By October 2013, the German Law Journal, published monthly and available at no cost on the Internet – www.germanlawjournal.com – counted approximately 1593 publications, authored by approximately 1.450-1.500 authors. A journal project of such magnitude in itself could certainly not have been expected by its founders. Just as unlikely it would have seemed to them or anyone else, for that matter, that their little, bi-monthly email newsletter, originally entitled “Momentaufnahme” (Engl.: snapshot; French: glimpse d'oueil), would grow into a web-based, peer-reviewed legal periodical with more than 13.000 registered subscribers worldwide and a sizable journal ranking among existing international law reviews. If I only had a moment to express my thoughts on leaving the Journal, I would use it to express my immense gratitude to those whom I can never thank enough. My colleagues in this project, present and former members on the editorial board, and the authors, from near and far, many of whom we never had the fortune to meet in person despite an often vivid exchange of thoughts and ideas, as well as, of course, our readers throughout the years – it is to all of them that I owe thanks too comprehensive to measure. It is one thing to launch a journal, it is another for it to be read, sustained, shaped and encouraged over the span of almost fifteen years. The GLJ is what it is today because of the input it has received over all this time, and for that I am immensely grateful.

The revival of the political constitution has come about in parallel with two developments, one in constitutional practice and the other in political theory. With regard to the former, the political constitution has been seen as something of a bulwark against the rise of legal (or judicial, or common law) constitutionalism. The seeming hegemony of this latter model of constitutionalism among contemporary lawyers and political scientists has produced from (so-called) political constitutionalists a reaction against the delegation of important decisions to non-political institutions and an obsessively court-centered scholarship. Perceiving this shift in focus from political to legal institutions to be the very antithesis of the traditional Commonwealth (more particularly, of the United Kingdom's parliamentary) model of constitutionalism, and, more broadly, to be an affront to democratic sensibilities, the notion of the political constitution was retrieved and defended in a seminal article in the 1979 edition of the Modern Law Review, written (though first delivered in his Chorley Lecture the previous year) by the late John Griffith. More recently, in the work of Adam Tomkins, Richard Bellamy, and Grégoire Webber and Graham Gee, a normative interpretation has been lent to Griffith's thesis so as to provide a full-fledged constitutional theory capable of standing as an alternative to the liberal-legal paradigm—a turn, one might say, from the political constitution to political constitutionalism.

The first part of this paper examines the nature and form of the political constitution, and argues that traditional approaches to its scope and purpose are too narrow in focus: The political constitution is about enabling and empowering government, as well as containing and constraining it; it is also predicated upon a body of core and indeterminate political freedoms (albeit frequently submerged and often displaced). The second part of the paper examines three contestable assumptions about what some claim to be a move from a political to a legal constitution. The first relates to the widespread (but flawed) ideological understanding of the political constitution; the second relates to the capacity of the “legal” to resist capture by the “political;” and the third relates to the effectiveness of the legal to protect political freedom. An attempt is made throughout unusually to illustrate argument with evidence, in this instance about the resilient political constitution.

The dominant grammar of public law is a product of abstraction that, at times, overemphasizes certainty and simplicity in a search for systematic coherence within the constitution, even where none exists. In contrast, a concern for and with political and legal practice invites a more tentative and exacting grammar, one that necessitates further questioning, resists generalities and appeals instead to a language of “more or less” and “in one sense but not in another” as part of our public law discourse. We seek a practice-oriented grammar that encourages public lawyers to think and to speak politically about the constitution. We draw on works of prominent political constitutionalists to show how they have had varying degrees of success in nurturing a more practice-oriented grammar of public law.

This paper responds to the conceptual inflation of constitutionalism in recent years by considering the relationship between constitutions and the specific concept of constitutionalism, seeking to establish the limits to the identification of the latter outside its traditional province. It considers both constitutions and constitutionalism in general terms, but seeks in particular to elucidate the relationship between the political constitution and political constitutionalism. This task requires an explanation of the law/politics divide and the paper argues for an institutional distinction between the two concepts, as opposed to one based upon the supposedly distinctive rationalities associated with law and politics. It grafts these categories onto a concept of constitutionalism characterized by a specific functional logic, whereby the same mechanisms that constitute power also limit that power. As such, it argues that to identify constitutionalism in contexts in which constitution and limitation occur separately—as in different layers of a multi-layered constitutional order—is mistaken. Constitutionalism is defined by this distinctive dualism, which in turn grants it its legitimating potential.

In light of this definition of constitutionalism, the paper considers the relationship between law and politics within the constitutional order, offering three potential accounts of the connection between them. Amongst these, it endorses the idea that law and politics are necessarily linked: Within the democratic constitution, each frames the other such that legal requirements are the outcome of a political process which itself takes a form determined by law. The two phenomena are therefore inseparable; in a certain sense, all law is politics and all politics is law. The piece ends by suggesting that this claim is true where, and only where, the conditions laid down for constitutionalism hold true. Constitutionalism is a dualist phenomenon which, where it occurs, brings with it a highly particular melding of the legal and the political.

One notable feature about the debate between “liberal” and “political” constitutionalism has been its elite focus. The courts and the legislature are discussed in efforts to determine the appropriate role of each in processes of constitution-framing and changing. But this task is often set up implicitly as a zero-sum game. Although it might be claimed that citizens are tangentially relevant to this power struggle, a detailed account of whether citizens should, and how they might, play a direct role in constitutional authorship is seldom, if ever, placed on the table. This paper considers the elite orientation of this debate, questioning whether this is in normative terms acceptable, and in empirical terms credible, particularly as we consider how, over the past three decades, the referendum has emerged as an important vehicle for constitutional change in so many states.

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 name of stability, order and security. In part B, however, we will show that conflict is both a necessary and a core principle of political constitutionalism—that it is the latent possibility of conflict, the (re)awkening 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. 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.

The article presents the normative case for the new Commonwealth model as a novel third way of organizing basic institutional arrangements in a democracy and an alternative to the conventional dichotomy of legal or political constitutionalism. In so doing, it engages with the latest contributions to the debate about the merits of judicial review, and argues that the new model radically and compellingly permits a form of “proportional representation” among the best arguments for and against the practice rather than the “warts-and-all” of the traditional either/or approach. In this way, the new model is to forms of constitutionalism what the mixed economy is to forms of economic organization: a distinct and appealing third way in between two purer but flawed extremes. Just as the mixed economy is a hybrid economic form combining the core benefits of capitalism and socialism while minimizing their well-known costs, so too the new model offers an alternative to the old choice of judicial supremacy or traditional parliamentary sovereignty by combining the strengths of each while avoiding their major weaknesses. Like the mixed economy's countering of the lopsided allocation of power under capitalism to markets and under socialism to planning, the new model counters legal and political constitutionalism's lopsided allocations of power to courts and legislatures respectively.

At least in some subject-matter domains—most notably, social and economic rights— weak-form constitutional review may have become the predominant form of constitutional review in practice. This essay describes the obvious connections between weak-form review and political constitutionalism: Weak-form review allows the courts to bring to legislatures' attention constitutional difficulties that may have been overlooked in the process of enactment. This may occur because of the burdens of inertia and coalition-building, as identified by Rosalind Dixon, or because of unanticipatable difficulties of application in individual cases, the sort of difficulties that are central to Alon Harel's account of constitutional review as justified by a right to a hearing. Once legislatures have been so notified, they can address—or deliberatively refuse to address—the difficulties the courts have identified. Political constitutionalism provides an account of how they do so. This essay then discusses some of the political conditions that must be in place for political constitutionalism to be normatively attractive, relative to judicial constitutionalism. It concludes with some speculations about the utility of weak-form review in dealing with matters at the core of first-generation rights, such as seditious speech, after describing its utility in dealing with more “modern” problems associated with first-generation rights, such as hate speech and sexually explicit expression.

The United Kingdom has long resisted the idea of adopting a judicially reviewable bill of rights, which historically has been considered inconsistent with a core constitutional principle of parliamentary sovereignty. When adopting the Human Rights Act (HRA), the political framers insisted on preserving Parliament's final say on the legality of legislation.

The decision to authorize judicial review, while also constraining the scope of judicial remedies by withholding a power to invalidate inconsistent legislation, has introduced serious ambiguity about the function of the HRA and also about where political legitimacy resides for resolving institutional disagreements about how rights appropriately guide or constrain legislation. The first example of ambiguity is with respect to how institutional actors understand the principal function of the HRA. For example, does rights protection occur primarily through judicial review, either by authorizing the judiciary to engage in interpretive techniques that force legislative compliance, or by identifying rights constraints that parliament is expected to address by enacting remedial measures? Or instead does rights protection occur via altered political practices: by engaging bureaucrats, the executive, and Parliament in a more conscious role of identifying how rights are implicated in proposed legislation, increasing intra-institutional deliberation about justification, and facilitating pressure to implement rights-inspired amendments? The second example of ambiguity occurs with respect to political actors' responsibilities in circumstances where courts disagree that legislation complies with protected rights, as judicially interpreted. Specifically, how does the principle of parliamentary sovereignty relate to the mission of a recently adopted bill of rights? Notwithstanding formal constraints on judicial power, can Parliament's contrary judgment be considered a compelling interpretation of rights and, if so, under what circumstances and according to what criteria?

This paper explores this ambiguity in the context of debate about disenfranchising prisoners.

The United Kingdom has long considered a bill of rights as both unnecessary and inconsistent with the constitutional principle of parliamentary sovereignty. This view of inconsistency arose from the assumption that an effective bill of rights requires a judicial remedial capacity to set aside inconsistent legislation, and thus this judicial power contradicts the idea that parliament has the final say on the legality of duly enacted legislation. Yet a political willingness to experiment with where responsibility resides for remedial action helped overcome reticence to adopt a bill of rights. The HRA came into effect in 2000 and incorporates the European Convention of Human Rights into domestic law. Yet the HRA differs significantly from conventional assumptions about how a bill of rights functions. Instead of conceiving of rights protection in a court-centric manner, as occurring through binding judicial remedies to redress rights infringements that have already occurred, the HRA instead represents a more politically-oriented bill of rights. Such a politically-oriented bill of rights embodies the optimistic ideals of facilitating proactive rights protection through more rights-oriented legislative processes and relying on political willingness to enact remedies if the judiciary subsequently disagrees that legislation is consistent with Convention rights.

The HRA represents an ambitious model for rights protection that envisages rights-based scrutiny occurring at four institutional stages, three of which are oriented around the legislative process. The first of these four stages, pre-legislative review, arises from a new ministerial reporting requirement in section 19 to alert Parliament that a legislative bill is either compatible with Convention rights or that the minister is unable to claim compatibility. This reporting obligation has precipitated regular assessments by government lawyers and relevant policy officials of whether legislative initiatives are consistent with Convention rights before these become legislative bills. The second stage, parliamentary rights review, is facilitated by the creation of a specialized parliamentary rights committee—the Joint Committee on Human Rights—to review legislation from a rights perspective, which provides Parliament regular and often critical reports on the persuasiveness of the minister's earlier claim that a bill is consistent with the Convention rights. Judicial review, the third stage, occurs as a result of a new authority for judges to consider whether legislation is consistent with Convention rights. If judges determine that legislation is inconsistent with Convention rights, judicial censure can take an interpretive form under section 3 of the HRA, by altering the scope or effects of legislation through a judicial interpretation that strives to render legislation compatible with Convention rights, or it can take a more explicit form by declaring that the legislation is not compatible with Convention rights under section 4 of the HRA. The fourth stage arises from a legislative process for implementing remedial legislation in section 10 and reflects the political framers' expectations that Parliament will regularly comply with domestic and European Court of Human Rights (ECtHR) rulings of incompatibility.

Yet this highly idealized model of rights protection reflects deep and unresolved ambiguity about the nature of parliament's responsibility to pass remedial measures. This ambiguity is a direct consequence of a political attempt to construct a rights project that emphasizes a juridical approach for interpreting liberal constitutional values and yet also relies on political willingness to enact remedies. The significance of this ambiguity is intensified by the rhetorical dissonance between the claim that a strong expectation of compliance with British and ECtHR rulings exists and the very different claim that parliamentary sovereignty protects parliament's capacity to have the final say on all judgments including those involving rights.

The seriousness of this ambiguity is particularly clear in political responses to judicial rulings that the UK's comprehensive ban on prisoners' voting is inconsistent with ECtHR rulings. The paper examines political reactions to ECtHR rulings on prisoner voting in Part One. Part Two draws on the work of Jeremy Waldron to suggest the benefit of Parliament developing processes or criteria to revisit judicially-impugned legislation in order to reassess the merits of its earlier judgment and/or the justification of political reticence to implement remedial measures. Although some might interpret this argument that Parliament should reassess the justification of legislation from a rights perspective as being in serious tension with ideas associated with political constitutionalism, the author rejects this interpretation. This perception is only valid if the argument for re-evaluation is predicated on the idea that courts alone are capable of, or have legitimacy for, judgments about rights. If one rejects a court-centric position on this issue, as does the author, and yet also takes seriously the idea that a polity's fundamental rights should be respected, it is incumbent upon Parliament to find a way to critically assess and distinguish when its dissenting judgment is justified as a reasonable response to legitimate rights-based concerns, from when Parliament's dissenting opinion can only be explained as an assertion of political and constitutional power.

This paper argues that we should move on from what has become a rather outdated contrast between the political constitution and the legal constitution. Taking as its focus the constitution of the United Kingdom, the paper analyzes the contemporary constitutional order as a mixed system of politics and law combined. It argues that such a mix may be a more compelling and attractive system than either the model of the political constitution or that of the legal constitution.