The Left and Constitutional Reform

Monet, Houses of Parliament, Sunset 1903What surprised me most in the Guardian New Politics articles was that the majority have little to do with politics. They are suggestions for changes in constitutional law – some relatively minor (reducing the number of MPs, shortening their holidays or abolishing the archaic protocol – although this reform zeal may end up with a Parliament even less fun than at present), a few more radical.  This is rather strange for commentators who on the whole try to keep the influence of lawyers at bay. New Politics exhibits the lawyerly mentality at its most imperial: if our politics has gone wrong change the rules, improve procedures, ultimately have a written constitution and things will fast improve. Constitutional fetishism is a triumph of procedure over substance, of the legal over the political.

What is the relationship between politics and the constitution?  In a technical sense, constitutional law codifies the rules of the political game providing its practitioners with the necessary order and predictability. The role of the Speaker, Parliamentary committees or the inner workings of Cabinet and government belong to this formal constitution. In a more general and historical sense, however, the constitution condenses and expresses the balance of social forces in our society. It is the metronome of power, the map of its inner and outer limits, the way (public and private) power relates to community and the citizen. The technical constitution is the club rules of the political elite, the substantive constitution is the heart of the polity.

Most suggestions in New Politics address the formal constitution. The dysfunction which led to the current crisis however relates to the wider way power operates. The symptoms of this deeper and much more dangerous crisis have been around for some time: a war sold to the public on a false prospectus with dire consequences for victors and vanquished alike. A total disregard for the majority view that the war was wrong, a view created despite most media and opinion leaders kowtowing to the Government.  But the most dramatic sign of the crisis of the substantive constitution is the economic meltdown. It led to the (surface) abandonment of the neo-liberal capitalism. Neo-liberalism however is not just a pernicious economic model. It is a total world-view defining how power operates, how individuals should relate to themselves and to others, what is the role of our country in the world. While the economic premises of this idolatry have come to grief, its repercussions on ideology, society and culture have been largely ignored. The possibility of a new politics will be decided here.

Parliament may introduce rules and independent overseers to stop expense fiddling or house ‘flipping’. But the main problem is not stopping financial impropriety and even illegality. It is the dominance of the view that public good and private gain are synonymous. That the role of the politics is not to change the balance of power and reduce the wealth inequality but to maintain the gap and smooth its operation. Such mentalities and ideologies cannot simply change through rule reforms.  What about having a totally new ‘written’ constitution?

The greatest pleasure in teaching our Constitution is that you cannot understand it without a good grounding in politics and history. You cannot teach the constitutional conventions without discussing how Tony Benn through sheer stubbornness and political campaigning re-wrote the rules to allow peers to renounce their peerage and become elected MPs. This allowed Lord Hume to renounce his peerage and as Alec Douglas-Hume end up Prime Minister. You cannot explain collective responsibility without understanding how the size of governmental majorities influences constitutional decisions or without discussing the Westland affair and Michael Heseltine.

Despite rumours to the contrary, we do have a constitution and its un-codified peculiarity is the greatest advantage of our polity. No collective body could work without such explicit and conventional rules and procedures. It is scattered across statutes, the common law, parliamentary rules and those conventions which regulate in a vague way some important parts of the political game. This is what made John Griffith, the great radical public lawyer, to say that everything that happens in politics is constitutional and if nothing happened that would be constitutional too. In other words, our politics and our law have an organic relationship that has made them grow together, adjust and change. This gradual process is what allows the possibility of reform of some key constitutional rules today. The peculiarity of our ‘unwritten’ constitution is its most radical element: everything from the monarchy to the congestion charge can be changed with a simple parliamentary vote.

No radical change of the type proposed by the commentators would have been possible under the American, German or French constitutions. In order to change anything in a written constitution, the whole thing must be scrapped or amended according to drawn out and cumbersome procedures or revolutions. The 1951 Greek Constitution stated that constitutional monarchy could not be changed. It took a dictatorship, a couple or referenda and a new constitution but the former Greek King has resided in North London for almost half a century.

The left should protect our flexible constitutional arrangements precisely because radical changes are for the first time on the agenda. Turning to specific reforms, the left should put forward ideas which would help change the substantive constitution. Two stand out immediately: the abolition of monarchy for symbolic reasons and proportional representation. PR does not have totemic value and good formal arguments exist on both sides of the debate. For the left, PR is the necessary prerequisite for its re-alignment. The Labour abandonment of socialist principles and its move to the centre has created a huge void on the left. If New Politics is about a change in the balance of forces, the left realignment must traumatically go through a Labour split. Getting a Tory government is a cure worse than the disease. But the prospect of a long time in opposition and the possibility of smaller party representation PR creates may wean people from short-term career calculations.

How can we ordinary citizens participate in such a process of reform? The continuing saga of parliamentary corruption on the eve of European and local elections brings to mind Nobel winner Jose Saramago’s wonderful political parable Seeing.  Citizens of an unnamed city cast massively blank ballots in two consecutive national elections. The right-wing government considers this act high treason and declares a state of emergency. Secret agents spy on citizens, interrogate and torture but no conspiracy emerges. The rail station is bombed in the hope that citizens will blame terrorists, to no avail. Eventually the government and all state services leave the capital expecting that the resulting disorder will make voters see sense. Life however continues peacefully. The hapless government imposes a state of siege and punishes the city by cutting it off with tanks eventually leading the whole country into an abject state.

What would happen if on June 4 many of us spoil our ballots? Would Gordon Brown leave London for Scotland? Would he resign in response to this exhibition of mass disobedience, this act of active passivity?  In democratic theory, elections have a kind of magic. On the one hand, they turn the people into equal single units, each counting one and added to other equal units. But at the same time, elections unify the body politic by giving it a collective voice and turning it for a few hours into the ‘sovereign’ people. Participating in the elections but not voting for any party would be a political action of great consequence. It would show that the left cares deeply for elections and democratic representation but needs new people, parties and ideas if a new politics is to rise from the current debris.

Costas Douzinas is Professor of Law and Director of the Birkbeck Institute for the Humanities, University of London

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Costas Douzinas

COSTAS DOUZINAS is a Member of the Hellenic Parliament, a Professor of Law and the Director of the Birkbeck Institute for the Humanities, University of London. His recent books include The Meaning of Human Rights (co-edited with Conor Gearty, CUP, 2014), The Cambridge Companion to Human Rights Law (co-edited with Conor Gearty, CUP, 2013), Philosophy and Resistance in the Crisis: Greece and the Future of Europe (Polity, 2013), The Idea of Communism (co-edited with Slavoj Žižek, Verso, 2012), and New Critical Legal Thinking: Law and the Political (co-edited with Matthew Stone and Illan rua Wall, Birkbeck Law Press/Routledge, 2012). Douzinas has served as an editor for Law & Critique, his books have been translated into thirteen languages, and he has written extensively for The Guardian, OpenDemocracy, and other global publications. 

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