Droit politique

This paper, a revised version of lectures given in Paris in 2016, examines the contribution that French jurists have made to the development of political jurisprudence. It argues that that contribution can most concisely be presented by examining the manner in which the distinctive concept of "droit politique" was devised and has evolved in French legal and political thought. The paper considers the pioneering contributions of Bodin, Montesquieu and Rousseau, examines the role the concept performed in revolutionary debates, and explains its subsequent development in the nineteenth and twentieth centuries

The erosion of sovereignty

Many of the assumptions underpinning the modern system of nation-states are now being placed in question. Increased global flows of capital, intensified networks of social interaction, and the emergence of transnational regulatory regimes on a significant scale are affecting the ability of national governments to regulate their economic conditions and improve their citizens’ well-being. The effects of economic, technological and cultural change are having significant impacts on the activity of governing, the cumulative effect of which is experienced as a diminution in the efficacy of those levers of command and control that have been a common feature of the modern nation-state settlement. These developments have generated a great deal of policy analysis and scholarly examination

Politonomy

This chapter situates Schmitt as a jurist and specifically as a scholar occupying a distinctive position within German state theory. Schmitt’s overall objective was to build a theory of the constitution of political authority from the most basic elements of the subject, and in this respect he sought to make a contribution to the discipline of politonomy. A concept first alluded to by Schmitt but one he never developed, politonomy concerns the inquiry into the most basic laws and practices of the political. The chapter examines Schmitt’s ambivalent position in politonomy, which was rooted in his distrust of the scientific significance of general concepts. To the extent that Schmitt acknowledged the existence of a law of the political, this chapter argues that it is found implicitly within his embrace of institutionalism in the 1930s and later in his account of nomos as the basic law of appropriation, division, and production

The British constitution: thoughts on the cause of the present discontents

This paper, the text of the Robin Cooke Lecture given at the Victoria University of Wellington in December 2017, examines the constitutional implications of the UK’s decision following the referendum of June 2016 to leave the European Union. Noting that by the latter half of the twentieth century many were arguing that the prospect for the British constitution was one of progressive paralysis, it argues that this prospect was avoided by the UK’s embrace of continuing European integration. For this reason, the UK’s withdrawal from the EU presents a series of constitutional challenges that are more complicated than the mantra ‘taking back control’ would suggest

The political constitution revisited

In his 1978 Chorley Lecture on ‘The Political Constitution’, John Griffith presented a critical appraisal of contemporary trends in British constitutional thinking from a functional perspective. This lecture has recently been revived by a new generation of public law scholars as the founding text of an emerging school of ‘political constitutionalism’. In this paper, I argue that today’s political constitutionalists have distorted Griffith’s method and thereby misconstrued its significance. In doing so, they have also obscured the orientation of their movement

What would John Griffith have made of Jonathan Sumption's Reith Lectures?

In his 2019 Reith Lectures on the rise of law and decline of politics, Jonathan Sumption presents a thesis that, on its face, seems identical to that of J.A.G. Griffith's defence of the political constitution. Given the radical differences in their views on equality, democracy, and redistribution—with Griffith working in the tradition of democratic socialism espoused by the Webbs, Tawney and Laski, and Sumption expressing the libertarian philosophy underpinning Thatcherite policies—this is puzzling. This article sets their views in historical and political context and argues that the similarities are superficial, whereas the differences are profound. It then proceeds to show the weaknesses in Sumption's defence of his thesis

The state: conditio sine qua non

The legal idea of the state is commonly misunderstood. In this note, the nature of the concept is explained and its significance for modern legal thought presented. Drawing on the distinction between sovereign and sovereignty, it is argued that the state-an idea that links territory, authority and people in an intelligible scheme-is the foundational concept that enables lawyers coherently to engage with the issue of political authority