The English Constitution.

• Author: Tomkins, Adam
• Position: Book Review

THE ENGLISH CONSTITUTION. By Walter Bagehot. (1) Edited by Paul Smith. (2) Cambridge University Press. 2001. Pp. xxxii, 253. $21.00

Of all the works of nineteenth-century British constitutional scholarship that have come down to us, two stand out. Among lawyers it is Dicey (4) that continues to be revered above all others. But among communities of political scientists and journalists it is Bagehot who has that honor.

The centenary of Bagehot's English Constitution was marked in 1967 with the publication of a new edition, edited by Richard Crossman. Crossman was a leading minister in the government of Harold Wilson, who was Prime Minister from 1964-1970 and again from 1974-1976. Crossman's famous introduction to his edition of Bagehot was a masterpiece of reading the political concerns and preoccupations of 1960s government into the work that Bagehot had written a century earlier, and as a result his introduction now looks very dated--indeed, it has withstood the test of time rather less impressively than have the far older words it introduced. (5) Now the brilliant Cambridge University Press series of Texts in the History of Political Thought (6) has added a new edition of Bagehot to its formidable list, this new edition edited and introduced by historian Paul Smith. (7) To have the new scholarly edition alongside Crossman's more familiar one is welcome. A professional and historical (as opposed to popular and political) appraisal of Bagehot has been long coming. It has been worth the wait.

Smith has provided a reasonably short, but sharp, editorial introduction, which seeks to place Bagehot in historical context, and to explain what Bagehot aimed to achieve in writing The English Constitution. Whereas Crossman strained to insist that Bagehot could be read as an authority on the 1960s as much as he was on the 1860s, Smith is much more relaxed about letting Bagehot speak for himself, and about allowing readers to draw their own conclusions as to the relevance (or otherwise) of Bagehot's interpretations for today. Helpful yet unobtrusive, Smith's is an ideal introduction for those seeking to locate Bagehot in the context of his time or for those looking for an informed summary of his argument, motivation, and general purpose. In addition to his new introduction, Smith's edition appears with all the usual scholarly apparatus associated with the Cambridge series. He has included a list of the major personal and political events in Bagehot's lifetime; biographical notes of persons mentioned in the text; and a helpful if somewhat brief bibliographical note. Printed on high-quality paper, and priced reasonably, Smith's is surely set to be the principal edition of reference for the twenty-first century.

1. BAGEHOT AND CONSTITUTIONAL HISTORY

   Bagehot matters, even now. His work is of great importance to contemporary constitutional scholarship, both in Britain and to some extent also in the United States. His analysis of monarchy as a form of government, and of the constitutional roles of Parliament, remain leading statements, which should be studied by all serious students of comparative constitutional law. Comparative analysis has come relatively late to constitutional law, and one central element of good comparative scholarship that is still too frequently overlooked in the constitutional sphere is that of the history and development of political ideas. Constitutions are not drawn up out of the ether, and neither are they based on universal principles of justice. Rather, they are the products of the specific political climates in which they were forged. It is all too easy to forget that such climates change--it is in the nature of constitutions that they are so general in character that they are able to transcend the particular politics of the moment and appeal afresh to each new political generation. This is true at least of successful constitutions. There are more brittle constitutions, that simply snap when the political wind changes, but they necessarily last only a short time, as France among others would surely testify. However, notwithstanding their political transcendentalism, all constitutions are constructs based on particular choices, priorities, and compromises, and all are informed by the mood--or political philosophy--prevalent at the time of their construction.

   Part of Bagehot's modern value, part of the reason why he continues to matter, is that he reminds us of the political mood at a time that was critical to the formation of the British constitutional order--the mid-nineteenth century. It was Bagehot's sell appointed and self-conscious task to paint a thumbnail sketch of the dominant political values of British constitutional life in the 1860s. Nearly a century and a half on, it is perhaps easier for lawyers to recall the raw events of Bagehot's time than it is for us to evoke the perceptions of those events that were current at the time, yet it is the elusive perceptions as much as it is the events themselves that go to forge constitutional identities. Reading Bagehot brings back to life not only the events of his time, but also the context in which those events were then understood and given meaning. As we comprehend better the constitution of yesteryear, so in turn are we able to see more clearly just where it is that we have now got to.

   Taking constitutional history seriously--and by constitutional history I mean not only the history of constitutional law, but also the historical development of the political ideas on which constitutional law is based--is perhaps nowhere more important for constitutional lawyers than in Britain. The history of British constitutional law is, as is well known, peculiar. Its peculiarity lies in the fact that no one historical moment trumps any other in offering authoritative constitutional meaning. Most of the world's constitutional orders now contain formal written documents that enjoy a privileged position above all other sources in determining what the constitution is. The United States Constitution is, of course, a paradigmatic example. Written constitutional texts such as that of the United States are visible (and legally enforceable) manifestations of the fact that in the political history of the nation, one historical moment--or series of historical moments (8)--was more important than all others in the formation of that nation's political and constitutional identity. Such nations have not experienced smooth, even constitutional development: rather, their history has been marked by revolution, civil war, and perhaps invasion or other military defeat. Written constitutions are never drawn up in moments of political tranquility or prolonged stability--think not only of the United States, but more recently of post-war Germany, of postapartheid South Africa, or of post-communist Russia. For nations such as these, it is clear, indeed banal, that some periods of history are more critical to state-building and to the forging of new constitutional identities than others. One might expect therefore, constitutional scholars to focus on some periods more than on others.

   Britain's constitutional order, however, owes its authority not to any one moment, or even series of moments, but to the much more amorphous accumulation of time. This is not because the British political experience has been smooth: after all there was military defeat at the hands of both the Romans (55BC) and the Normans (1066), there was civil war in the 1640s, and there was revolution in the 1680s. Rather, the unusual nature of the unwritten or uncodified British constitution is due to the timing of these events: they all occurred too early. Written constitutions are neither natural nor inevitable. They are convenient inventions of the political Enlightenment of the eighteenth century. Had Britain experienced invasion, civil war, or revolution during or since the eighteenth century, it is highly likely that its constitution would now look much more like the American, the French, or the German constitutions. In the period since the invention of the modern written constitution, Britain's political experience has been rough, but never so rough as to merit a fresh start. Never since 1689 has there been a moment so potent as to be able unambiguously to tower over all subsequent moments. England's union with Scotland (in 1707) to form Britain; Britain's union with Ireland (in 1800) to form the United Kingdom; and the United Kingdom's belated accession to the European Economic Community (in 1973) each might have constituted such moments had political hands been played differently. But while all of these events have led to constitutional changes, none of them led to such wholesale reform as would require a new constitutional code.

   Instead of enjoying particular moments of constitutional formation, Britain's ancient constitutional order has simply emerged out of over eight centuries of almost entirely unbroken government. Each new development is woven into the rich fabric of the constitution, usually apparently seamlessly, but on occasion with rough edges on which later problems can find them selves snagged. Sometimes the fabric tears and is repaired, but in over eight hundred years it has been discarded only once, and even then only temporarily. (9) Thus, contemporary constitutional law includes authoritative and binding sources from Magna Carta (1215) to the Representation of the People Act (1983) via the Bill of Rights (1689) and the Act of Settlement (1701).

   This creates something of a problem for the British constitutional law scholar who is serious about seeking to understand the historical development of her subject. How can one learn and remember eight centuries of history? It is simply too much--the fabric is so rich it suffocates. Thus, while nowhere is it more pressing to be aware of the historical dimension of the subject, nowhere is it more impossible. To cope, we make things up...