[Draft]

THREE WAVES OF POLITICAL CONSTITUTIONALISM

Marco Goldoni
University of Glasgow

Content
1. The First Wave: Functional Political Constitutionalism .............................................. 2
2. The Second Wave: The Normative Turn and the Defensive Posture ....................... 4
3. A Third Wave of Political Constitutionalism: The Reflexive Turn ............................ 7
4. Making Sense of the Trajectory .................................................................................... 13

Political Constitution and Political Constitutionalism are established terms of the

constitutional debate in the Anglophone world and in particular in the United Kingdom.
However, political constitutionalism has been often identified only with the rejection of
judicial review. This is a very limited understanding of a political approach to
constitutionalism, even though it should be recognised that political constitutionalists are
co-responsible for this reductive rendering. Yet, this paper claims that there is more to
political constitutionalism than just a sheer rejection of strong judicial review. In fact, the
article will reconstruct the trajectory of political constitutionalism in an attempt to show
that the firm obstinate rejection of judicial review is circumstantial and often overstated.
In fact, the forefathers of political constitutionalism were keen on expanding their analysis
onto wider areas of constitutional functions. Hence, the article divides the development
of political constitutionalism into three periods and show that only during the second the
focus on judicial review was predominant. Therefore, the articles aim is two-fold: to offer
a historical overview of the trajectory of political constitutionalism and to plead for a
further deepening of the third wave.

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 1. The First Wave: Functional Political Constitutionalism

The first wave of political constitutionalism what we call its functionalist wave was
most clearly articulated by the late JAG Griffith in his 1978 Chorley Lecture The Political
Constitution. This hugely influential lecture both shocked (its audience) and inspired (the
second and third waves of political constitutionalism) for the strength and the tone of its
defence of the existing governing arrangements of the United Kingdom. Whilst Griffith
does not repeat those words political constitution in his lecture, it is clear that here he
equates that form of constitution with Westminster-style parliamentary government;
where (contrary to its many critics) the primary function of the constitution was first and
foremost to enable government to act. Let us explain.
Griffiths defensive posture was set against a two-fold attack. On the one hand was an
attack on the form of the political constitution itself. So, Griffith railed against those such
as Lord Hailsham and Lord Scarman for whom the primary function of the constitution
was to limit government. Underlying each of their calls for constitutional reform which
included, variously, a Bill of Rights, a proportionally elected House of Lords, devolution
to the nations and regions of the United Kingdom, a reformed machinery of
administrative law, the creation of a Supreme Court, and a written constitution was the
implication that our present arrangements had failed to fulfil this task. The United
Kingdoms centralised democracy amounted, in Lord Hailshams view, to an elective
dictatorship in which a bare majority in a single chamber assemblyelected on a first
past the post basis [is able to] assert its will over the whole people whatever that will may
be (Lord Hailsham, The Dilemma of Democracy). A form of limited government, on the
other hand, would prescribe limits beyond which governments and Parliament must not
go, and would suggest the ways and means not least of all by an enhanced judicial
power - by which those limits could be enforced. On the other hand was an attack on the
very nature of politics. On the other hand, Griffith sought to defend the political
constitution at the level of constitutional theory, from the prevailing influence of Dworkin
describing his consensus-based conception of community morality as [being] decisive
of legal issues as nonsense at the top of a very high ladder. What was at stake here, in
Griffiths view and what it was that he sought to defend was the core principle by
which the United Kingdoms (famously uncodified) constitution was organised: the
creative and dynamic force of political conflict.
Griffiths objections were two fold. His political objection was that proposals for limited
government attacked at what he called the very heart of the political constitution: that
Governments of the United Kingdom may take any action necessary for the proper
government of the United Kingdom, as they see it, subject to two limitations. Those
limitations were that they may not infringe the legal rights of others without lawful
authority to do so (in statute or in prerogative), and that if they wish to change the law,
they must attain the assent of Parliament barely limitations at all where the First Past the

2
Post electoral system routinely (with only two exceptions in the post-WW2 era) returns
governments with (often disproportionately large) working majorities on its own
backbenches. The fundamental objection which followed was the attempt in so doing to
substitute law for politics: government by law and not by men. For Griffith this was an
unobtainable ideal. Neither written constitutions, nor Bills of Rights, nor any other of the
contemporaneous reform proposals, could achieve it. The best they could do, he said, was
pass political decisions out of the hands of politicians, who were accountable to and
representative of the public, and into the hands of judges, who - frankly - were neither.
The flaw (or the deceit) which ran as a fault line through the reforms of Lords Hailsham
and Scarman, or through the theories of Dworkin and his followers, was that their basic,
reductive, claim that there exist constitutional questions the answers to which are so
uncontroversial; so clear and commonly held; so natural as to render them non-derogable
and so place them outwith the fray of ordinary political disagreement fundamentally
misunderstood the human condition. For Griffith, with echoes of Arendt and Crick, that
condition is one of conflict: Ubiquitous, inevitable, and intractable conflict. The ubiquity
of conflict was self-evident to him: All I can see in the community in which I live,
Griffith said, is a considerable disagreement about the controversial issues of the day and
this is not surprising as those issues would not be controversial if there were agreement.
Inevitable because we areall of usboth individual and social animals, and the rights,
principles and interests that we hold dear in each capacity are neither (necessarily)
comparable, co-equal, nor, and this is the point, compatible. We are born and we are
conflicted, indeed, inherently so. Secondly, because we seek a life lived with others. Be it
in the company of the family and friends with whom we are surrounded in our private
lives, or the communities in which we live, work and act, socially, economically and
politically, our interactions with others serve only to multiply the differences and
disagreements, conflicts and compromises that characterize our living together. Indeed it
was the recognition of these tensions which led Griffith to the view that conflict is not
only inevitable but intractable. We find this [condition] difficult to accept, he said, and
so we continuously seek the reconciliation of opposites and become frustrated and
aggressive when this fails. For Griffith, neither politics, what happens in the continuance
or resolution of those conflicts, nor law, which is but one means, one process, by which
those conflicts are continued or temporarily resolved, are capable of delivering us from
conflict. Those who claim otherwise, it might be said, have left reality behind and entered
the world of make-believe.
Before we leave Griffith to consider his influence on the second (normative) wave of
political constitutionalism, it is worth reflecting on a final, and crucial, point. In his Chorley
Lecture Griffith aligned the political constitution with a centralised Westminster form of
parliamentary government. However, this account is both incomplete and contingent.
Incomplete because Griffith knew that political action carried its own legitimacy and so could
find expression in, and give rise to, alternative sites of constitutionalism. To take one
striking example, when writing about local government his challenge was for local
3
government to emerge from the shadows a creature of statute whose authority flowed
(only and directly) from and through Westminster and instead to be its own
justification. This was to say that the democratic nature of local government was such
that there could be found an alternative (perhaps even competing) source of constitutional
authority, as opposed merely to a subordinate one. Contingent because Griffith did not defend
the existing form of parliamentary government for its own sake, as an end in itself, but
rather because at that moment in our history this was the form of government best
able to channel the conflict that, in his view, was itself constitutive of politics. Compare
his assertion in 1978 that no one nowadays doubts that the Conservative party exists
primarily to promote the interests of private capital and the Labour party the interests of
organised trade unionism, that in this conflict is captured that between mans individual
and social being, with the rather more pessimistic tone struck a decade earlier in his paper
Why We Need a Revolution. At that moment, he said, the system of government was
starting to look its age a mere device for replacing one set of rulers for another set who
are barely distinguishable. As we move on to consider the second wave which set out
to add normative weight to Griffiths (apparent) descriptivism it is worth stressing that
in our view Griffith himself was always prescriptive, and in this contrast we see it quite
clearly: that constitutions ought to reflect and channel the conflicts which define and
inhere in the human condition; that we must reject any and all forms of constitution
judicial or parliamentary which pay lip service to these circumstances of politics; that the
authority and legitimacy of the political constitution lies not in a political institution, but
in that contingent moment of political action which calls that institution into being and
sustains it (however momentarily).

2. The Second Wave: The Normative Turn and the Defensive Posture

If the first wave of political constitutionalism set itself against the constitutional reform
proposals of Lord Hailsham et al, and the legal theory of Ronald Dworkin, the second
wave too set its defensive posture against both concrete constitutional reforms and their
theoretical underpinnings. First, the revival of common law constitutionalism, most
conspicuously in the jurisprudence of Sir John Laws in the Court of Appeal, and of Lord
Steyn, Lord Hope and Baroness Hale in the House of Lords,1 seemed to signal that
Griffiths lecture marked the zenith of political constitutionalism rather than its
renaissance.2 Secondly, and continuing that theme, the constitutional reforms against
which Griffiths argument was set most notably devolution to the nations and a bill of
rights enforceable against primary legislation in the domestic courts seemed to come to
pass with the passage of the Human Rights Act 1998 and the Scotland, Government of
Wales and Northern Ireland Acts of the same year. For Griffith, what must have been
more galling still was that these reforms, which in his view attacked the political
1 CASES
2 LOUGHLIN PUBLIC LAW
4
constitution at its very heart, were made not by a Conservative majority with designs on
limiting the constitutions potential for societal transformation, but by a Labour majority
who had all but abandoned that goal. Thirdly, the momentary growth and success of an
American-based approach to constitutional law after the fall of the Wall had made judicial
review of rights the main topic in comparative constitutional studies. On top of that, it
should be added the increase in European integration with the leap represented by the
Maastricht Treaty. As documented, the penetration by stealth of EU law increased the
feeling of a slow but unavoidable dismantling of the political constitution.3 Finally, the
growing importance of the European Convention on Human Rights and its adjudicative
system contributed to enhancing the impression of further erosion of the principle of
parliamentary sovereignty.
For second wave political constitutionalists this triumph of legal constitutionalism could
at least in part be explained by what was, in their view, a failure of the first wave: the
failure, that is to say, to articulate a normatively attractive model of political constitutionalism
to counter the rich theoretical foundations from which the model of legal
constitutionalism was built. As Adam Tomkins has said, the consequence of this omission
was that legal constitutionalists had it easy: in advancing their case they [did] not have to
show that the loss of the political model entails risking anything of value.4
It is at this point, then, that we are able to identify the core of the second wave - that
differences in their approach aside, each of its contributors are bound by a common cause:
the articulation of a more explicitly, self-consciously normative approach to thinking and
talking about the idea of the political constitution.5
The contours of this debate are well known and it is not our intention here to provide a
comprehensive map of what we call the second wave.6 Instead we wish only to shine a
light on what we believe to be the crucial element still missing from their analysis. In a
nutshell, normative political constitutionalists begin from the recognition of the peculiar
political condition of every community, which is characterised by what they define as the
two circumstances of politics: 1) there is a pervasive reasonable disagreement among
people and 2) there is a need to govern by reaching common decisions.7 Basically, against
legal constitutionalists, the second wave holds that nothing is beyond disagreement, in
particular individual rights. Note that the difference with legal constitutionalists is not on
the central role played by individual rights in modern constitutionalism, but on their
content. Legal constitutionalists believe that at least the core content of individual rights
can be known in an objective way, hence the role granted to the judges. But if rights are
open to reasonable disagreement, then political constitutionalists suggest deciding on their

3 Danny Nicol, EC Membership and the Judicialisation of British Politics, OUP, 2002.
4 TOMKINS p39
5 GEE/WEBBER p6
6 BUT SEE GEE/WEBBER 2010; BLOG
7 Waldron, Law and Disagreement, pp. 98-100; Albert Weale, Democracy, 12-13; Bellamy, Political constitutionalism

5
content by upholding the cardinal constitutional principle of political equality, instantiated
by the right to participate in lawmaking processes that fundamentally govern the live of a
society. The foundation of the principle of political equality is normative: it complies with
the idea that every person is an autonomous agent whose opinions concerning the
community are of the same value of everyone elses. Crucially, political equality is
advocated as an individual good, which, in order to be made relevant, has to be translated
into impulses in the governing processes though legislation and accountability of the
executive. Through political representation, individual voices are registered and translated
into a specific form of input legitimacy. Therefore, at the constitutional level, the principle
of political equality is implemented through parliamentary politics.8 In virtue of its
institutional design and its history, parliament is best suited to realise political equality and,
in lack of objective knowledge of their content, the protection of rights. In other words,
with the support of a mix of normative theory and historical analysis, at the constitutional
level the principle of political equality determines the principle of parliamentary
sovereignty.9
This is to say that, in our view, in making the pivot from a functionalist to a normative
account of the political constitution, political constitutionalists pressed by the urgency
of the task10 - have taken for granted the answer to a crucial and underexplored prior
question: what is political about the political constitution?11 Instead, and as we will now
explain, politics has too quickly been reduced to its parliamentary form, with consequences
for the integrity of their claim to be thinking politically about the political constitution.
This faith in the legislature is nowhere more clearly articulated than in Keith Ewings
defense of parliamentary sovereignty as a sine qua non of political constitutionalism.
Expressing his frustration that Griffith himself did not directly engage with the issue,
Ewing explains that in his view the legal principle of parliamentary sovereignty, what he
calls the core legal principle of the political constitution, amounts to no more and no
less than the legal principle underpinning the political principle that in a democracy there
should be no legal limit to the wishes of the people.12 However, it is at precisely this point
that the non-reflexivity of the second wave is exposed. In fact, the enclosure of political
action under the umbrella of parliamentary sovereignty is assumed as unproblematic. In
the remainder of this essay we will seek to show that both historically and conceptually
the sovereignty of Parliament has had a stifling effect on politics by excluding its
omnipotence from the scope of reasonable disagreement.

8 See Jeremy Waldron, Representative Lawmaking, Boston University Law Review,

9 For a reconstruction of the principle see Jeffrey Goldsworthy, Parliamentary Sovereignty, Cambridge University Press,
Cambridge, 2012.
10 EXPLAIN
11 The same question is asked by Panu Minkinnen, ICON, 2013.
12 KEITH The Resilience of the Political Constitution p2118

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 3. A Third Wave of Political Constitutionalism: The Reflexive Turn

One attempt at overcoming some of the unchallenged assumptions of normative political

constitutionalists can be seen in the scholarship on the so-called new commonwealth
model (or weak judicial review).13 It is not surprising that constitutional lawyers have
looked into possible ways of redeeming the model of the political constitution by allowing
a measure of judicial control over it, while, at the same time, leaving to parliament the last
word. The dialectic solution to the conundrum of the legal and political dimensions of
constitutionalism is given by a synthesis of the two main models. According to this
perspective, a reciprocal contamination, which is potentially a dialogue, favours in the end
the achievement of the main aim of the constitutional order: rights protection. The point
made by Gardbaum, Mark Tushnet, Janet Hiebert, and Alison Young is that the political
process can actually be involved in (ex ante) rights review and at the same time, it can be
exposed to an external scrutiny (a judicial one) whose only influence over parliament is
the force of persuasion, that is, the quality and the credibility of its own judgments.
In this model, Parliament retains the authority to decide on rights, but the quality of its
deliberations can be increased by taking into account other non-parliamentary
perspectives. Gardbaums sums up the virtues of the new commonwealth model by
resorting to the language of a third way between legal and political constitutionalism: as a
new intermediate option that breaks open the old bipolar, either-or choice, the new model
provides an institutional arrangement that treats legal and political protection of rights as
supplementary rather than as alternatives, and in so doing combines the strengths of each
without also importing their characteristic weaknesses.14 Note that the whole debate is
based on the insight that the assumption of unquestionable parliamentary sovereignty does
not rest on solid normative ground and the same is actually valid for the legal
constitutionalist claim of judicial supremacy. Under a comparative perspective, the work
on the new commonwealth model represents a valuable effort because it tests doctrinally
and empirically some normative assumptions made by second wave political
constitutionalists. It sheds light on important limitations of the second wave discourse.
An important case is seen in the limited reflexivity on political rights, represented evidently
by the issue of prisoners voting rights. Tushnet and Hiebert, for example, have shown
how complicated is, from the internal perspective of normative political constitutionalism,
to justify the exclusion from the most basic political right of the represented.15 In this way,
it is recognised that there is a potential contradiction between the justification of
parliamentary lawmaking based on individual political equality (and participation) and its
representative nature. The risk is that given the popularity of playing tough on crime for
contemporary politicians, there is no concrete chance for the disenfranchised to have a

13 The classic reference here goes to the work of Stephen Gardbaum, The new Commonwealth Model of Constitutionalism, Cambridge
University Press, Cambridge, 2012.
14 Gardbaum, p. 76.
15 Janet Hiebert, German Law Journal

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say in the political process. However, the whole effort of the new commonwealth model
is still (1) mostly limited to rights review, (2) focussed in large part on the individual and
(2) mainly normative in character. Therefore, no particular emphasis is placed upon power
relations and institutional history, and the material background conditions under which
such a model operates are absent.16
The narrow concern for rights review, a limited view of constitutional functions
circumscribed to the legislative and the judiciary, and the fundamentally normative
approach, make the weak-judicial review model (or new commonwealth model) limited
and not categorically different from the second wave of political constitutionalism.17
Moreover, as Jeff King has aptly argued, the risk for this third-way solution is that in all
cases pointed to by these authors, either the practice of rights review falls back into
parliamentary supremacy or into judicial supremacy.18 The questions of what is political
about political constitutionalism or what does it mean to interpret a constitution politically
are never really posed. Both questions are rather taken for granted by assuming that the
horizon is determined by the confrontation between parliamentary politics and judicial
reasoning without even inquiring into the undergirding conception of separation of
powers (or functions).19 The idea of a weak judicial review is formulated within the
boundaries set by legal constitutionalists claims.
In fact, it is our claim that dissatisfaction with this normative approach has been very
evident already for a while in contemporary works. Accordingly, a third wave of political
constitutionalism is emerging, which might vindicate some precious insights from the first
wave and, at the same time, overcome some of the limits of the normative stream of
political constitutionalism. Contrary to the second wave, this one is not a self-conscious
attempt to react against a common enemy. The third wave is not immediately visible to
the eye of the observer because, rather than a constellation, it resembles a nebula which
can be identified, despite its uncertain and blurred boundaries, by observing certain traits
common to different works.20 The first of these traits concerns the operative context: the
third wave appears to be much less concerned by the rise of judicial power and juristocracy
and more focussed on the analysis of the conditions which make possible the emergence,
the development and the preservation of a political constitution. As a consequence, rights

16 This is actually common to many comparative works. See, for example, J. Goldsworthy (ed), Interpreting Constitutions. A
Comparative Studies, Oxford University Press, Oxford, 2006.
17 Even Jeremy Waldron has acknowledged the legitimacy of weak judicial review: The Core of the Case against Judicial

Review, in Yale Law Journal

18 J. King, Rights and the Rule of Law in Third Way Constitutionalism, in Constitutional Commentary, 2014, pp.
19 This is one of the points made by Paul Scott, (political) constitutions and (Political) constitutionalism, in German Law

Journal. In a different context, a reconstruction is attempted by Christoph Mollers, The Three Branches Oxford University Press,
Oxford,
20 It is important to note that the difference between second and third wave is not strictly generational. Actually, the emphasis

here is on works rather than authors. The nebula we allude to is visible only as a set of works which deal with some issues
with similar methodological concerns.
8
review is not the main or certainly the exclusive focus.21 Content-wise, the works of the
third wave are more prone to look beyond formal institutional arrangements and to inquiry
into political practices, governing arrangements and customs. Methodologically, the works
belonging to the third wave are not functionally-driven nor they aim primarily at a
normative outcome. At their core, works belonging to the third wave are an exercise in
understanding, which contain necessarily a reflexive quality. Reflexive here has to be
understood in a double sense: methodologically, as an approach based on the analysis of
the contexts and conditions enabling or stifling the political constitution; substantively, as
a way to keep the question of political action open within the discourse on political
constitutionalism. This reflexive character makes it possible to inquiry into what makes
possible to understand a constitutional order as a political artifice and, in this way, to open
a new channel for inquiring into the possibilities of political action. As a consequence, the
study of constitutional law ought to be recalibrated.
In a series of ground-breaking articles, Graham Gee and Grgoire Webber have urged
political constitutionalists to drift their attention toward the grammar(s) of public law.22
Gee and Webber starting point is epistemic: the knowledge of a constitutional order and
the possibility of making sense of it heavily depends on the understanding of its language.
The target is the prevalent form of abstract rationalism in constitutional studies. This is
the case because public lawyers tend to adopt a sloppy and vague language, which does
not reflect the underlying constitutional reality. A rationalist view of public law promotes
a language of principles, developing in this way an understanding of the constitution that
focuses only on, and in turn exaggerates, certain features of our political and legal
arrangements and [] provides a false and misleading education in public law.23 Theirs is
a call to revive certain aspects of Griffiths scholarship: the attention to the political culture
of the institution and its working arrangements were already placed by Griffith himself
against the metaphysics of principles.24 Gee and Webber also urge constitutional scholars
to think politically about public law. This begins with an awareness of [] the underlying
relationships within legal and political practice.25 This is an invitation to look beyond the
formal proceedings in courts and in parliamentary assemblies in order to grasp the tenets
of the political constitution. The core knowledge for the political constitutionalist ought
to be the varied and daily practices which animate constitutional and political life. The
political constitution is at work during parliamentary proceedings, but by far not only
there. What is not publicly visible is equally relevant: A nexus of micro and macro political
and legal processes shape the political constitution and, crucially, this forms the
quintessential object of knowledge for public lawyers. Such an approach implies a careful

21Of course, some of the authors belonging to the third wave have also written important contributions to the issue of rights
review. An example is given by Grgoire Webber, The Negotiable Constitution, Cambridge University Press, 2009.
22
23 Rationalism in Public Law, p. 712.
24 Both authors have written extensively on Griffith. It should also be noted that their other great intellectual source is
represented by Michael Oakshott and its peculiar blend of rationalism.
25 Gee and Webber, 2151.

9
and accurate reconstruction of the complexities of these institutional practices, which
should not be limited to parliament but extended to the judiciary and the executive.
Otherwise, the unreflective use of principles culminates in a serious pathology:
constitutional discourse is trivialised by taking up a placeholder constitution.26 The
grammar of public law should never lose touch with the realities of power and conflict
populating the constitution.27 Interestingly, the principle of parliamentary sovereignty is
among the examples they point to in order to illustrate the tendency toward the
placeholder constitution. A reflexive understanding might resort to a model of the
political constitution, as a necessarily incomplete explanatory framework,28 but always by
bearing in mind the relevance of the concrete dynamics behind it. Coherently, Gee and
Webber maintain that the study of public law ought to be shaped by a form of prudential
rationality.
The most coherent and developed effort in the direction of a reflexive take on political
constitutionalism is visible in the theory of Martin Loughlin, whose works have traced the
historical and conceptual coordinates for the emergence of the field of public law.29
Loughlins reflection aims at retrieving the conditions which made possible the rise and
development of modern public law. Through this methodology, named political
jurisprudence, he provides an account of the enabling conditions of modern political
constitutions.30 This entails a shift from rights review to the generation of political power
as the main concern for constitutional understanding and an aesthetic (in the Kantian
sense) of the space where political constitutions can arise. According to Loughlin, the
place of political constitutions, in modern times, has been the European State. Contrary
to Griffith, Loughlin takes the modern state as the main juridical unit and the separation
between sovereign and government as the enabling factor for generating political power.
Therefore, even the development of the British model of constitutionalism is rightly
placed in the wider context of modern European constitutionalism.31 Furthermore, the
history and the explanation of parliamentary sovereignty are located in a framework that
allows seeing the continuity and the differences with other European models of
constitutionalism. It turns out, for example, that parliamentary supremacy is not reducible
to a normative doctrine and it is not fully understandable if it is not studied against the
background of the institutionalisation of the political unity of England (extended later to
other nations by treaties or colonisation). The reason of the success of the Parliamentary
government rests on its state-building force, which is the precondition for generating
political power. In all this, the task of political jurisprudence is not to provide a normative

26 Rationalism in Public Law, p.

27 Gee and Webber defines it as the gap between the simplicity of language and the complexity of practice: p. 2153.
28 This is a point made most forcefully in Gee, Webber, What is a Political Constitution?, 30 Oxford Journal of Legal Studies,

2010, 273.
29 The Idea of Public Law; Foundations of Public Law; the British Constitution
30 The point of constitutional theory is to render explicit our self-understandings and thus to bring to consciousness the

assumptions secreted within such structures: Public Law and Political Theory, Clarendon, 1992, p. 35.
31 In order to address [] fundamental questions, the British are obliged to re-connect with the mainstream of the European

tradition of public law: The Foundations of Public Law, p. 6.

10
justification but to reconstruct the grammar of public law. It is by no chance that Loughlin
writes of a grammar (as an analogy) of public law, which provides a scheme of
intelligibility. From the prism offered by this grammar, power and freedom are observed
as political creation par excellence: Just as the rules of grammar are not restrictions on
speech but are possibility-conferring rules that enable us to speak with greater precision,
so too should the rules and practices of public law be seen not as restrictions on power or
liberty but as rules that are constitutive of the meaning of these terms.32
Obviously, the grammar is local knowledge, not universal as it is more the product of
prudential reasoning than morality (hence, the autonomy of public law). The tone of the
argument has a distinctive antipositivist flavour. Through the study of the grammar of
public law we acquire knowledge of the words and symbols of the language in conjunction
with an understanding of the appropriate circumstances in which to use them.33 All this
implies that knowledge of the practices of public law can be acquired only by paying
attention to their implicit assumptions and background conditions. The pay off, again, is
hermeneutic and not normative: by studying the grammar we become more skilled at
extending the language to cover unusual cases or situations that appear exceptional.34
When it addresses also exceptions or hard cases, the grammar of public law illuminates a
different relation between law and politics than the one advocated by normative political
constitutionalists.35 According to the latter, law and politics do belong to different spheres.
Law is seen as instrumental to the organisation of political processes and, at the same time,
political processes are meant to engage in lawmaking. Loughlins reflexive approach show
that law and politics are actually intertwined because they form the backbone of the
constitutional order.36 Knowledge of the basic tenets of a constitutional order is therefore
political and legal at the same time. It is juristic knowledge. The political stake of modern
public law is therefore that of being a productive force, in particular of power and
freedom, and to achieve this Loughlin reminds us that two enabling factors are necessary:
a juridico-political unity (a nomos) immanent to sovereignty and an effective exercise of the
art of governing society.37 The relation and the tension between these two polarities is
enabling in a double sense. It is constitutive and limiting of the art of public law. Political
jurisprudence operates in between this tension.

32 Foundations, p. 178.
33 Foundations, p. 179.
34 Ibidem.
35 For a powerful attempt at reconciling normative positivism and Loughlins project see Michael Gordon, A Basis for

Positivist and Political Public Law: Reconciing Loughlins Public Law with (Normative) Legal Positivism, in Jurisprudence ,
2016, forthcoming.
36 In terms of legal philosophy, the second wave of political constitutionalism is linked to normative positivism: Waldron,

Normative (Ethical) Positivism; Tom Campbell, Richard Bellamy, Political Constitutionalism and the Human Rights Act, in
ICON. Loughlins distinctive take on political constitutionalism is rooted in the theory of legal institutionalism. See, for
example, Nomos, in
37 Panu Minkinnen has remarked the limited political salience of Loughlins political constitutionalism because it debases the

potentiality of conflict: Political Contitutionalism versus Political Constitutional Theory: Law, Power, and Politics, Icon,
2013, p. 599.
11
Finally, another strand of this third wave has to be mentioned because a fast-growing
scholarship on the relation between national and supranational orders has sparked new
interest in the political constitutions beyond the level of the state.38 Michael Wilkinson has
applied a reflexive approach to the European Union in order to understand whether there
is a European constitution at all, and in that case what is its nature. What is relevant here
for our purpose is not much what conclusions Wilkinson can draw from a political
constitutionalist analysis of the nature of the EU, but his reflections on the political
approach to the constitution. The perspective adopted is indeed a reflexive one, which
entails an analysis of political constitutionalism with a view on European integration which
does not have normative underpinnings; to the contrary, it is a distinct type of approach,
seeking instead to get behind the positive constitution and it bears more affinity [than
normative political constitutionalism] with the way Griffith originally used the term
political constitution [] to capture the sense of the constitution of the polity as a
whole.39 A political constitution emerges and develops out of a concrete ordering of
society. In other words, it has a formal and a material consistency. In terms of
constitutional knowledge, this entails to move away from the individual as the main unit
of analysis to the polity itself, which, as already remarked in the previous section, is one
of the main tenets of the normative approach. According to this type of analysis, the polity
does not represent a monolith nor a pre-given entity (e.g., the nation), but, by being
conceived as in constant formation and reformation, it is introduced as the space and the
context where the reflexive exercise takes place. Every constitution has a political form
(and social substance). It is a task of constitutional discourse to identify and reconstruct
this form (and substance) as it emerges and develops in distinctive ways.40 In line with
other works belonging to the same nebula, it is the relation among political and legal
institutions, on one hand, and social practices on the other, to be the focal point of
constitutional analysis. But Wilkinson, following Griffiths seminal insight, also adds to
this picture a description of the relational aspect of constitutional authority based on
political conflict: this relational element is best understood as historical and political rather
than moral or naturalistic, the upshot of conflict and struggle over the terms of our
constitutional settlement and aspirations. It must therefore also be understood as
conditioned by social factors that enable (or disable) a compelling narrative of polity
formation.41
In this last instantiation, the focus of constitutional analysis entails an undergirding
substance which is usually shaped by production or reproduction of a societal order. The
reflexive moment re-thematises the relation between society and constitution, which is
usually blurred or treated in an individualistic perspective by both legal and political

38 See, for example, Andrew Glencross, The Absence of Political Constitutionalism in the EU, Journal of European Public
Policy,
39 Michael Wilkinson, Political Constitutionalism and the European Union, p. 193, fn 8.
40 Ibidem, p. 209.
41 Ibidem.

12
constitutionalists. Clearly, some aspects of a sociological study of constitutions might
resonate at this stage. Chris Thornhill and other authors have recently revived the study
of sociological constitutionalism by proposing to adopt a historical and functional
interpretation of the development of modern constitutions.42 In a nutshell, constitutions
are interpreted from the prism of systems theory and thus by emphasising their function.
The reconstruction offered by Thornhill is more nuanced than those put forward by other
systems theorists because it tries to preserve a space for political action.43 In a recent
intervention on the debate, Thornhill has clearly attacked the second wave of political
constitutionalism for its poor account of its main topic: politics.44 Yet, his reconstruction
of the political specificity of modern constitutions still remains reductive. Thornhill simply
maintains that political power can be generated from different channels. This is probably
not surprising, as his approach to the study of constitutions revolves mainly around a
functional understanding and hence it still conceives constitutional powers as organised
around functions. Hence, it explains away the formation and development of legal and
political institutions by looking at functions and structural couplings. The content of the
constitution is again mostly a form which, given its functional orientation, is replaceable.
In fact, institutions are seen through the lenses of constitutional functions. As it is known,
functional equivalence makes it possible that the same function can be performed by
different organs or institutions. This leaves the question why a society has adopted a
particular set of institutions and distribution of functions partially unanswered. It also
leaves the role of political agency in the formation and development of constitutions
outside the picture. A political approach to the study of the constitution would rather
inquiry into the specificities of the organisation of powers and on the processes of political
subjectivation which underpins constitutional dynamics. In other words, the question
would not be, as it is for the sociology of constitutions, what constitutions do, but rather,
in a more analytical fashion, why constitutions do certain things in a certain way.

4. Making Sense of the Trajectory

It is time to take stock. At this stage, an objection might be raised. The reflexivity of the
third wave is too remote from its origins, stretching to the point that it is almost not
recognisable as a discourse on political constitutionalism. Our point, however, is that it
still makes sense to maintain a connection with the first wave and to read the third way as
a vindication of some claims. While it is true that the likes of Griffith and Crick were
particularly keen on parliamentary politics (but Griffith certainly less), they also expressed
their dissatisfaction toward the limits of party politics when it is not capable of staging a
clear political conflict and operating as a vector of mediation. In that case, peoples political

42 The most important works in this tradition are C. Thornhill, A Sociology of Constitutions, Cambridge, 2011: G. Teubner,
Constitutional Fragments, Oxford University Press, 2012; H. Brunkhorst, . See, for an inquiry into the possibilities offered by this
method, P. Blokker, C. Thornhill (eds), Cambridge, 2016.
43 C. Thornhill,
44 C. Thornhill, , in Modern Law Review, 2016, pp.

13
participation is mocked by a sterile and superficial electoral competition with not much at
stake. A reflexive understanding on constitutional law will have to push the analysis further
by focussing on the coordinates which make possible the formation and development of
a political constitution. This means to focus on essential tenets of societal formation
through constitutional means.45
In terms of the study of constitutional law, the main theoretical imports of the third wave
are two: an awareness of the material substratum underlying constitutional ordering and
the capacity for thematising possibilities of political action. In this way, political
constitutionalism is able to provide much more than a rationalisation of the status quo in
Commonwealth countries. Moreover, the third wave urbanises this political approach
and put it at use for comparative purposes. It also puts forward a more demanding claim
for constitutional studies by widening the scope of their inquiry. Beyond the narrow-
minded obsession on the expansion of judicial power, much else needs to be thematised
by political constitutionalists. From the study of referendums46 to the analysis of new
forms of constituent power, from an urgent reflection on the role of key institutions in
contemporary societies like the army or central banks to their impact upon the separation
of powers, and their relation with the rest of society,47 a renewed political take on
constitutionalism ought to focus on the juristic nexus between law and politics as the core
of reflexive knowledge without building unnecessary or even obstructive oppositions.
Political constitutionalism would certainly gain in relevance and accuracy by expanding
such an approach.

45 For a recent attempt coming from a utterly different tradition, see Gao,
46 Cf S. Tierney, Whose Referendum?, in German Law Journal
47 The blindness of political constitutionalists vis--vis key political and financial institutions is striking such as the army and

central banks is telling. Only a rather formalist view of constitutional law would leave essential tenets of the constitutional
order of society like the sword or the currency out of the picture. This is even more striking as several classics of modern
constitutional thought were clearly concerned with these aspects, as Montesquieus masterpiece, for example,
14