This paper posits a (very British!) call to arms, and does so in five steps. In part A we address the need for constitutional fictions by which the many surrender political power to the few, in the same of stability, order and security. In part B, however, we seek to show that conflict is both a necessary and core principle of political constitutionalism – that it is the latent possibility of conflict, the (re)awakening of the many where the few abuse that power, that acts as the final check on government. In part C, we trace the steps by which recent re-interpretations of the work of J.A.G. Griffith – with a focus on the work of Tomkins and Bellamy - have reduced politics to its parliamentary form, thereby closing (rather than “enlarging”) the “areas for argument and discussion” (a narrow view of the constitution to which, admittedly, Griffith himself might have subscribed) and in so doing closing off the very possibility of a constitutional conflict between the rulers and the ruled out outwith existing institutional channels. In part D, we will assess the limits of such a narrow reading of the political and argue that a more dynamic and reflexive approach is needed if we are to remain in (or recover to) rude constitutional health. Finally, in part E, we will use the political and constitutional background to the devolution of legislative and executive power to Scotland in order to demonstrate the power of political conflict, in extraordinary moments, to expose, break down and create new constitutional fictions.
|Journal||German Law Journal|
|Early online date||19 Jun 2013|
|Publication status||Published - 2013|
- constitutional law
- political constitutionalism