relationship between these two constitutions not as causal but
reflexive (227, 232).Absolute sovereignty lies with the body politic, and that body
politic may constitute institutions of government as it sees fit; however, the
resulting constitution of government is not, like other forms of constituted law,
ordinary. The relationship between state and government is, Loughlin argues,
reflexive: only by the prudential exercise of political power through institutions of
government created by the state is the state’s sovereignty and identity manifested.
The discourse of political right emerges from the ‘dialectical process’ that exists
between potestas, the institutionalised authority of rule, and potentia, the exercise
of actual governmental power (12).
It follows, then, that both the constitution of the state and the constitution of
government for the state are properly seen as falling within the autonomous
domain of public law. Only with the assertion by ordinary courts of authority
over constitutional law – a process illustrated most clearly by the American
experience beginning in the nineteenth century – have constitutions of government been, in effect, positivised, a regrettable turn that obscures and undermines
the autonomous discourse of political right (297). Public law, in its proper sense,
is self-enforcing: the salus populi and thus the absolute sovereignty of the state
depend upon the extent to which political actors respect the principles of
right-ordering inherent within the project of state governance.The rule of law
forms no part of this conception of public law, not because it cannot be judicially
enforced, but because it is ‘entirely unworkable in practice’ so long as the political
sphere is defined by the dialectical tension between competing visions of what
human association and individual liberty mean (314). For Loughlin, the health of
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the body politic depends upon the flourishing of a discourse of political right free
from the interference of ordinary legal discourse.
The argument in Foundations of Public Law is presented as historical and
analytical, but its reformative potential for common law jurisdictions is profound.
By treating foundational political ideas and practices as a special form of law,
Loughlin seeks to bring into clear relief the normative structure of the political
discourse that animates the modern state, and thus to shine a jurisprudential light
onto the normative world behind ordinary law that legal positivists have abandoned to politics and morality. But this is not his only objective. Once we
acknowledge that there is a domain of foundational public law from which
ordinary law is excluded, then, in Loughlin’s view, not only will we be forced to
reconsider the essence of what we had previously treated as ordinary public law
(for example, we will no longer be able to claim that parliamentary sovereignty
is a common law doctrine), but we will also be forced to re-think the scope of
ordinary public law (so that, for example, certain governmental powers will now
be treated as part of a law of state beyond the reach of ordinary law), and
consequently our understanding of the entire jurisprudential landscape will be
thoroughly reoriented.
Just how revolutionary this reorientation in legal thought will be is unclear
from Loughlin’s analysis. Much of the book seems premised upon the idea that
the constitution and conduct of government is, or should be, a matter for
extraordinary public law, leaving ordinary law to govern private or civil relations between individuals. But on occasion Loughlin seems to depart from this
basic argument without explanation. He cites British cases that affirm fundamental points of public law, like parliamentary sovereignty (270), without
acknowledging that such cases illustrate how public law must be implicated
within ordinary law to some degree at least. He is critical of judges who
enforce constitutional law against legislatures, but he accepts that judges need
not ‘close their eyes’ to constitutional law altogether (289–29010), without
acknowledging that it is largely because judges in the common law tradition
keep their eyes open to constitutional principles when constructing statutes
and statutory powers – that British judges, for example, read statutes on the
assumption that Parliament legislates for ‘a European liberal democracy’11 – that
it is possible to say that public law is ordinary. Taking Loughlin’s argument as
a whole, however, it is clear that he regards the exclusive domain of public law
as substantial. ‘The boundaries of public law,’ he writes, ‘must be determined by
whatever is felt necessary to hold humans together as a self-defined collective
unit’ (88). And it is also clear that his boundary line has profound implications.
Within the exclusive domain of political right, law emerges not through
the familiar interpretive discourse ordinarily manifested in the arguments of
lawyers and the reasons of judges, but through the dynamics of political action
as governments negotiate between different visions of human association – an
approach to law that, as Loughlin himself concedes, renders the rule of law an
‘impossible dream’ (375).
10 Responding here to Marbury v Madison 5 US (1 Cr) 137 (1803), 177–178 (Marshall CJ).
11 R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539, 575 (Lord Steyn).
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FUNDAMENTAL LAW AND THE COMMON LAW TRADITION
In his reconstruction of the continental public law tradition, Loughlin finds
historical support in an unlikely place: seventeenth-century England. Loughlin
says the idea of public law emerged through a common European discourse
and claims of English or later British exceptionalism are misplaced (2–3). He
insists that ideas of fundamental law in seventeenth-century England, as illustrated by, for example, the Bill of Rights, 1689, were crucial for the development of European public law (2–4). It is thus possible (he seems to say) to read
the famous English constitutional documents from the seventeenth century as
if they contain an implicit clause along the following lines: ‘The fundamental
laws herein mentioned do not form part of the ordinary laws of England, but
rather guide the exercise of political judgment for the common good of the
people or salus populi.’ Setting the record straight on this point is important for
Loughlin. He is deeply critical of jurists today who, in an attempt to ‘rejuvenate’ the concept of fundamental law, make the error of assuming that
fundamental law was, and can still be, ‘equated with the (ordinary) common
law’ – an error that obscures the ‘distinctive nature of public law’ and may
lead to ‘judicial supremacism’ (5–6).
A full understanding of Loughlin’s arguments in Foundations of Public Law
requires that we take seriously his claims concerning English legal discourse. I will
therefore examine the leading seventeenth-century cases upon which he relies –
not simply in order to articulate a different interpretation of legal history, but to
engage, in the spirit of historical jurisprudence that underlies Loughlin’s work, in
the elaboration of history with an eye on its jurisprudential lessons for today. By
returning to the old cases, we may grasp more accurately the central tenets of
Loughlin’s theory of public law, and we may also find the ingredients for an
alternative to that theory.
Loughlin’s argument, to reiterate, is that jurists today who turn to
seventeenth-century English legal discourse to find support for the ordinariness
of public law commit an error.The argument on this point is at times difficult
to follow. What kind of mistake do we make today if we point to the ways in
which public law was ordinary in the past? We would be remiss if we did not
include Sir Edward Coke as one representative of the ‘common law mind’ of
the seventeenth century12 – and yet the ordinariness of public law almost leaps
from the pages his Reports and Institutes. We find, for example, in his report of
the Case of Alton Woods, that judges, in the course of examining whether the
King’s prerogative power to grant land could be used to defeat existing legal
rights, acknowledged the constitutional aspect of the question, and they
observed that ‘the King hath the charge of the commonwealth’ and ‘the grants
which he makes, he makes as King’ and not as a matter of his ‘private businesses’; however, they also concluded that this was reason for rather than against
applying ordinary law in the case before them because ‘the King cannot do
wrong, nor would his prerogative warrant him to do an injury to another’ and
12 J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in
the Seventeenth Century (Cambridge: CUP, reissue, 1987) 30–32.
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therefore grants violating legal rights were ‘void by reason of the common law’
and not to be saved by equitable ‘construction’.13 Property rights were often
characterised as fundamental during this time, but their legal protection from
the King appeared distinctly ordinary.
We may then turn, for another example, to Coke’s report of Calvin’s Case,
which held that the bond between sovereign and subject arose by the law of
nature and therefore the Scottish-born subjects of the King were not aliens
barred from inheriting lands in England.14 In his report, Coke explained that
‘government’ is ‘necessary and profitable for the preservation of the society of
man’ and so it is ‘due by the law of nature’, and therefore the allegiance of the
subject to ‘the Sovereign’ must, like government itself, have existed ‘before any
municipal or judicial laws’, for it would have been ‘vain to have prescribed laws’
to people who were not already ‘bound to obey and observe them’.15 These
points lay at the heart of public law in Loughlin’s sense – Coke acknowledged the
juristic implications of the constitution of the state (‘society’) and the constitution
of government (‘the Sovereign’), and he distinguished between fundamental law
(‘law of nature’) constitutive of state and government and ordinary law (‘municipal law’) constituted by the state and government – but these points were applied
by judges in a case decided according to the ‘ordinary course and order of the
law’ in the Exchequer Chamber because they regarded them as ‘part’ and ‘parcel’
of the laws of England.16 No wonder Dicey cites Calvin’s Case for the idea that
public law is ordinary.17
The ordinariness of fundamental law was evident elsewhere in Coke’s writings. Bracton may have intended to invoke an extraordinary fundamental or
natural law when he said that the King was under God and law, as Loughlin
argues, but Coke famously quoted Bracton in arguing that the law that bound
the King was not just ‘natural reason’ but the ‘artificial reason’ of the laws of
England.18 Coke did not always use the expression ‘fundamental law’ when
making these points – but sometimes he did. Indeed, his assertion that Magna
Carta is ‘the fountaine of all the fundamentall lawes of the realme’ and is ‘but a
confirmation or restitution of the common law’ was typical of an entire line of
legal thought.19
In the end, however, we could multiply our references to such statements
tenfold and I suspect Loughlin would remain unmoved. Loughlin alludes to
the fact that Coke and other common lawyers invoked fundamental law in the
service of liberty against lawyers who invoked it in the service of the King’s
prerogative (61), but his concern is to reinterpret the constitutional character of
the contest itself rather than to examine the arguments on each side. His point
seems to be that the seventeenth-century struggle between common law and
13
14
15
16
17
18
19
(1600) 1 Co Rep 40b, 52a, 44b, 50a, 53a.
(1608) 7 Co Rep 1.
ibid, 13a.
ibid, 2a, 12b, 14b.
Dicey, n 4 above, 191 (fn 2).
Prohibitions del Roy (1607) 12 Co Rep 63, 65.
1 Co Inst 81a. See in general J.W. Gough, Fundamental Law in English Constitutional History (Oxford:
Clarendon Press, 1955).
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prerogative produced the kind of dialectical tension out of which public law
(in his sense) emerges. The competing arguments must be seen in light of the
‘accommodation’ that they produced – which was the uneasy ‘political achievement’ represented by the King as dominium politicum et regale, a politic monarch
under law and a regal monarch above law (39, 45). The King, in his two
bodies, represented the irreconcilable visions associated with societas and potestas
on the one hand and universitas and potentia on the other that lie at the heart
of public law. Loughlin thus places particular weight on cases like Bates’ Case20
and Darnel’s Case21 that acknowledged both the King’s ordinary prerogatives
that were subject to law and his absolute prerogatives that were not (378–380).
Once the double aspect of the King and his prerogative is understood, says
Loughlin, we can appreciate that the constitutional conflicts of the seventeenth
century were not really about whether royal power was absolute, but rather
they were arguments about where to draw the boundary between ordinary and
absolute power (380) – or, in other words, between ordinary law and extraordinary law. Now we can see the error of jurists today: by turning to the
seventeenth century for support for the view that public law is ordinary, they
mistakenly think that the competing conceptions of prerogative power during
that time represent alternative theories from which they may make a selection,
when in fact these conceptions formed different (though dialectically opposed)
aspects of a single account of public law that cannot be pulled apart. In this
way, Loughlin deftly elevates his conception of public law above the fray of
competing conceptions of law in the seventeenth century so that his understanding of public law absorbs and neutralises those conceptions of law inconsistent with his own.
There is, however, a problem with this approach. Unless the argument is meant
to be external and sociological in perspective – using these terms as H. L.A. Hart
used them – then it must at some level fit the internal legal perspectives of those
historical actors whose ideas we are examining.22 A brief look at Bates’ Case and
Darnel’s Case raises doubts in this respect. The description of the absolute
prerogative in Bates’ Case – Chief Baron Sir Thomas Fleming said it empowered
the King to make decisions on ‘matter[s] of state’ for the ‘salus populi’ according
to ideas of ‘Pollicy and Government’ outside the cognisance of ‘ordinary courts’23
– aligns nicely with Loughlin’s account of public law. But Fleming CB also stated
that the customs duty challenged in that case was an exercise of the royal
prerogative over foreign affairs and it was unnecessary to consider broader claims
made on behalf of the prerogative.24 Although the foreign-relations argument
was, on the facts, dubious, it could be said that, on one reading of the case, the
King’s exercise of the absolute prerogative was upheld because it fell within a
sphere set for it by ordinary law.25
20
21
22
23
24
25
Bates’ Case or Case of Impositions (1606) 2 St Tr 371.
Darnel’s Case or Case of the Five Knights (1627) 3 St Tr 1.
H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 2nd ed, 1994) vi.
Bates’ Case n 20 above, 389.
ibid, 389, 390.
G. Burgess, Absolute Monarchy and The Stuart Constitution (New Haven and London:Yale UP, 1996)
80–85.
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Darnel’s Case looks very different.26 The case arose after five knights were
imprisoned without charge or trial for refusing to make loans to the King.Writs
of habeas corpus were issued and before the King’s Bench it was stated that the
knights were held per special mandatum domini Regis and no cause for their
imprisonment was given – a result that was, according to counsel for one of the
knights, contrary to Magna Carta and ‘the fundamental laws and statutes of this
realm’.27 In response, the Attorney General, Sir Robert Heath, argued that when
subjects are detained according to law, cause must be shown, but when imprisonment is ‘not in a legal and ordinary way’ but ‘extraordinarily done’ for ‘reason
of state’, cause need not be shown.28 Heath insisted that the King’s ‘absoluta
potestas’ in this respect was integral to sovereignty, vesting when ‘the first stone of
sovereignty was . . . laid’, and although the King ‘hath rules to govern himself by’
and must act as ‘the head of the common wealth’ rather than as a ‘private person’
when using this absolute power, compliance with these rules was not a question
into which ‘we . . . as lawyers, who govern themselves by the rules of the law . . .
[may] make inquiries’.29 Here is another powerful statement in favour of Loughlin’s theory of public law – and this time the refusal by the judges to release the
knights gave the impression that they accepted it.
In Bates’ Case, then, the exercise of the absolute prerogative was lawful because
it fell within a sphere of activity, foreign relations, accepted by ordinary law as one
where political discretion reigned. In Darnel’s Case, in contrast, the ability to
invoke the absolute prerogative seemed to be recognised for no other reason than
the fact that the King claimed it. The difference between the two cases is, as a
matter of legal theory, profound.The implications of Darnel’s Case were immediately apparent, and concerns were expressed that the case, although only an
interim order, might be cited as precedent in future cases.30 Parliamentarians met
in conference to argue the legal points raised by the judges’ order.31 Coke, then
a member of Parliament and not a judge, insisted that although the prerogative is
‘highly tendered and respected . . . it hath bounds set unto it by the laws of
England’, for ‘the common law has admeasured the king’s prerogative’ – and
Coke added that if he had previously been ‘of another mind’ about this issue it
was because he had been ‘deceived’ by false authorities.32
Attorney General Heath and Sir Francis Ashley attended the parliamentary
conference to argue the King’s position. Ashley submitted that lex terræ in
26 G. Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–
1642 (University Park, PA: Pennsylvania State University Press, 1992) 191–193.
27 Darnel’s Case n 21 above, 8, 10.
28 ibid, 35, 45.
29 ibid, 37, 44.
30 J.A. Guy,‘The Origins of the Petition of Right Reconsidered’ (1982) 25 Hist J 289; M. Kishlansky,
‘Tyranny Denied: Charles I, Attorney General Heath and the Five Knights’ Case’ (1999) 42 Hist J
53.
31 ‘Proceedings in Parliament Relating to the Liberty of the Subject’ (1628) 3 St Tr 59–234.
32 ibid, 68, 78, 81–82. Loughlin cites Coke’s speech in Parliament from 1621 where he appeared to
support the idea of prerogatives beyond the law (379 fn 18). But Coke’s views about the prerogative
had evolved by 1628: Burgess, Absolute Monarchy, n 25 above, 203. See in general S. D. White, Sir
Edward Coke and “The Grievances of the Commonwealth,” 1621–1628 (Chapel Hill: University of
North Carolina Press, 1979).
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Magna Carta included a ‘Law of State’ that governed in areas where ‘the
common law extends not’, giving the King power to act ‘when the necessity of
state requires it’ subject only to ‘natural equity’, the King’s power to commit
‘acts of state’ upon subjects in virtue of his ‘supreme power in matters of state’
being a power ‘too high to be determined by any legal direction’.33 Coke and
his colleagues from the Commons objected in no uncertain terms: ‘we read of
no Law of State’ and no law is meant by the expression lex terræ ‘save the
Common Law’.34 This was no mere quibble about where to draw boundaries
between different kinds of prerogative power. The depth of the theoretical
difference between the legal positions advanced is perhaps reflected in the fact
that Ashley was briefly taken into custody after making his point. As Lord
Camden would put it in Entick v Carrington,‘Serjeant Ashley was committed to
the Tower . . . only for asserting in argument, that there was a “law of state”
different from the common law’.35
It was unseemly, to say the least, for those fighting unjust detention to resort
to it themselves. But a more judicious response to Darnel’s Case was in the works:
parliamentarians drew up the Petition of Right to denounce the imprisonment
of subjects without cause as contrary to the ‘law of the land’ and ‘due process of
law’ affirmed by Magna Carta and other ‘good laws and statutes’. Loughlin seems
to say that we can read such seventeenth-century statements of fundamental law
as consistent with the idea of an autonomous public law or law of state. But
reading the Petition of Right consistently with a separate law of state is hard to
do, given that those who drafted it were willing to imprison lawyers contemptuous enough to suggest such a thing. Indeed, when the Lords sought to amend
the Petition to include the kind of clause that Loughlin’s argument suggests is
implicit within such instruments – they wanted the Petition to state that liberties
were therein affirmed ‘but with due regard to leave intire that Sovereign Power,
wherewith your majesty is trusted for the protection, safety, and happiness of the
people’36 – the Commons refused.‘If we grant this,’ Coke argued,‘by implication
we give a sovereign power above all these laws’, referring here primarily to
Magna Carta, and he added that ‘Magna Charta is such a fellow, that he will have
no sovereign’.37 In the end, the Lords and Commons passed the Petition of Right
without the amendment and it was given royal assent by Charles I.38 Read in its
historical context, the Petition of Right affirmed fundamental law and denied the
existence of an autonomous public law or law of state.
But we should avoid, on this occasion at least, re-fighting the constitutional
battles of the seventeenth century and focus instead upon trying to understand
33 ‘Proceedings in Parliament’ n 31 above, 149, 150, 151.
34 ibid, 153.
35 Entick v Carrington n 3 above, 1073. On this episode, see also W. Cobbett (ed), The Parliamentary
History of England, From The Earliest Period to the year 1803 (London, TC Hansard, 1807) vol II,
328–329 (Ashley’s argument was ‘so unconstitutional’ that he was taken into custody until he
apologised).
36 ‘Proceedings in Parliament’ n 31 above, 193.
37 ibid, 194.
38 J. R.Tanner, English Constitutional Conflicts of the Seventeenth Century, 1603–1689 (Cambridge: CUP,
1927) 62–63.
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the character of those battles as a matter of legal theory. As the seventeenth
century dawned, there was a general but vague consensus that certain prerogative
powers, the power to grant land for example, were closely supervised by ordinary
law (Alton Woods being an illustration), and others, like the power over foreign
relations, were not; but after the ruling on ordinary and absolute prerogatives in
Bates’ Case, theoretical positions concerning the relationship between law and
prerogative hardened.39 The arguments concerning the salus populi and reason of
state that justified governmental discretion in relation to certain specific topics
were pushed to extreme limits by Crown lawyers and reframed as the basis for an
entire philosophy of government that justified extra-legal prerogative power
whenever the King was minded to invoke it.40 At the same time, older ideas of
the common law as a set of technical customs and practices associated with the
bench and bar of certain courts existing alongside other laws and other courts was
giving way to the idea of the common law as a comprehensive normative context
within which governance generally was to be understood, a ‘cultural transformation’ that Coke in particular helped initiate.41 These two approaches to law and
government were not theoretically compatible.Although Loughlin seems to treat
the struggle between common law and prerogative during this time as a minor
skirmish over where to draw the boundary between absolute and ordinary
prerogatives, fought against the background of a general understanding about the
character of that boundary as a political achievement to be worked out through
the dynamics of sovereign power, the debates prompted by Darnel’s Case suggest
that much more was at stake.The two sides divided over the very character of the
boundary line in question. Common lawyers like Coke argued that it was a
line to be drawn through the medium of ordinary legal discourse and not by
sovereign power, so that the sphere of (so-called) absolute prerogative power was
thoroughly enveloped or ‘admeasured’ by ordinary law and any notion of an
extraordinary fundamental law or ‘Law of State’ – or public law in Loughlin’s
sense – was impossible. From this perspective, royal discretion in matters of state
was to be acknowledged and respected, to be sure, but it was also to be exercised
against the normative backdrop of the rule of (ordinary) law.
In short, the disagreement between lawyers for the Crown and lawyers for
Parliament was not about the extent of the exclusive domain of extraordinary
law; rather, the disagreement was about whether there was an extraordinary law
of state at all. Because the disagreement reflected deep divisions about the very
nature of law, jurists today who select one or other strand of thought and argue
(as a matter of law rather than history) that it represents the right one, do not
seem to commit the error of missing or ignoring an accommodation that
embraced competing views.They have not, as Loughlin says,‘lost the thread that
leads us back through the labyrinth of modern history’ (6); they have simply
39 See in general F. Oakley, ‘Jacobean Political Theology: The Absolute and Ordinary Powers of the
King’ (1968) 29 J of Hist of Ideas 323.
40 G. Baldwin, ‘Reason of State and English Parliaments, 1610–42’ (2004) 25 Hist Pol Thought 620,
628–632.
41 A. Cromartie,‘The Constitutionalist Revolution:The Transformation of Political Culture in Early
Stuart England’ (1999) 163 Past and Present 76, 107, 81–82.
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picked up one of the threads that form part of that history. Only through an
external or sociological perspective might one possibly see a political accommodation dialectically produced from the battle between opposing visions – that the
threads were woven into a kind of super or extraordinary public law that cannot
now be pulled apart – but then one could not critique the internal legal
viewpoints of either historical actors or jurists today from that perspective, for as
participants they played, or now play, the roles expected of the opponents in the
supposed dialectical battle.
At this point it is worth pausing to observe that my account of Darnel’s Case
above is premised upon the assumption that the debates among parliamentarians
that the case ignited are properly seen as examples of ordinary legal discourse, and
that Loughlin may disagree and say that because they arose within the political
domain these debates manifest the kind of political discourse that defines the
autonomous sphere of public law.The difference is significant: whether one views
public law as ordinary or extraordinary will depend largely upon how one
understands the jurisprudential character of ordinary law and ordinary legal
discourse.
Loughlin’s understanding of ordinary law is a positivist one – ordinary law is
‘posited law’ (111). Of course, he rejects legal positivism insofar as it treats the
foundations of ordinary or positive law as being outside the realm of law (86,
109). But rather than respond by extending the conception of ordinary law to
include foundational principles of political morality, he keeps the positivist
separation between foundational principles and ordinary law – he maintains ‘a
clear distinction between political right and positive law’ (83) – and merely
redefines foundational principles as an autonomous form of law.‘By broadening
our focus from positive law to political right,’ writes Loughlin,‘a radical change
in our perception of law is effected’ (11).The effect for foundational principles
may be radical – they now qualify as a form of law – but it is entirely conservative
for ordinary law.Although Loughlin says ordinary law regulates relations between
individuals and public law regulates governmental authorities, he accepts that it
is possible in theory and common in fact for ordinary law to intrude into the
domain of public law, and he characterises this regrettable ‘positivisation of public
law’ as a ‘triumph of ordinary law’ achieved through its judicial enforcement
(297). In short, Loughlin’s view of ordinary law is source-based: it is ultimately
whatever ordinary courts enforce.
Loughlin’s jurisprudential template is hard to impose upon the legal thought
of the seventeenth century.The idea that public or fundamental law was part of
English law merely because judges enforced it was denied by Coke in Calvin’s
Case. During argument in that case, it was said that ‘want of an express text of law’
governing the issues meant that the judges were ‘driven to determine the
question by natural reason’.42 Coke was bothered by this claim. He stated that if,
by reason, was simply meant ‘the reason of the wisest man’, the assertion was
‘absurd and dangerous.’43 However, if the claim about reason ‘be rightly and
legally understood’ – if, by reason, was meant ‘legal and profound reason of such
42 Calvin’s Case n 14 above, 19a.
43 ibid.
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[individuals] as by diligent study and long experience and observation are so
learned in the laws of this realm, as out of the reason of the same they can rule
the case in question’ – then the point was well taken.44 It was important to Coke
to establish that the judges were not just being wise in a moral or prudential sense
in this case, but had taken a distinctively legal approach to the question of
fundamental or natural law, and that this legal approach was just the ordinary legal
approach that lawyers and judges normally adopt.The arguments of the judges,
wrote Coke, came ‘not out of their own head and invention’ but rather manifested the adage that ‘out of old fields must come the new corn’, and thus the
judges did ‘diligently search out the judgments of our forefathers’:
for we are but of yesterday . . . and our days upon the earth are but as a shadow, in
respect of the old ancient days and times past, wherein the laws have been by the
wisdom of the most excellent men, in many successions of ages, by long and
continual experience, (the trial of right and truth) fined and refined[.]45
This interpretive process was, he thought, a distinctively legal one, in part because
of its independence from political discourse: when ‘our forefathers’ speak to us
today ‘they . . . cannot be daunted with fear of any power above them, nor be
dazzled with the applause of the popular about them’.46 The judges in Calvin’s
Case may have turned to abstract propositions of natural law or political morality,
but only in the course of interpreting the ‘multitudes of examples, precedents,
judgments, and resolutions in the laws of England, the true and unstrained reason
whereof doth decide this question’.47 The ordinary common law, for Coke, was
not just ancient custom or natural reason, and nor was it political power or
popular opinion; it was, rather, a style of discourse consciously directed toward the
development of new answers to novel questions by carrying on an existing
narrative understood through reference to the underlying principles that made
that narrative compelling.
Conceived as a form of interpretive discourse, law exists apart from rules
enforced by courts – and so, for example, reports of advice given informally by
judges to the King and his advisors might be just as important as formal judicial
rulings.48 The idea that law is a style of reasoning rather than rules enforced by
courts was expressed forcefully by Coke’s nemesis, the Lord Chancellor, Lord
Ellesmere, in his reasons in Calvin’s Case. Lord Ellesmere explained, in terms
similar though more prosaic than Coke’s, the ‘discourse of reason’ appropriate for
the ‘interpretation of the lawe in new questions’, including the need to refer on
occasion to the law of nature, and how this form of discourse or interpretation
was not the same as the arguments adopted to justify the ‘making of new laws,
44
45
46
47
48
ibid.
ibid, 3b.
ibid, 3b–4a.
ibid, 19a.
Prohibitions del Roy (1607) 12 Co Rep 63; Proclamations (1611) 12 Co Rep 74. Of course, judicial
advice to the Crown was not generally made public – Coke’s notes on these two encounters were
published after his death. See E. C. Cope,‘Sir Edward Coke and Proclamations, 1610’ (1971) 15 Am
J Legal Hist 215; R. G. Usher, ‘James I and Sir Edward Coke’ (1903) 18 Eng Hist Rev 664.
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or of altering the laws now standing’.49 But he also observed that before the issue
in Calvin’s Case had reached the courts, it was argued by representatives drawn
from Parliament, and that after consulting the ‘iudges of the realme’ and ‘long
debating, and graue and deliberate consideration’ they agreed to a resolution of
the issue in a ‘iudicious forme . . . which was not to propound to the parliament
the making of a new lawe, but a declaration of the common laws’.50 Similar
arguments were ‘propounded in the next session of parliament’ and ‘the question
was debated in a solemne conference between both the houses of parliament . . .
by men of great learning, and singular iudgment in the common lawe, and ciuile
lawe’, resulting in a proclamation that, although not ‘binding’, had, in his view,
‘validitite and force . . . in construction of lawe’.51 So although after these various
proceedings the issue remained ‘without conclusion or iudgement’ in a formal
sense, he insisted that the opinions given represented a ‘real and absolute iudgement’52 in a substantive sense. Lord Ellesmere’s description of the parliamentary
debates before Calvin’s Case could just as well have been applied to the parliamentary debates after Darnel’s Case that led to the Petition of Right. ‘The
expounding of laws doth ordinarily belong to the reverend Judges and sages of
the realm,’ wrote Coke, but ‘in cases of greatest difficulty and importance’ the laws
may be expounded in ‘the high court of parliament.’53 It was for good reason,
then, that Dicey said that the Petition of Right has ‘a certain affinity to judicial
decisions.’54 The instrument and the narratives that produced it were manifestations of ordinary legal discourse.
For the common law mind of the seventeenth century, law was a distinctive
form of interpretation, a discourse of reason adopted by judges in formal judicial
settings, but also, on occasion, by judges, lawyers, parliamentarians, and other
political actors in non-judicial settings. As an interpretive attitude, the legal
perspective could not be stopped at the border of natural law or political morality.
No boundary line existed or could exist between constitutive and constituted
law.To the extent that a foundational law of nature was thought to support, or
constitute, ordinary law, the relationship between these laws was not causal but,
to borrow the term that Loughlin uses in a different context, reflexive.To know
the law was to know the principles that made law possible. The foundational
norms of the commonwealth or state were not located beyond the range of
ordinary common law, but, on the contrary, it was thought that ‘the rules or
fundamental points of the common law . . . in truth are the maine pillars, and
supporters of the fabric of the common-wealth’55 – that, in short, in today’s
terms, public law was ordinary. Of course, because ordinary law was seen as a
matter of ordinary legal discourse rather than just what ordinary courts enforced,
49
50
51
52
53
54
The Case of the Postnati (1608) 2 St Tr 559, 693.
ibid, 663.
ibid, 664.
ibid, 667.
4 Co Rep (preface).
Dicey, n 4 above, 191, fn 2. This conclusion is true even if the Petition of Right was, in form,
legislative rather than judicial. See in general L. J. Reeve,‘The Legal Status of the Petition of Right’
(1986) 29 Hist J 257.
55 2 Co Inst 74.
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it was an open question as to whether, in any given case, the fundamental parts
of ordinary law could be vindicated in the ordinary courts or whether on
occasion private admonitions by the judges to the King might be sufficient or
resort to the high court of Parliament might be necessary. Finally, we must
acknowledge that English lawyers were not unanimous on these points. Sergeant
Ashley may have been briefly imprisoned for his views, but he was not alone in
arguing for a law of state beyond the reach of ordinary law. As a matter of
normative jurisprudence today, as opposed to legal history, Loughlin may wish to
invoke Ashely’s views just as other jurists may wish to invoke those who sided
with Coke. But in the contest between the two approaches to legality, only
normative jurisprudence rather than history as such can tell us which side is right.
THE DISCOURSE OF STATECRAFT AND THE DISCOURSE
OF LEGALITY
Foundations of Public Law is an extended argument about a special form of political
discourse, one that shapes the pursuit of the public good or salus populi through
the integration of prudence and principle outside the confines of law as it is
ordinarily understood.The argument rests on a valuable insight.There are indeed
features of our political existence that should be defined by both power and
principle, decisions of state policy that must be shaped by strategic, even partisan,
motives, but that should also be informed by genuine regard for basic principles
of political morality. The integration of power and principle in this way is
captured by the idea of statesmanship, though it is perhaps better expressed today
as a discourse of statecraft.
A sound theory of public law will acknowledge the importance of the
discourse of statecraft and explain its relationship to law. Loughlin’s account does
this by defining statecraft as encompassing a broad domain of governance that
represents an extraordinary and autonomous form of public law separate from
ordinary law. The discussion of seventeenth-century legal discourse in the preceding section suggests an alternative account of the relationship between statecraft and law, which I will now briefly outline.This alternative account may be
seen as a restatement of the common law view of public law as ordinary – a
theoretical updating, as it were, of the Diceyan division between constitutional
law enforced by ordinary courts and constitutional conventions enforced by
political actors.56
Defending the ordinariness of public law is no easy task. Over thirty years ago,
the Diceyan conception of public law as ordinary was described by Harry Arthurs
as a ‘mid-Victorian anomaly’ that had been so convincingly rejected that further
criticism of the idea would be ‘to belabour a horse which is thought to have died
. . . long ago, after assaults . . . numerous and savage’.57 But Arthurs, like Loughlin, focused upon the conception of ordinary law as rules enforced by ordinary
56 See also M. D. Walters, ‘The Law behind the Conventions of the Constitution: Reassessing the
Prorogation Debate’ (2011) 5 J of Parliamentary and Political Law 131.
57 H.W. Arthurs,‘Rethinking Administrative Law:A Slightly Dicey Business’ (1979) 17 Osgoode Hall
LJ 1, 4, 8.
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courts, or ‘judge-made’ law, and thus as an instrument for judicial supremacism.58
There is, however, another way to read Dicey, one that develops his idea of
legality as a ‘legal turn of mind’.59 In this way, the ordinariness of public law may
be seen as a basic value of political morality able to accommodate other forms of
normative discourse, including the discourse of statecraft.
In developing this argument, we may start, I think, by returning to the
seventeenth-century conception of law as an interpretive discourse and by
thinking about law in a similar vein, as a distinctive normative perspective,
attitude, or turn of mind that may be adopted in relation to matters of public
importance. If a modern account of this older approach to law is considered
necessary, we would do no better than to think in terms of the kind of interpretivist theory of law advanced by Ronald Dworkin.60 We may then approach
statecraft in a similar way, so that it is conceived not as a domain or area of
governance but as another form of interpretive discourse or normative perspective that may also be adopted in relation to matters of public importance. The
next step in our analysis is to acknowledge that because legality and statecraft are
simply different normative perspectives, rather than exclusive domains, they can
be brought to bear simultaneously upon the same matters of public importance.
Statecraft and legality are not sequential but concurrent forms of normative
political discourse.The final step in the argument is to emphasise that statecraft
is not, and cannot be, a form of law.This point requires further explanation.
What makes legal discourse legal is the distinctive manner in which it portrays
legal rules as coherent and justified in light of the more abstract principles of
political morality that they presuppose.61 The legal turn of mind is a sincere
commitment to the idea that the very practice of maintaining the integrity of a
legal narrative as new challenges are confronted produces distinctively legal
answers to political problems independently of purely political or prudential
considerations. The discourse of statecraft is different. We may accept much of
what Loughlin says about how it operates. Indeed, there is something deeply
compelling about his claim that immanent within the very idea of state governance are principles of right-ordering that require pursuit of the public good in
ways that respect the equal liberty of individuals. In fact, the same basic principle
of right-ordering is also immanent within the idea of legality or the rule of law
that the legal turn of mind presumes.62 But political morality is instantiated
through the discourse of statecraft in a way that is unlike its instantiation through
the discourse of legality. If statecraft has a value within the project of governance,
it is precisely because it provides a normative structure for political power that is
not the same as law. Like law, the perspective of statecraft compels political actors
to have regard to reasons for action that are grounded in political-moral principle
and so transcend personal, partisan, or purely political motivations or calculations;
58 ibid, 9.
59 Dicey, n 4 above, 183.
60 For a more detailed argument connecting early common law theories with Dworkin’s work, see M.
D. Walters, ‘Legal Humanism and Law as Integrity’ (2008) 67 CLJ 352.
61 R. Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986); R. Dworkin, Justice in
Robes (Cambridge: Harvard University Press, 2006).
62 T. R. S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: OUP, 2001).
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but unlike the legal perspective, statecraft will never require political actors to
exclude these distinctively political reasons for action from their considerations
entirely.The value in recognising a distinctive discourse of statecraft derives from
the value of understanding how the politics of principle and the politics of power
can combine to form a normative structure for politics.The value in recognising
a distinctive discourse of legality, in contrast, derives from the value of understanding how a form of principled analysis that is not modified by power politics
in this way may also exist to provide a different, though complementary, normative structure for politics.This is not to say that legal dicourse can be wholly
immune from personal, partisan, or power politics, just that in adopting the legal
turn of mind one must sincerely endeavour to exclude these prudential reasons
for decision from consideration, whereas in adopting the perspective of statecraft
one need not, indeed probably should not, exclude them as reasons for decision.
To attempt to squeeze statecraft into the concept of law would be either to deny
statecraft its distinctively political aspect or to deny law its distinctively legal
aspect. Perhaps the clearest example of statecraft as a system of norms is what
Dicey calls constitutional conventions. But we must elaborate on Dicey’s view of
why conventions are not law: conventions are not law not because they are
enforced politically rather than judicially, but because they emerge through the
discourse of statecraft rather than through the discourse of legality.
As concurrent rather than sequential forms of normative discourse, statecraft
and legality may offer distinctive answers to the same questions of public importance.As a result, there can be no ‘gaps, silences, and indeterminacies’ (386) in law
where ideas of political right reign untrammelled by ordinary legal considerations.The fabric of law stretches across the entire domain of social and political
life. Of course on many matters of state, the substantive policy choices of
government will be almost entirely a matter of statecraft. In these cases, the legal
perspective will always be available to provide for us a point of view from which
political decisions can be measured (or ‘admeasured’), but its distinctive contribution may be limited to the simple task of ensuring that political actors do not
abandon their commitment to statecraft altogether – that the crown (or prime
minister or president) always acts as ‘head of the commonwealth’ and not for his
or her own ‘private business’. The key, however, is to appreciate that the legal
perspective on these points will always be a manifestation of ordinary legal
discourse, for one either adopts the legal turn of mind or not. Of course, whether
ordinary law in these cases will always be vindicated through the ordinary courts
or whether, given political sensitivities or realities, other mechanisms for vindicating the rule of law are necessary, will remain an open question, itself answered
according to ordinary legal considerations.
A full restatement of the common law understanding of public law as ordinary
is beyond the scope of this essay. But this brief sketch of common law constitutionalism suggests a theory of public law that leaves no room for any extraordinary or exceptional law of state, but as much room for the cultivation of a vibrant
discourse of statecraft as is necessary for the health of the body politic.The details
of such a theory of public law will, of course, differ markedly from the idea of
public law that Loughlin defends in Foundations of Public Law. As an interpretive
theory of law, it will refuse to accept the need to distinguish between constitutive
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© 2012 The Author.The Modern Law Review © 2012 The Modern Law Review Limited.
(2012) 75(5) MLR 894–913
Mark D. Walters
and constituted law, or even of the need to conceive of law as the product of the
modern state.The common law theory of public law cannot be seen as tied fast
to the ‘mighty Ship of State’. But Foundations of Public Law does identify a general
way forward. It forces common lawyers to account for the unique idea of political
right, or statecraft, within their vision of public law. It also provides a methodological model for the construction of constitutional theory that should be
emulated, one that places the history of legal ideas at the very forefront of
jurisprudence.These are just two of the many reasons why we must conclude that
Martin Loughlin’s Foundations of Public Law is a truly unique achievement in legal
scholarship that deserves careful attention from anyone concerned about how law
and politics shape our societies today.
© 2012 The Author.The Modern Law Review © 2012 The Modern Law Review Limited.
(2012) 75(5) MLR 894–913
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