In 1957, Ernst Kantorowicz published The King’s Two Bodies (KTB), a deep and penetrating analysis of the relationship between monarchy and the public realm. In this magisterial work, Kantorowicz explained with unmatched clarity the language of the medieval theologians and jurists, from dignitas to fisc to corpus mysticum, all of which have passed out of the bounds of our quite technocratic political language, but have, in many ways, shaped and laid the foundations for its articulation. The corpus mysticum, for instance, made the very notion of ‘popular sovereignty’ even thinkable, not merely conceivable. This article is an attempt to distill my research into Kantorowicz’s theory of the ‘King’s Two Bodies’, of the corporeal function that kingship played, in both the continuity of a people and in the question of the acting body, to show what the nature of monarchy actually is, beyond a simple constitutional component.
In Kantorowicz’s analysis, there are three consistent themes: first, the synecdochical relationship assumed between the physical body of the king and the unphysical ‘body’ of the people over whom he ruled; second, the important function of continuity that the office performed; and third, the normative relationship between ruler and ruled. However, before turning to these three themes, it is important to note that Kantorowicz’s analysis revolves around two significant observations: first, that there was an awareness of the difference between ‘the King’, meaning of the office of monarch, and ‘the king’, meaning the actual person who occupied that office. This is the origin of Kantorowicz’s chosen title: ‘that by the Common Law no Act which the King does as King, shall be defeated by his Nonage. For the King has in him two bodies, viz., a Body natural, and a Body politic’, a juridical fiction which, logically, ‘conveys “immortality” to the individual king as King, that is, with regard to his superbody’ in such a way that, in one court case, loyalty to King Henry VIII could be demanded as if he were ‘still “alive” though Henry Tudor had been dead for ten years’ (KTB:: 7, 13-14).
The second significant observation is that of the role played by Christian theology in the creation of a language of organic unity between ruler and ruled. It was St Paul’s First Letter to the Corinthians (chapter 12, verses 12 and 27) that affirmed the image of the Church as a single body, with Christ as the head, with whom the laity enjoyed unity, but the systematic expression of such a unity was St. Augustine’s to make. He referred only ever to the Church as the ‘Body of Christ’, or in his native Latin, Corpus Christi – though interestingly, the phrase the ‘mystical body of Christ’ was not St. Augustine’s but was coined much later. Regardless, Corpus Christi refers to the idea that Christ ‘is to be taken no longer as an individual, but in His fullness, that is, with the whole Church, with all of the members, of whom He is the Head, as constituting one unit, one whole, one person’ (Grabowski, 1946: 73-75). It is important, however, to bear in mind how one individual person might join the body of the Church: through confirmation, and communion; in other words, through express desire, and continual affirmation of membership. Such an act ‘constitutes a spiritual entity which is [Christ’s] Body here on earth’ that results in ‘the incorporation into the Body of Christ’ (Grabowski, 1946: 84-85). As Kantorowicz shows, such doctrine was used as the basis for the relationship between people and k/King. Though Pope Boniface VIII intended to reassert the Papacy above secular powers, and remind them of their ‘purely functional character within the world community of the corpus mysticum Christi’ [the spiritual body of Christ], it was the implication of ‘the Lord’s two bodies’ that would inform the emergent doctrine of the k/King’s two bodies, to such an extent that Kantorowicz considered it to mold ‘most significantly and decisively the political thinking in the high and late Middle Ages’ (KTB, 194-206):
To summarize, the notion of corpus mysticum, designating originally the Sacrament of the Altar, served after the twelfth century to describe the body politic, or corpus iuridicum, of the Church, which does not exclude the lingering on of some of the earlier connotations. Moreover, the classical christological distinction of the Two Natures in Christ… has been replaced by the corporational, non-christological concept of the Two Bodies of Christ.
It was in the wake of this theoretical shift that the secular powers, competing with the Church for supremacy, were able to adopt the language of the state as a body, with such phrases as corpus Reipublicae mysticum, which allowed the jurists to arrive ‘like the theologians, at a distinction between corpus verum – the tangible body of an individual person – and corpus fictum, the corporate collective which was intangible and existed only as a fiction of jurisprudence (KTB: 207-209). It is important to note here that the unique transformation brought about by the turn to the Christological terminology is specifically the idea of the body politic as a mystical body, not merely a body coterminous with the physical individuals that composed a political community. With this theoretical and theological background informing both the emergence of the doctrine of the k/King’s two bodies, and the internal relationship between them, this creates much of the intellectual condition for the emergence of ‘the people’ as a mystical body abstracted from its component parts.
Focusing, however, on the k/King’s two bodies, the synecdochical relationship between the King and the people was a fiction well-theorised in medieval theology. In the mid-fifteenth century, it was generally acknowledged that ‘an attack against the king’s natural [physical] person was, at the same time, an attack against the body corporate of the realm’, with a qualifying difference of ‘“one [body] descending from nature, the other from the polity”’ (KTB: 15, 46). Drawing on Anthony Black’s comments that legality relied on a certain conception of a people as both a trans-temporal entity that those laws applied to, as well as the source of the authority of laws, the relevance of a people’s corporality makes sense when we observe that ‘“Laws, and not the person, make the king”… a statement well known to Canonists; and according to the lex Digna itself the emperors confess: “On authority of the Law our authority depends”’ (KTB: 150).
If the King is a part committed to the whole of ‘the people’ as a single entity, then it must be remembered the authority of the King is derived from – whilst also being somewhat concurrent with – that entity’s will. After all, as one French jurist claimed, ‘the French king, like the Roman emperor, “had all the rights, especially the right pertaining to his kingdom, shut in his breast”’ (KTB: 153). Of course, this manifested differently across peoples: famously, in England, ‘the people’ was present in specifically in the King in Parliament; just as ‘the comitatus or county took visible form in the comitatus or county court, so the realm took visible form in a parliament’ (Maitland, 1901: 133). This held, however, for the English jurist Henry de Bracton (1210-1268) a paradox: ‘either the king is sovereign or no; if he be sovereign then he is not legally below the law, his obligation to obey the law is at most a moral obligation; on the other hand if he is below the law, then he is not sovereign, he is below some man or some body of men’ (cited in Maitland, 2015: 101). Although this was mostly resolved by the juridical separation between king-as-person and King-as-office, as noted above, it did eventually lead to the question of where sovereignty lay.
Of course, all of this relies on the recognition that there is an entity of ‘the people’ that is physically separate from the king, but ‘the king’s body politic could be the realm as a body politic – with the king as the head and the subjects as the members – or it could be the office of kingship – the dignity’ (Fortin, 2021: 5), . Joseph Canning has also noted the rise in medieval political thought of the distinction between the king and the people over whom he ruled: ‘notions according the kingdom an existence distinct from that of its king, organological views of society organised into a corporate body, and views of rulership as public office’ created the capacity to think that ‘the concept of a royal office, whose purpose was to serve the common good, involved the notion that the regnum or populus had a separate existence from that of its monarch’ (Canning, 2009: 64-65). This especially became emphasised in the later Middle Ages when (KTB: 193):
the centre of gravity shifted, as it were, from the ruling personages to the ruled collectivities, the new national monarchies, and the other political aggregates of human society. In other words, the exchanges between Church and State continued; but in the field of mutual influence, expanding from individual dignitaries to compact communities, henceforth was determined by legal and constitutional problems concerning the structure and interpretation of the bodies politic.
This is a significant development, as it coincided ‘with that moment in the history of Western thought when the doctrines of corporational and organic structure of society began to pervade anew the political theories of the West and to mold most significantly and decisively the political thinking in the high and late Middle Ages’, a change capitalised on by Baldus de Ubaldis in his definition of a ‘populus, the people, as a mystical body. He held that a populus was not simply the sum of individuals of a community, but “men assembled into one mystical body” … a body or corporation to be grasped only intellectually, since it was not a real or material body’ (KTB: 199-210). Despite the emergence, however, of the body politic as an ‘intellectual body’, the k/King remained the physical representation of that body politic in the world, as ‘the polity itself, or the mystical body of the realm, could not exist without its head’ (KTB: 227); hence, whilst the trend developing was to admit that ‘a people’ was a real entity separate from the physical body of the king, it was not thought to be capable of existing or, importantly, acting without something or someone through which it can be embodied.
Interestingly, Marie-France Fortin has recently shown that Kantorowicz’s analysis reveals that, whilst the power of dignity, dignitas, conferred upon the prince by an ‘immortal polity’ (KTB: 397), was concurrent with the office of kingship, it was ‘the Crown, on the other hand, [that] connoted a more general, public and communal sphere’ and was ‘incomplete without the other members of society’ (Fortin, 2021: 2). We can turn here to the second theme of Kantorowicz’s analysis, that of continuity and the problem that the physicality of ‘the king’s two bodies’ created; as Kantorowicz noted, ‘the concept of the “king’s two bodies” camouflaged a problem of continuity’ and it would be a ‘mistake to assume that the new philosophic tenet produced, caused or created a new belief in the perpetual continuity of political bodies’ (KTB: 273) – this was a perennial issue in political thought, and the continuity of the king’s two bodies is more of a product, than a cause, of such an issue.
Indeed, ‘the practical needs of kingdoms and communities led to the fiction of a quasi-infinite continuity of public institutions’ and that ‘practical needs produced institutional changes presupposing, as it were, the fiction of an endless continuity of the bodies politic’ (KTB: 284, 291). This is not to say the k/King was the only source of continuity: as with above, the law was seen a particularly reliable mechanism by which ‘every plurality of men collected in one body’ could be treated as a ‘juristic person, of distinguishing that juristic person clearly from every natural person endowed with body and soul, and yet of treating a plurality of individuals juristically as one person’ (KTB: 306).
On the topic of the relationship between law and custom as methods of continuity for a body politic, St. Thomas Aquinas’ writings are particularly revealing. He claims, for instance, that ‘when a thing is done again and again, it seems to proceed from a deliberate judgement of reason. Accordingly, custom has the force of law, abolishes the law, and is the interpreter of law’ (1988: 80). As conservatives, I think we ought to be particularly sensitive to St. Thomas’ writings on this topic, especially as our modern world often forces us to see the law and tradition in conflict. Nonetheless, in the medieval era, the law increasingly became the source of legitimacy for public actions, be they of the King or any other public office.
However, the law could not resolve the issue of action and decision in and of itself, especially as there were increasing attempts to incorporate the ‘ruler’s will’ in the legal system, to the extent that the fourteenth and fifteenth centuries tussled with this will when compared to the ‘rights of the community’, with the kingship as an office ‘established with the specific purpose of securing the preservation and well-being of the communities which the ruler served’ (Canning, 2009: 162-166). Whilst I turn to the normative relationship between ruler and ruled shortly, here we can focus on Kantorowicz’s important observation that, as a product of the belief in the continuity of the people ‘as an universitas “which never dies”’ (KTB: 314), there arose the significant question of whether the corporate realm existed between the death of one king and the coronation of another. Whilst the earlier Middle Ages imagined that, due to the intertwining between Church and State, ‘the continuity of a realm during an interregnum had been sometimes preserved by a fiction: Christ stepped into the gap as interrex and secured, through his own eternity, the continuity of kingship’, the increasing tendency of Popes to claim authority as interrex made the fiction politically dangerous. Instead, the fiction arose of the sempiternity of the Crown (KTB: 334-335, 341-342):
In the phrase “head and Crown” the word Crown served to add something to the purely physical body of the king and to emphasise that more than the king’s “body natural” was meant; and in the phrase “realm and Crown” the word Crown served to eliminate the purely geographic-territorial aspect of regnum and to emphasise unambiguously the political character of regnum… briefly, as opposed to pure physis of the king and the pure physis of the territory, the word “Crown,” when added, indicated the political metaphysis in which both rex and regnum shared, or the body politic (to which both belonged) in its sovereign rights.
As Fortin observes, the melding of the two symbols of King and Crown allowed elements of that perpetual community that the King ought to have embodied – the people – to pass into the Crown, such as the eternity of the office, and the corporate realm of the body politic (2021: 8). As a result, ‘in the later Middle Ages the idea was current that in the Crown the whole body politic was present… in this respect indeed the Crown and the “mystical body of the realm” were comparable entities. Neither one nor the other existed all by itself “in the abstract” and separate from the constituents’ (KTB: 363). We see here, then, a similarity to the Aristotelian notion of the polis as an embodied corporeal people, as well as a comparison to John Ma’s analogy of the polis as ‘social memory’; a reliance on a physical presence, be it king, king-in-parliament, or so on, meant the continuity of a people’s acting body had to be reflected in an equally continuous physical presence. In this respect, this was part of the conflation of Crown and King that Fortin analyses, in that each symbol acted complementary to the other: whilst the Crown was the eternal symbol, the King could be embodied in the king. This theoretical move was reflected most clearly in the emergence of the phrase ‘The king is dead! Long live the king!’ which, whilst deceptively simple, ‘powerfully demonstrated the perpetuity of kingship’ by suggesting an unbroken embodiment of the King that did not ‘end’ with one king’s death (or, ‘demise’) and another king’s accession (KTB: 412). Regardless, ‘the Crown… could hardly be severed from the king as King…. It remained possible, for example, to personify the Crown which, representing something that touched all, stood in many respects for the whole body politic’ (KTB: 372, 383).
This brings us to the third theme of Kantorowicz’s work, that of the normative relationship between ruler and ruled. We can see clearly the synecdochical relationship that arose out of the organological, ‘corporate realm’ thought, as well as the use of the office of kingship to reflect a theorisation of the ruled people as a continuous entity, but this has not really answered the question of why an embodiment of that people is necessary. Whereas Aristotle’s theory of the polis as necessary for the bios and therefore the highest expression of the common good, the concomitant principle to the theorisation of a continuous people was one in which ‘the idea of a state existing only for its own sake was foreign… the very belief in a divine Law of Nature as opposed to Positive Law, a belief then shared by every thinker, almost necessitated the ruler’s position both above and below the Law’ (Kantorowicz, 2016: 144). Though the concept of popular sovereignty was historically distant, the awareness of the separability between the ruler and the ruled, at least on a practical level, had to be balanced with the necessity of the people’s capability to act as a political body. The Divine Right of Kings was certainly one answer, as ‘the king acts for the people which has been committed to his care by God and which cannot act for itself’ (Canning, 2009: 21). Just as the idea of Christ as the interrex declined, so too did the religious foundation for kingship, but the organological concept still posited that the King was the head of the body of the people. To justify the capacity for the King to act, not on behalf of the people, but as the people, there arose a particular conception of the universitas, the body corporate, as a legal minor. Largely a product of rediscovered Roman law, the conflation of ‘madmen, children and cities’ under an edict meant that (KTB: 374):
when, in the course of the thirteenth century, the corporational doctrines were developed, the notion of “city”, civitas, was logically transferred to any universitas or any body corporate, and it became a stock-in-trade expression to say that the universitas was ever an infant and under age because it needed a curator.
Importantly, as this idea matured, it was transferred to the symbolic entity of the Crown, to the effect that ‘as a perpetual minor, the Crown itself had corporational character – with the king as its guardian, though again not with the king alone, but with that composite body of king and magnates’ (KTB: 381).
What matters here is the relationship given between ruler and ruled that allows for the concentration of political action in the king; the corporeal embodiment of a people in the political world in a single person in such a way that allowed the people to act was due to that people’s inability to act for itself, owing to its legal immaturity as a single corporate body, and not merely because of its physical disaggregation as a multitude of individuals. As a result, ‘the king appeared as the animate instrument of a fictitious, and therefore immortal, person called Dignity’, meaning ‘the dogma of a political Incarnation, a noetic incarnation of the Dignitas or of the Body politic’ (KTB: 445). To compare this to the polis, then, whereas the people could act as a political community through a deliberation with consideration for the common good, under kingship the people were incapable of doing so, under the prevailing legal fiction, resulting in a concentration of decisionist power in the office of King. This was developed into the sleeping sovereign thesis by early theorists of popular sovereignty, but prior to the emergence of popular sovereignty as a concept, the necessity of an acting person required the existence of the office of King and the concept of Crown.
The King, as the office, was the embodiment of the entire body politic; embodied, of course, in the physcal body of the king himself (or queen herself). This is why the political community of the people lived and died with the monarchy – not the specific monarch, because to do so would risk admitting that the people could die. This was the inspiration behind Thomas Hobbes’ famous Leviathan frontispiece, in which an enormous person was composed of the very individuals over whom he governed; Hobbes was not writing and imagining the grand body of the body politic in a vacuum, and did not create the idea from the abstract, but was speaking to a long and fruitful tradition of treating the people as a single entity with a will that would allow that people to actualise its desires.
This tradition is, as I hope to have shown, the legal fiction that the body of the king, as a temporary and temporally-bound entity, is merely the physical embodiment of the King, which is the eternal and spiritual office of the entire body politic over which a monarch reigns. Our modern ideas of popular sovereignty would never have arisen without this fiction, of the original meaning of the phrase, Rex Est Populus: The King is the People.
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‘The Bad Ethics of the Machine’ (Magazine Excerpt)
With the recent debates surrounding AI improvement and the somewhat imminent AI takeover, I thought it would be interesting to return to the 20th century to analyse the debates on the rise of the machine and what we can learn from it today.
The early 20th century marked a time when the technological revolution was in full swing. With radio, mechanised factory work, and the First World War marked the new era of mechanised warfare, the intellectuals of the day were trying to make sense of this new modernised society. With the speed at which the changes occurred, people’s conception of reality was lagging.
The machine has narrowed spaces between people – the car allowed people to traverse space faster, and radio and telephone brought closer and practically instantaneous access to one’s family, friends, and acquaintances. The jobs were mechanised and people, as idealised by Marx, had the potential of being the ‘mere minders of the machine’. We are now entering another era. A time when Artificial Intelligence has the potential to replace most jobs. This is what Fisher in Post-Capitalist Desire has considered an opportunity for a post-scarcity society. But is this possible? Or rather should we heed Nick Land’s warning in Machinic Desire where he advised:
“Zaibatsus flip into sentience as the market melts to automatism, politics is cryogenized and dumped into the liquid-helium meatstore, drugs migrate onto neurosoft viruses, and immunity is grated-open against jagged reefs of feral AI explosion, Kali culture, digital dance-dependency, black shamanism epidemic, and schizolupic break-outs from the bin.” (Land, Fanged Noumena, 2011)
But let’s thrust away the shatters of this neo-automation and return to 1912, the time when this has only just begun.
Gilbert Gannan, in an article for Rhythm, wrote:
“Life is far too good and far too precious a thing to be smudged with mechanical morality, and fenced about with mechanical lies, and wasted on mechanical acquaintanceships when there are splendid friendships and lovely loves in which the imagination can find warm comradeship and adventure, lose and find itself, and obtain life, which may or may not be everlasting.” (Gannan, 1912)
In a quasi-perennial argument, he claims that mechanical morality and mechanism, in general, will never replace the real deal – the real concrete friendships and those we love.
This is an excerpt from “Mayday! Mayday!”. To continue reading, visit The Mallard’s Shopify.
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In Defence of the Profits of Oil and Gas Companies
Few companies today are less popular than those in the oil and gas industry. Shell, ExxonMobil and British Petroleum are all resented for the great profits they are now making. 79% of the public back yet another windfall tax to get these profiteering companies to subsidise their bills. This is despite the fact the existing levy, with pre-existing taxation, is already an extortionate 65%, following Rishi Sunak’s increase to it in May. No doubt, with the forthcoming £130bn plus price cap, further increases to the windfall tax will be touted as the means to pay for it.
Increasing the windfall tax on oil and gas companies’ profits would be wrong: any windfall tax on these companies’ profits is wrong. Individuals, and the companies they constitute, have a right to the windfall gains of their labour or property, even if they haven’t done anything to earn them. To seize these gains is to violate their rights, to use them unjustifiably. Any such levy must therefore be abolished, and any increase in them opposed.
Let us proceed to bolster the truth of this liberal position by refuting the principal argument for the existing windfall tax, and by deduction all increases too. We start with the contention that the profits of energy companies are ‘undeserved’. When Sunak increased the levy in May he argued it was fair because the companies’ increased profits have not come through “changes to risk-taking or innovation or efficiency”, but rather, have come as a “result of surging global commodity prices”. The essence of this argument is that individuals are not entitled to the income they have not had to do anything for. Although not Marx’s, Sunak’s reasoning shares with his the idea entitlements to incomes cannot be legitimised simply because they have arisen through free exchange. Some work needs to be done to confer deservedness.
It is then argued that the poor need support to get through the cost of living crisis, more than the companies’ shareholders need dividends, and this is a reason for the government to seize their profits via windfall taxation. Indeed it is predicted two-thirds of households could be in fuel poverty by January of 2023 (without further intervention). Together, the undeserved profits of oil and gas companies, and the needs of the poor, allow for a windfall tax for increased benefits to help the impoverished with their energy bills.
The problem with this argument for the windfall tax is it proves far too much. Consider this example: across the country the average salary of a plumber is £35,862, putting such tradesmen’s earnings 14% above the median. Now imagine for some reason half of all plumbers quit the trade and decide to become waiters instead. The remaining plumbers would see their wages increase significantly, even though they’re doing the same hours and work as before. Let us assume our plumber ends up being paid a wage, such that his household expenditure is £45,437.60, putting him in the ninth decile of spenders. This allows his household to spend about £11,117.60 on restaurants, hotels, recreation and culture, as of 2019.
According to Sunak’s argument, the plumber should be subject to a windfall tax. Both criteria are satisfied. First, the plumber has done nothing to see his salary increase. Second, the poorest households, who really struggle to pay for their food and increasingly large fuel bills, clearly could do with the money more. Indeed, the poorest decile spends only about £1,705.60 a year on food and non-alcoholic drinks, less than a fifth of the plumbers’ spending on leisure, and that was in 2019!
This is an unacceptable conclusion. Individuals have a right to the windfalls they derive from the voluntary exchange with customers and employers. To deny such a proposition is to accept whenever there is a shortage of labour in your trade or profession you are not entitled to bargain for a higher salary, or rather that the government is entitled to tax away all the additional income you may receive. Or at least it may tax it away insofar as others’ needs are greater than your own. I doubt my reader will want to embrace this. I believe this is because most of us implicitly reject the idea that individuals are only entitled to money they have worked for, or rather are only entitled to money insofar as it was proportionately worked for.
Consider the man who stumbles across truffles in his garden, he hasn’t worked for the money he receives on their sale; it’s sheer luck. Nonetheless, we accept he is entitled to their windfalls and should pay no more tax than anyone else with the same income. Equally, we accept people are entitled to the windfall on their car if it has become very popular, despite it being sheer luck such conditions have arisen. Indeed, it is sheer luck that beauty models are born beautiful. Yet no one is proposing taxing away their genetic-based windfall, with the bar being the income the average person would get going down the catwalk. I contend that the root of these beliefs is a commitment to defending the freedom of the individual to make as much money as he so can, in whatever activity he so chooses – even if sheer luck is the cause.
By analogy then, if individuals, e.g. our plumber, are entitled to their incomes from sheer luck, then so too must the oil and gas companies be entitled to their profits from sheer luck too (from globally higher commodity prices). The alternative would be to live in a dystopian world where each job, trade, profession and commodity market has a differential tax rate to eliminate all windfalls (for why allow a part to be kept). To a few this may appear but a minor inconvenience. However, as F. A. Hayek has explained, this would lead to the impoverishment of society, as prices would be unable to direct resources to their most efficient uses.
Consider, due to potato blight, the price of wheat increases dramatically as consumers switch to pasta. Today farmers of wheat would receive far larger profits as a result, due to the high price, despite having done no more work. This incentivises other farmers to shift to wheat production, from less urgently demanded crops, eventually pushing supply out, bringing the price of pasta back down. Resources are shifted from less valued to more valued uses and thus consumers are better off. If the state insisted, since wheat farmers are conducting no more work, efficiency-savings, investing or risk-taking, they should receive no higher price for their crop, the market would take far, far longer to adjust, and in the meantime, people would be worse off. Given these adjustments are always occurring across the economy, consumers would be permanently worse off if all windfall gains were taxed away.
Indeed it is even worse than this concerning the labour market. If half of the existing bin men decided to leave their jobs today the remaining bin men would see their wages go up, which would encourage new individuals into the role. If this wage weren’t allowed to go up though there would be shortages of bin men. To stop rubbish from going uncollected the state would have to conscript people into the position: These bin men would be slaves. Such is the conclusion one is forced to, as Hayek maintained, if rewards correspond not to the value which their services have for their fellows, but to the moral merit or desert the persons are deemed to have earned.
Clearly, if applied consistently, the principle no one should receive windfalls would impoverish the people, and require the conscription of individuals into many jobs. No man committed to living in a free society can thus permit the state to operate on such reasoning. Individuals have a right to their windfall gains, whether they be plumbers, or indeed the owners of oil and gas companies. The windfall tax must therefore be abolished, and failing that any attempts to increase it must be resisted every step of the way. Only then will the extraordinary profits of oil and gas companies remain where they should have always rightfully belonged: In the bank accounts of the shareholders.
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Labour’s Plans for Constitutional Reform
First principles
We need to begin by understanding what a constitution is and what it ought to do. The history of the constitution as a political idea is one in which a single term came to be associated with the twin principles of the “spirit” of the people over whom politics is exercised, and the “health” of the body politic from whom the government is drawn.
It is no coincidence that the word “constitution” emerged in politics to refer to the central laws (written or otherwise) that govern a community, during a period of increased use in the medical community to mean “health”.
A simple Ngram chart shows that, whilst “medicine” and “constitution” have an established history of coterminous use, from the mid-1720s onwards – a time of increasing popularity of focusing on constitutions in the modern sense as a written set of basic rules upon which all laws should be based – the use of constitution skyrockets.
Carl Schmitt wrote in the 1920s that a constitution ought to be a reflection of the people, as they exist simultaneously above and below the political order that seeks to represent them in the world. Above, because like Hobbes’ Leviathan they tower over all political figures in judgement; below, because they are the very foundation upon which all political institutions can be built. If a people ceases to exist, then the institutions become hollow machines turning and maintaining themselves for nobody but themselves. And it must be remembered that institutions, as all things incorporated in some way, become entities in themselves.
A constitution is, therefore, simultaneously the spirit and mind of the people. The spirit, because it captures what Montesquieu attempted to identify in L’Esprit de Loi, the spirit of the laws; the truth that there is something intangible behind the tangible laws by which political institutions operate. In other words, rather than analysing the laws that existed, Montesquieu asked why those laws existed, rather than some other set of laws, in the political community in which they were practised. Why did the English have the common law, when the French had parlements? Etc.
The mind, because the constitution moves beyond unthinking instinct and into the strategic realm of forward thinking, extended temporal existence and predictable security. As Montesquieu feared of tyranny, and as Hegel recognised of Spirit in Man’s infancy, when the law becomes the domain of a single person, fear is the spirit of the legal order because there is no predictability, no consistency. Arbitrariness becomes the basis of decision making. It was not fear as fear of the government itself, but fear of the inability to know what the consequences from the government might be.
A constitution, then, speaks the unspoken sentiments of a people and does so in a consistent and unifying way.
The question that arose in the enlightenment over whether this speaking constitution should move to the page and transform from an unwritten to a written document was, of course, central to what Yuval Levin called the great debate between Edmund Burke and Thomas Paine. Whilst Paine railed against what he saw as the “tyranny of the dead” when Burke defended tradition and custom, Burke gently replied that it is the very dialogue that thrives between the living and the dead that produces freedom; just as a traveller in a forest might wander from the beaten path and find a lush grove, so too might he get lost in a swamp. Innovation and the freedom that experience brings with it is possible only when there is a point from which you begin.
Instead, said Burke, it was that very tyranny – of a dead set of people from a particular moment in time – that would be cemented in a written constitution. Rather than allowing for the continual expression and interrogation of custom and tradition that comes with an unwritten constitution, a codified one would narrow the temporal horizon of a people into a strict moment in time in an attempt to speak forever. Some of the American Framers argued that a way around this would be to revise the constitution at the end of every generation – roughly 19 years or so. Sir Roger Scruton put the problem very (and typically) eloquently when he said that the Treaty of Rome was written in a year that’s gone for a circumstance that has passed by a group of people that are dead.
The two great constitutions that emerged in the late-1700s – in America and in France – had two very different goals that determined the direction in which they moved. America, said the political historian Hannah Arendt, framed a constitution on a set of institutions that already existed expressing a people that already had a heritage. For that reason, the American constitution can be said to have achieved those two goals around which this briefing note has thus far revolved: the expression of the spirit and mind of a people. France, on the other hand, attempted to create a people through the act of constitution: the Bretons, the Provencals, the Roussillions, the Orleanais, all were to be washed away and the remnants dissolved in the universal humanity of la France. The French constitution preceded a people; the American constitution expressed one.
Yet the constitution that has thrived where even the American one has failed has – or had – been the British one.
In their obsession with formalism and written rules, most psephologists have made the mistake of thinking that Britain’s constitution, uncodified though it is, can be found in the many documents that stretch from Magna Carta through the Bill of Rights to the Act of Union to the Great Reform Acts to the Parliament Acts to the Human Rights Act. No – to do so is to mistake a man’s words for the man himself. These are not Britain’s constitution, but the consequences (and in many places, the mutilation) of the constitution itself.
What is Britain’s constitution?
It is the Parliament itself.
Parliament, in the synecdochal slip of the tongue common in modern politics, is not the House of Commons, nor the House of Lords. Not even is it the building in which those assemblies meet. Parliament, as understood by Bagehot, Dicey, Maitland and all the eulogists of Britain, exists when the three traditional branches of British government are assembled in one place: the Monarch; the Lords; and the Commons. Hence, the momentous occasion when the Monarch delivers his speech to the Lords and Commons, Parliament is said to be together.
But why is Parliament Britain’s constitution? Because, properly understood, Parliament is the voice of people in all of its aspects. The Monarch is the people embodied, a singular head of state who gives to the constitution the only missing ingredient from spirit and mind – a body. He is the body of the politic. The Lords are the people as understood by Burke, as a transtemporal entity who speaks for the country as a physical entity – hence why it was tied to land – and a spiritual entity – hence the Lords Spiritual – and a legal entity – hence the Law Lords. The Commons, finally, are the people as understood by Paine, as the vocal element of the constitution, demanding changes in the moment and transient in its demands.
The British Parliament is, and always has been, the constitution. The doctrine of Parliamentary sovereignty reflected this fact, that no power exists above Parliament – as the Monarch, Lords and Commons in one.
Labour’s constitutional reforms: past and present
This was undone entirely by New Labour. The greatest acts of constitutional vandalism – the creation of the Supreme Court, the Human Rights Act, the project of devolution, the reforms to the House of Lords – all committed by the forebears of the current administration upended this balance in a way none but constitutional historians loyal to the idea of Britain could have predicted.
Each of these deserves an invective all their own, but the simple fact is that each of these altered the operation of Britain’s constitution in different ways, but creating a legalistic straightjacket around Parliament: the Supreme Court subverted the doctrine of parliamentary sovereignty; the Human Rights Act made that Supreme Court loyal to a power beyond the boundaries and popular
control of Britain; devolution created parallel laws applying to the same citizens at different times and in different places across the country; and the neutering of the hereditary aristocracy resulted in an upper chamber dedicated to ambition, avarice and cronyism.
Thus the supreme entity of this nation – Parliament – has ceased to act as a unitary government and now must act as one amongst many. And by extension – and by design – the constitution has died.
This is the scene into which the new administration enters, ready to finish the job through solutions to a problem of its own making. One of the greatest architects of this situation, Gordon Brown, penned a document aimed at creating a “Reformed United Kingdom” by empowering the different regions of the United Kingdom to be competitors to the central government in Westminster, whilst the absurd phrase of “devolution deserts” now seeks to spread the insanity of an unequal legal landscape across the whole map of the British Isles.
These plans will make a legal reality the idea that Westminster is the English parliament and merely one amongst many. When Brown began his document by stating that “the crisis we face in Britain is not just short-term – it is deep-seated”, he did so without a hint of irony.
Why?
The reader might be left thinking, why? Why did New Labour do all of this, and why does Labour now seek to carry us further down this road?
By design or not, the New Labour government destroyed the constitution of this country because it blew apart the unity needed to underpin the idea of a people. Alongside the administrative vandalism of devolution – which exacerbated the delusions that the Scots and the Welsh, whilst culturally different to the English, are not legally the same nor subjects of the same crown – the surrendering of the nations courts’ abilities to mediate between its citizens to a foreign power only made worse the emerging sense of dual loyalty that was gestating in an increasingly multicultural Britain. The amazement that integration has ceased in Britain whilst the legal tradition of this country has been hollowed out has never yet joined the dots to arrive at the simple conclusion that integration is impossible in the current administrative state masquerading as a constitution.
Yet this is not the only reason Labour now pursues these goals. Indeed, it does so because it must. We have moved from circumstances in which a constitution might have been written to express a people that already existed – indeed, the people, understood properly as a transtemporal entity, never old or dying nor young or being born, that has occupied these islands for centuries – to circumstances in which a constitution must be written to summon a people into being.
We are France at the height of the revolution. The idea of Britain is being re-written, and re-constituted, because Britain has died. The elegists – Scruton in his England, an Elegy; Hitchens, in his The Abolition of Britain; and Murray, in his Strange Death of Europe – mourned a people that has passed away. Labour must now begin the process of constructing a new one, based on “values” and “identity”. And it must do so because it began this process 25 years ago.
