Hannah Arendt and the Political Constitution of the United Kingdom

McCorkindale, Christopher (2011) Reclaiming the public: Hannah Arendt and the political constitution of the United Kingdom. PhD thesis. http://theses.gla.ac.uk/2625/ Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Glasgow Theses Service http://theses.gla.ac.uk/ [email protected] Reclaiming the public: Hannah Arendt and the political constitution of the United Kingdom Christopher McCorkindale Submitted in fulfillment of the requirements for the Degree of PhD School of Law College of Social Sciences University of Glasgow September 2010 Reclaiming the public My thesis seeks to reconcile British public law with an entity strangely alien to it, the people themselves. In other words, this is an attempt to re-discover the ‘public’ element of public law. Hannah Arendt, the primary theoretical focus of my work, challenged the people to recognize themselves as part of the problem of ‘modernity’; the problem, that is to say, of political apathy and thus the emergence of forms of government repugnant to the human condition; to consciously reinvent themselves as politically engaged citizens; and to thus reconstitute traditional structures of authority, sovereignty and law. This is an onerous task, most salient in times of revolution, and so it is to the tumultuous climate of 17th century England that I look for evidence of these ideas (albeit briefly) emerging in the English (and, laterally, British) context, before considering the reasons for their failure to establish a firm foothold on the constitutional terrain, and the lessons this might have for the public, and public lawyers, today. For Arendt law was the means by which we ‘belonged’ to a community, and the means by which we ‘promised’ to maintain a public space within that community in order to participate and confer authority to government. It is this underdeveloped aspect of her work which I will first explore, and then put to work in the context of the British constitution. 2 Reclaiming the public Contents Acknowledgment... 5 Declaration of work... 5 Introduction: A republican revival... 6 Part I: Hannah Arendt and constitutional resistance... 22 (1) Self-censorship as a moment of action... 22 Arendt’s political turn... 22 Bureaucracy: The rule of nobody… 27 From tumult to torpor: Machiavelli and non-domination… 30 Recovering a right to publicity: the curious case of Benjamin Constant… 37 (2)The ‘Burden’ of ‘our’ ‘time’… 40 What’s in a name? The originality of totalitarianism… 40 Crises of the republic… 46 The space of appearance… 49 (3)Framing the extraordinary… 56 The social question… 56 A constitution of judges? The role of the court in Arendt’s constitutionalism 65 Civil Disobedience… 72 Council democracy… 75 Opinon, and the right to (uncorrupted) information… 87 Part II: Stranger than fiction: The making of England’s mixed constitution... 97 (1) The Divine Right of Kings... 99 Of Kings... 100 Of the King’s right... 109 The divine right of Kings… 116 (2) Re-making the Constituent Power... 125 3 Reclaiming the public An ocean of uncertainty: Ship money under attack… 125 Such a judgement, contrary to all other… 129 On subjects and slaves… 139 Parliament’s privado... 144 (3) A new fiction... 153 The militia crisis... 153 Nineteen propositions, and an unfortunate answer… 165 From subversion to observation... 174 Part III: Reclaiming the Public... 188 (1) The virtue of ‘public-ness’… 188 Domination… 188 The virtues of public-ness… 190 My first proposition... 195 My second proposition... 205 My third proposition... 225 (2) Crises of the republic: Iraq and the constitution... 227 Justice seen (not) to be done... 227 Absolutism reincarnated: the war making prerogative… 230 Parliament as the public space… 234 Flights of fancy: expressions of public interest in the court room… 239 (3) Civil disobedience…242 (4) There will be a Scottish Parliament… 252 A word on beginnings… 252 The Case Against Poll Tax… 259 Towards devolution… 262 (5) Freedom of information… 268 On opinion and information… 268 Conclusion Reclaiming the public… 279 Bibliography... 288 4 Reclaiming the public It goes without saying that I could not have completed this thesis without the help, support and – in some cases – love of a number of people. In that regard I would like to acknowledge Adam and Gavin for their patience, for their advice, for the jolts when I needed them, and for their support when I needed that. More importantly for the education which I have received working under their supervision. I would also like to acknowledge the work which Emilios has done in transforming the Law School’s Ph D environment from one in which lone individuals sat detached from all human contact for days on end, to one thriving in intellectual as well as social exchange. For those same reasons, I owe my thanks to the fellow post graduate students who are the lifeblood of that progress. I certainly couldn’t have completed my thesis without the support of my parents and brother, even if I know that they’ll never understand why I have put myself through this. Finally, I simply would not have been in this position were it not for Louise, who has at appropriate times kept me sane or drove me insane. She has had to endure sacrifice herself in order for me to arrive at this point, and – even though in her one attempt to read it she was bored after a single paragraph - it is to her that I dedicate this work and so much more. I hope, therefore, to do her justice... (thanks Anne) Declaration I declare that, except where explicit reference is made to the contribution of others, that this dissertation is the result of my own work and has not been submitted for any other degree at the University of Glasgow or any other institution. Signature _______________________________ Printed name _______________________________ 5 Reclaiming the public Introduction: A Republican Revival In 1978 Patrick McAuslan issued a challenge to the United Kingdom’s public lawyers. He was writing, he said, at a time when “insistent” and “fundamental” questions about the relationship between the state, its institutions, civil society, and the citizens which made up that society were being asked: questions which “embrace[d] virtually every aspect of public affairs”: …the role of government and other public authorities in the management and operation of the economy; the extent and nature of control over all public authorities; the balance between confidentiality and security on the one hand and freedom of information and participation in government in the other; whether the state as a whole continues as a unitary state or becomes a federal, quasi-federal or devolved state; our relations with European institutions at one end of the governmental scale, the proper response to urban deprivation, discrimination and violence at the other end of the scale.1 The problem as McAuslan saw it was that, whilst disciplines such as philosophy (Ronald Dworkin, John Rawls, for example), political science (Maurice Vile, Ralph Milliband, C.B. MacPherson, to name a few), or economics (Fred Hirsch) were engaging with these questions (and with one another in so doing) at a ‘deep’ theoretical level, the impact of lawyers on the debate had been ‘dismal.’ Public and administrative lawyers, he said, (with some notable exceptions, such as J.A.G. Griffith and Jeffrey Jowell) had shown themselves “unwilling” (in a profession “suspicious of theory”) and/or “unable” (due to the shortcomings of the curricula of the law schools, or the limited avenues for publication of such work in the law journals)2 to make any significant contribution to the discussion. What was at stake for McAuslan amid this theoretical lacunae was the ability of lawyers to think beyond the status quo, and to draw on other disciplines to push for better government, better institutions, a better constitution, a better legal system, and a better society: By refusing to engage in open and explicit political debate, by refusing to question the assumptions and ideologies of the present 1 Patrick McAuslan ‘Administrative Law and Administrative Theory: The Dismal Performance of Administrative Lawyers’ (1978) 9 Cambrian Law Review 40, p.40 2 McAuslan (1978), pp.41-42 6 Reclaiming the public administrative law and its creators, by refusing to grapple with and make use of the ideas and theories of other disciplines, we are adopting a highly conservative political position. We are saying, implicitly if not expressly, ‘everything is basically all right.’3 Almost two decades later, in her 1994 piece ‘Changing the Mindset: The Place of Theory in English Administrative Law’,4 Carol Harlow was so underwhelmed by the response to McAuslan’s call – “[w]hat,” she asked, “are the reasons for the muted response to McAuslan’s summons to public lawyers to colonize the field of theory” – that she saw fit to renew the challenge afresh: to spark amongst public lawyers a quest to debate and determine a holistic theoretical account of their discipline; one which would allow them to wade into theoretical debates with historians, sociologists, political scientists, and, in particular at her time of writing economists, who she believed had (in no small part by colonizing the theoretical terrain) already acquired an unwelcome dominance in the era of Thatcherism.5 In the years which have followed Harlow’s renewed challenge, however, there has come to be fought, in the terrain of theory, a battle for the very heart and soul of British public law; for the very heart and soul, indeed, of the constitution.

Load more