ABSTRACT
Martin Loughlin’s The Idea of Public Law is an important re-statement of political constitutionalism in the way John Griffith understood that constitutive dimension of public law in the seminal article that inaugurated a tradition of political-constitutional jurisprudence in England.1 But there is a crucial ambivalence at the heart of the main ‘synthesis’ Loughlin attempts and it involves a problematic articulation of law with the political. On the one hand, Loughlin aims to ‘restore Public Law as “political jurisprudence (droit politique)”’ and in that must establish a certain continuity between three ‘orders’ of the political, that he identifies as ‘the political’, ‘politics’, and ‘constitutional law’. On the other hand, the author is at pains to establish this theory as ‘pure’ and I take ‘pure’ (despite what Loughlin sometimes says against him) to have the meaning that Kelsen gave the term, as underwriting the autonomy of the practice at the level at which it acquires its objective meaning as legal; otherwise stated, one that guarantees the distinctiveness of the practice, its values sui generis, its meanings autonomous and distinct. Between these two fundamental tenets, between continuity and autonomy, the interplay is – let us say – improbable, and their tension – if we can call it that – is forever threatening to undercut the claims made in respect of either of them. I will explore this ambivalence for what it elides and for what it makes possible in that elision.
