The threat posed by insensate power lust

Is the United Kingdom's unwritten constitution able to withstand new assault by ambitious? John Dunn admit to fears for the future.

A state, some have thought, is an entity that claims and contrives to exercise a monopoly on the legitimate exercise of force within a given territory. Within its own jurisdiction it decides exactly what its laws are, and is therefore unconstrained, unless it chooses to be so, by any laws external to itself. States, accordingly, have a distinctly uneasy relation to any framework of international law.

All of us today live in and under states; and all therefore have grounds to view at least one state with some trepidation. How can such fears be eased, and how (if at all) can such promiscuous subjection be justified? Modern political thinking has only one candidate for a coherent answer to these two questions. We can live in reasonable security under a given state, and our doing so can be justified if, and only if, its authority is drawn unmistakably from us, and its power is both defined and effectively controlled by an appropriate constitution (the authority of which is also drawn unmistakably from us). These last two thoughts can readily pull in opposite directions. It is none too clear exactly what a constitution is, or what has to be true for its powers to be defined clearly or controlled effectively. Indeed it is far from clear that its powers can in principle be defined very clearly, and still less clear that they can be controlled at all effectively over time.

Scott Gordon's ambitious and wide-ranging Controlling the State is principally an attempt to recover the history of western attempts to establish effective practices of state restraint and vindicate their indispensability. Gordon himself, a retired professor of economics and the history and philosophy of science, is not a historian of political ideas or practice by professional formation.

For a title issued by Harvard University Press, his book has a surprising number of minor errors and solecisms. It also varies appreciably in the quality and depth of the historical sources on which it chooses to draw. It is often not especially clear, and at best sporadic in its use of acknowledgement or the more impressive modern historical literature on the huge range of topics that it mentions. It seems, for example, wholly unaware not merely of recent studies such as Denis Baranger's instructive Parlementarisme des Origines (1999), but even of such readily available and basic texts as Paul Rahe's massive Republics Ancient and Modern (1992) or Bernard Manin's admirably lucid The Principles of Representative Government (1997). It scarcely does justice to the huge scholarly impact of John Pocock's resuscitation of an entire tradition of political understanding. It has some valuable historical components, notably the chapters on Venice and the United Provinces. But its main claim on the reader's attention lies in the vigour and essential good sense of its central emphasis. For all its merits, the historical scholarship of the past two decades cannot be said to have made great strides in clarifying how exactly states can be organised to be more dependably reassuring to most of their own subjects, or which elements in the tangled and confused record of modern political thinking can be trusted to aid us in judging how to make them so in practice.

For a variety of reasons, and in ways which political scientists remain some way from fathoming, the past dozen years have seen an extraordinarily widespread flurry of efforts at constitution-making. At its grossest this was no doubt an unsurprising concomitant of America's sudden and massively disorientating victory in the cold war. It would be early days to assess any of it as solid successes, even if much of it has already established itself beyond doubt as comprehensive failure. What is less clear is what, if anything, has yet been dependably learnt from what must be one of history's biggest booms in constitutionalism.

For a very long time subjects of the British crown were reared, with varying degrees of educational strenuousness, to view the constitutional vicissitudes of less happy lands with considerable condescension. Britain itself had a constitution that was both distinctive and singularly historically felicitous, its origins wreathed in the mists of antiquity (or, as Montesquieu alleged, in the German woods) and its modern adaptations broadening out from precedent to precedent to the edification of all who chose to inspect them. This constitution was unwritten. It was certainly not derived from a single foundational and still plainly authoritative document, carrying the imprimatur of a historical occasion of due clarity of collective will or evident sovereign magnificence. But it was reliably and effectively present. It guaranteed the liberties of free-born Britons, none of whom stood in legal jeopardy of enslavement. There was, naturally, considerable disagreement as to how best to see the passage of this shadowy entity through space and time, and understandable factional squabbling on occasion over how exactly it bore on contemporary political confrontations. But virtually no one still saw it as nebulous, or as a site of dramatic political opportunity or danger.

Strikingly, in retrospect, the global boom in constitutionalist endeavour has coincided with a rapid deflation in the plausibility of Britain's domestic political institutions, and an associated anxiety or even panic about the residual basis of their legitimacy. The Rape of the Constitution? is a response to this experience. Despite its melodramatic and metaphorically inept title (is that the way you see Tony Blair?), it is a spirited read and raises many interesting and important questions.

Most contributors seem united in concluding that the British constitution,whatever its merits or limitations in the past, now has neither the resources to guide an unwise and wilful government, nor the power to obstruct it when it proves obtuse to guidance. This seems accurate enough, as far as it goes. But it does little to clarify whose fault this unseemly state of affairs really is, and still less to show what we would be well advised to try to do about it. Partly this is because the contributors are sharply divided over whether what renders the British constitution such an ineffectual restraint at present is simply that it is unwritten, and hence lacks legitimacy in the first place, or that it has been effectively overridden and subverted by the insensate lust for power of new Labour in office. The best polemic in the book takes aim very much at the latter target. (I had not expected to derive so much enjoyment from the verdict of a political columnist from the Daily Express.) The insensate lust for power we have ever with us. Democracy, as Joseph Schumpeter patiently explained, is the rule of the politician. But it must be the lack of legitimacy that is the more important. Those with little esteem for any particular unwritten constitution may reasonably doubt that it can be worth the paper on which it is not written. However, textuality here is scarcely the point. What matters is power. An unwritten constitution that has been observed for very long periods of time because political competitors had little option but to treat its practices as authoritative has decidedly more intrinsic power than the most sonorous and carefully thought-through text can carry all by itself. If the latter is to have power, it must not merely define the terms of permissible political competition but find some basis on which to ensure their observance. This is not a textual matter.

The two great constitutional explorations of the late 18th century, in North America and France, considered these issues with great care and impressive imagination. Modern politics has yet to reach decisively beyond the boundaries that they defined so dramatically. The American debate eventuated, by luck as well as good judgement and special geographical providence, in an institutional format of remarkable historical longevity, even if it needed the first great mass war of modern history to secure its continuity at one point. The French debate, notoriously, did not, and unleashed instead more protracted, immediate and gratuitous violence upon all its neighbours.

To the rationalist eye, the United Kingdom has never made much sense. It will be no great surprise if it ends in confusion and bad faith. There definitely is something shabby, parochial and vaguely emetic about British politics at present. (Scarcely for the first time.) Glancing across the Commons chamber, it is hard to see how a change of government can offer either a prompt or an effective remedy for this. Could a constitutional convention, at least in the medium term, hope to prove more effective? The prime minister's handling of devolution and the House of Lords, as the editor's contributors amply bring home, has shown his characteristic blend of the imperious and the pusillanimous, and notably fails to convey either frankness or clarity of mind. This is hardly the way to change a constitution dependably for the better.

Creating a new and serviceable constitution requires an unusual conjunction of challenge and response. A loss of plausibility and legitimacy in our political institutions is as yet too tepid a challenge; and only someone with their head buried firmly in the sand could be sanguine at present about the prospective quality of Britain's (or indeed England's) response. Who are to be our Madisons and Hamiltons, our Sieyes and Condorcets? If I wished to devise a machine to run by itself, I would be disinclined to start from here. I would also be disinclined to start from now. Until the terms of Britain's participation in the European Union are firmly settled, and indeed until the future contours of the EU itself become a trifle clearer, it is scarcely practicable to rewrite a constitution with much specificity, and not apparent how rewriting one with purposeful vagueness can offer much benefit to anyone. More promising is to press for particular items of legislation, notably for sharper and more robust mechanisms of governmental accountability in the provision of information, and to object loudly, and if possible effectively, at the confusion and dishonesty of much that the government can already clearly be seen to be doing. It is not in principle possible for subjects to control states at all precisely. But it is always possible to contest the terms of political subjection, and sometimes practicable to render them far less objectionable in practice.

John Dunn is professor of political theory, University of Cambridge.