Reclaiming the public

310 Pages·2011·1.13 MB·English

McCorkindale, Christopher (2011) Reclaiming the public: Hannah
Arendt and the political constitution of the United Kingdom.
PhD thesis.

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Glasgow Theses Service
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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.
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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
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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
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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 _______________________________
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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
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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.

Neil MacCormick has said of constitutionalism that how we think about it will reveal how we
approach the question of ‘liberty’. Constitutionalism, he said, is an essential component in
man’s search for “that ever elusive goal of human freedom.”6 For MacCormick…

…[t]he real question is not whether these concepts are involved in
the issue of political freedom, but what conceptions of them we
should propose as defining a favoured ideal of liberty in
community.7

As if to reaffirm MacCormick’s view, the dynamic which has driven this theoretical renaissance
(and as we shall see, despite McAuslan and Harlow’s fears for the absence of lawyers from the
terrain of theory at particular moments, renaissance is the correct description: for what has come

3 McAuslan (1978), p.44
4 Carol Harlow ‘Changing the Mindset: The Place of Theory in English Administrative Law’ (1994) 14(3) Oxford
Journal of Legal Studies 419
5 Harlow (1994), p.433
6 Neil MacCormick ‘Unrepentant Gradualism’, Owen Dudley Edwards (ed.) A Claim of Right for Scotland
(Edinburgh, Polygon, 1989), p.99
7 MacCormick, in Edwards (ed.) (1989), p.99
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about has been the revival at the surface of theoretical debates which have been present yet
obscured at least since the 17th century, when English government was (albeit temporarily)
turned on its head) has been an exchange about the ways by which we (ought to) conceptualize,
institutionalize, protect and enhance liberty. Before sketching the parameters of this thesis,
however, let us first anatomize the concepts of liberty in which that debate is grounded.

The anatomy of liberty was – as we shall see, influentially but not originally – drawn by the
French novelist, politician, and political theorist, Benjamin Constant, in his famous address, ‘The
Liberty of the Ancients compared with that of the Moderns’, which he delivered to an audience
at the Athénée Royal, Paris in 1819.8 The distinction, “still rather new” at that time,9 was one
drawn between ancient freedom as the freedom to engage in politics on the one hand, and the
modern freedom from politics on the other. It was, at first (and this is an important qualification,
for reasons I will come to make clear), Constant’s thesis that ancient freedom was just that,
ancient. It belonged inescapably to the ancient world of Athens, of Sparta, of Rome, but was no
longer relevant in the modern world. Ancient liberty, he said, was the freedom actively to
participate, “collectively, but directly,” in the affairs of the republic: deliberating in the public
square questions of war and peace, forming alliances with foreign governments, voting on laws,
calling those who occupied public office to account for their deeds and misdeeds, pronouncing
judgments and so on. Whilst, however, in these ancient constitutions Constant saw the
individual as being “almost always sovereign in public affairs,”10 the price which the citizen paid
for that political freedom was his privacy. The free citizen of the free states of antiquity, he said,
was no more than “a slave in all [of] his private relations:”

All private actions were submitted to a severe surveillance. No
importance was given to individual independence, neither in
relation to opinions, nor to labour, nor above all, to religion…In
the domains which seem to us [moderns] the most useful, the

8 Benjamin Constant ‘The Liberty of the Ancients compared with that of the Moderns’ (1819), in Biancamara
Fontana (ed.) Benjamin Constant: Political Writings (Cambridge, Cambridge University Press, 1988), p.307
9 Constant (1819), p.309. “Rather new,” perhaps, but certainly not – as he seemed to recognise – novel in
Constant’s work: the debate between Adam Ferguson and Adam Smith being drawn on similar lines over more than
a generation before (see, for example, Fania Oz-Salzberger ‘The Political Theory of the Scottish Enlightenment’, in
Alexander Broadie (ed.) The Cambridge Companion to the Scottish Enlightenment (Cambridge, Cambridge
University Press, 2003), Ch.8).
10 Constant (1819), p.311
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authority of the social body interposed itself and obstructed the will
of the individuals.11

In so far as Benjamin Constant understood it, the freedom of the ancients to participate in the
public realm meant, consequently, no freedom from the burdens and the scrutiny of life in the
public realm. As Bernard Crick has said, the “place of politics as the most important and
glorious object of human activity,” was the assumption which underpinned the classic republics
of antiquity.12

By way of contrast Constant saw that for the moderns not the sharing of social and political
power with one’s equals but rather “the enjoyment of security in private pleasures” was the aim:
and so, “they call[ed] liberty the guarantees accorded by institutions to these pleasures.”13 This
was to say that the freedoms cherished by the moderns were those which protected the individual
in his peaceful, private enjoyment from the intrusions of government:

…the right to be subjected only to the laws, and to be neither
arrested, detained, put to death or maltreated in any way by the
arbitrary will of one or more individuals. It is the right of everyone
to express their opinion, choose a profession and practice it, to
dispose of property, and even to abuse it; to come and go without
permission, and without having to account for their motives and
undertakings. It is everyone’s right to associate with other
individuals, either to discuss their interests, or to profess the
religion which they and their associates prefer, or even simply to
occupy their days or hours in a way which is most compatible with
their inclinations or whims. Finally, it is everyone’s right to
exercise some influence on the administration of the government,
either by electing all or particular officials, or through
representations, petitions, demands to which the authorities are
more or less compelled to pay heed.14

Whereas the influence of the ancients was direct, through their participation in government, for
the moderns their influence was only minimally felt, “at fixed and rare intervals,” and even then

11 Constant (1819), p.311
12 See Crick’s excellent introduction to Machiavelli’s Discourses: Niccolò Machiavelli (with an introduction by
Bernard Crick) Discourses (London, Penguin Books, 2003), intro. p.15, p.46
13 Constant (1819), p.317
14 Constant (1819), pp.310-311
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