Constitutionalism & the Time of the Political

In his book The Idea of Public Law Martin Loughlin outlines three ‘orders of the political’ that underpin and orient public law. The first order begins with Carl Schmitt’s famous formulation of the distinction between friend and enemy. Loughlin contends that it is this decision or ‘deed’ that forms the foundations of the political, upon which the second and third orders rest. As such, this distinction comes before the creation of the state and before the creation of law. The second order goes beyond this stage to include a state-based program of governance. Here politics takes its place as the system that operates between the governors and the governed in order to achieve a common goal of security and stability. The third order of politics comes in the form of constitutional law. Loughlin claims that this third register functions to smooth out and balance the systems of state-government via a fair, non-partisan framework. For Loughlin, constitutional law is the result of a collective political bargain. It establishes the ‘rules’ that the people have agreed will guide and orient the relationship between government and governed. It is these three orders of the political, and their attendant relationship that, according to Loughlin, help us to understand how public law ‘works’.

My response here is a very brief foray into the temporality that undergirds Loughlin’s conception of how public law ‘works’. I will pose a few preliminary questions about the use of time in Loughlin’s theory. Namely, I want to point to the problems and pitfalls of i) positing an ‘origin’ or concrete foundation of law, ii) consigning the time of ‘the political’ to a past (the original ‘decision’) upon which governmental institutions are built upon, and iii) using the discourse of empirical history to draw out a boundary of a ‘true’ or ‘actually existing’ community of willing subjects that can perform this original deed. In addition, I want to ask how this narrative of temporality allows us to understand law as something that ‘works’ in the first place.

The Time of Law or How Law ‘Works’

Firstly, Loughlin’s description of public law perpetuates a conception of law as a transcendent force, ‘outside’ and autonomous from a subsequently insinuated ‘inside’. Peter Fitzpatrick has long since demonstrated how this trope fits into a deeply entrenched pattern of origin stories that posit a mythical time of pure beginnings. He argues that law is commonly described in these terms, thereby rendering a projection of it as a coherent and singular entity. He claims that such descriptions “elevate a particular and official interpretation of law and invest this law with abilities and values which render it transcendent and constant” (Fitzpatrick 1992: 5). The assertion of an origin deploys an authorizing temporality of law and its presence – one that scuttles the murky questions about the paradox of this inaugural moment and, indeed, its very impossibility.

Secondly, in Loughlin’s theory set out above, the time of the political has already taken place. If the first order of the political undergirds the second and third then Loughlin has invoked a particular form of temporality into his so-called ‘objective’ description. This temporality relegates the political to a prior time and place upon which governing institutions and constitutional law can be built. Certainly, the emphasis on the foundational ‘decision’ invites a reading of the double meaning of ‘deed’ here. Loughlin clearly is referring to the political decision/action as deed. But ‘deed’ might also be thought of as a type of ‘license’ or legal agreement and it certainly does function this way in Loughlin’s work. With striking similarity to the form of a contract, Loughlin’s ‘deed’ legitimates the institutional politics that are erected on top of it.

Thirdly, in the introduction to the book The Paradox of Constitutionalism: Constituent Power and Constitutional Form (2007), Loughlin stresses the importance of ‘real life’ examples in thinking through theory. As further evidenced in his solo contribution in the same book, as well as in his latest book The Foundations of Public Law (2010), Loughlin’s proclivities for empiricism run deep. In both pieces, Loughlin’s argument relies heavily on the historical contexts that underpin and give rise to contemporary constitutional problems. By delving deeply into these historical contexts Loughlin believes that history can act as a tool for making sense of what is otherwise overly abstract.

Loughlin’s historicist empiricism represents a pinnacle example of what philosopher Jean-Luc Nancy writes against. Where Loughlin uses historicism to create and legitimise a knowable and containable community at the centre of constitutional theory, Nancy would draw attention to Loughlin’s use of history as myth. Where Loughlin posits an ‘actually-existing’ constitutional community, Nancy draws attention to the dangerous culmination of this mode of thinking. Instead of closing down imagined conceptions of community, Nancy argues that we must imagine the ways in which community is always already open, between, and shared. Moreover, beyond Loughlin’s predilection for founding ‘the political’ on an original ‘deed’, Nancy advocates for thinking community outside of contractual obligations in ways that illuminate the truth of being-in-common.

The Mythical Time of Law

So what is the consequence of invoking this particular temporality to tell a story about law, constitutionalism, and political community? I claim there are at least two outcomes that critical readers of Loughlin (and other social contract theorists) should take note of.

Firstly, the story of law’s origins in a social contract – or to use Loughlin’s language, a ‘deed’ – tells us that there is an authorizing moment and, indeed, an authorizer to political community. If we consider the possibility that such foundations are false – the possibility that there is no origin story – then the authorizing force that inaugurates and maintains political community is called into question. Loughlin’s imagined ‘deed’ is a story that does not function neutrally as an objective account of ‘what actually is’ but actively creates an imagination of law’s (central) place in the creation of political community.

The second part of Loughlin’s mythological narrative is his account of the place of the political – ‘the political’ is consigned to the time of the founding ‘deed’. Although Loughlin argues that the ‘deed’ has continued presence and potential after the fact (i.e., it legitimizes the political community’s measures to break with or challenge existing institutional juridical forms), it remains that the political is tied to this contractual moment. In his account, the ‘deed’ legitimizes and authorizes the actions of the political community. This is where and when the political took place and from which it continues to wield its power. As Emilios Christodoulidis remarks in Public Law and Politics: The Scope and Limits of Constitutionalism (2008), this conception of the political runs counter to Schmitt’s decisionism by dropping the crucial element of reflexivity – that is, the ongoing process of deciding the political – and instead relegates it to one moment.

In sum, as Loughlin ‘objectively recounts’ the foundations of public law, he recasts it as inherently tied to this narrative of the political. As he paints this picture, his narrative silently elides the ever-present potential of the political to be in any place and at any time. Instead, this social contractualism confines the political to a ‘proper’ place. As I have argued elsewhere, this demand for ‘proper’ political expression is intimately tied to the discourse of civility. This is most markedly obvious in its constant characterization as the opposite of savagery. As I state in my recent article on the London Riots,

These stories, proffered by the likes of Rousseau, Hobbes, and Locke, assert the necessity of a social contract to establish authorized governmental relations that can then approve or condemn particular political action(s)…According to these liberal narratives, law is what civilizes the state of nature, it is what safeguards the people, it is what assuages the problems of living in anarchy. What these narratives actively remove from the story, of course, is the way that law does not protect but in fact is an active perpetrator of violence. (‘Race, Civility, and a Good Cup of Tea: Considering the “Political” in the London Riots’, Canadian Dimension, 25 October 2011)

Dwelling on the civilizational undergirding of social contract theory can assist in thinking through the ways in which, for example, the London Riots were deemed ‘not political’. Given the heavy hegemony of the liberal legal schema it is indeed easy to see how actions taken outside of this framework cannot be read as ‘political’. This illegibility, I contend, is linked directly with the temporal undergirding of the social contract theory like that found in Loughlin. As such, analysing the time of this narrative means re-asking questions about the time of ‘the political’, the time of ‘community’, and perhaps most importantly, the time of political community. More pointedly, if we consider that the temporality mythically consigns the political to an imagined past, we might then ask: ‘what are we waiting for?’.

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