JAG the political constitution


JAG the political constitution

JAG was an important public lawyer. 

The Political Constitution- 1) conflict- 'conflict is the heart of the modern society' 'wearisome is the condition of humanity'(we are individuals but that live in a collective) 'sets up conflict from which we can never be free' 

2) power and reality- 'the language of old liberal democracies' 'elaborate facades constructed to fool most of the people most of the time or as at best out of date pieces of stage paraphernalia which someone had forgotten to clear away with the other impediments of prof Dicey's England' 'trapping of democracy concealed rather than adorned the body politic' (true of the 20th C).

'we sought to free ourselves from the tentacles of the natural lawyers, the metaphysicians and the illusionists who gave the impression that the working of the constitution was something all done by mirrors, by sleight of hand and by the use of 19th century language based on 18th century concepts.' 

3) his interlocutors- Lord Hailsham, Lord Scarman (suggested constitutional reforms, BoR and codify it) and Ronald Dworkin. He responds to these. 

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Political objection

4) Griffiths political objection- Bills of rights are statements of political conflict pretending to be resolutions to those conflicts. Written constitutions pass political decisions from the hands of politicians to judges. 'Law is not and cannot be a substitute for politics' Political decisions should be taken by politicians. 

Hes saying it creates conflict. Law is a form of politics as theyre a response to conflict. Doesnt want to see political decisions taken away from the politicians as they can be changed. 

'They merely pass political decisions out of the hands of politicians and into the hands of judges and other persons.'

How should the failings of the political system be addressed? 'Only political control, politically exercised, can supply the remedy.' ie through more politics.

5) Griffiths philosophical objection- 'There are no overriding human rights... instead there are political claims.' Rights are just political claims. Rights talk presents questions of politics as questions of law. 'A continuous struggle between the rules and the rule about the size and shape of these claims and between warring interest groups and that the struggle is political throughout.'

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Political objection

'I am very doubtful about the value of the exercise of telling judges or other legislators that they should look towards the ideals of justice, truth and beauty in their search for the right solution to difficult cases.' Dont expect judges to make decisions for the moral good of the community. 

Moral standards of the community? 'I do not believe these standards exist'.

6) The British Constitution- 'the constitution of the UK lives on, changing from day to day for the consitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happens that would be constitutional also.'

Are there no fixed principles? 'I do not believe in generalised a priori principles. I have them filling my pockets and coming out my ears.' He thinks principles are conflicts so we are back where we began. 'And we are back where we began. Politics is what happens in the continuence or resolution of conflicts and law is no more than one means, one process, by which those conflicts are continued or may be temporarily resolved.' Conflict. 

Fantasy to resolve conflicts. No sharp distinction between politics and law. Doesnt think it should be in the hands of judges. 

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Criticisms of him

1) Does Griffith overstate the existence of unavoidable disagreement? Otherwise community wouldnt be mainly stable.

2) Is it complacent to rely so heavily on political restraints? May think no rule for courts which is wrong. 

3) Is there any normative content ie any ought requirement to Griffiths political constitution? Believe there is no sharp distinction between law and politics, constutions must expand opportunities of political debate, Parliament is the most legitimate area for such debate and any arrangements that limit political debate should be avoided. PRobs believe in PS and formal account of rule of law and separation of powers. 

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