“But what is it that is usually called the constitution? …These actual relations of force are put down on paper, are given written form, and after they have been thus put down, they are no longer simply actual relations of force but have now become laws, judicial institutions, and whoever opposes them is punished!”
-Ferdinand Lassalle, On the Essence of Constitutions, 1862
“The British Constitution is, in fact, merely an out-of-date, superannuated, obsolete compromise between the bourgeoisie, who are not officially but actually riding in all decisive spheres of bourgeois society and the landed aristocracy, who are governing officially”
-Karl Marx, The British Constitution, 1855
One of the popular claims of states with entrenched constitutional texts is that they are antecedent and largely impervious to the changing whims of political actors, instead providing states with a fundamental and permanent framework of government. Contrastingly, these codified documents have also been understood as living documents, receptive to change but managed on their own terms through legal amendment. In other words, though constitutions are not closed to the ebbs and flows of the dynamic life-world, their ability to understand, reason, adjudicate and decide cases is done without recourse to other normative systems. It is, as Martin Loughlin wrote on the nature of modern public law, ‘an autonomous subject operating in accordance with its own distinctive method.’[1] In both formulations however, either as fixed and monosemic or as a dynamic text, constitutional change is understood as being summoned by the will of rational constitutional actors—whether they be ministers, politicians or judges. The same is largely true of uncodified constitutions. While students of UK Constitutional (and Administrative) law are ritually taught about the exceptionalism of the UK’s flexible and adaptive constitution, constitutional lawyers still attribute authorship of constitutional change to constitutional actors (as the perennial political v. legal constitutionalism debates in UK public law attest to). Thus, whether codified, uncodified, permanent or ‘living’, the sources of constitutions—texts, statutes, judgments, principles, conventions—and the many institutions and actors that shape it, comprise what we might call the formal constitution
This dominant view of constitutions and constitutional change has not gone unchallenged, however. Marx wrote, ‘legal relations as well as forms of state are to be grasped neither from themselves nor from the…general development of the human mind’.[2] Instead, they have ‘their roots in the material conditions of life.’ Wilkinson and Goldoni have build on this insight to challenge the fetishization of the formal constitution in how it neglects ‘the material conditions for the emergence and development of a constitutional order, and the material changes that prompt the suspension or modification of formal constitutional norms.’[3] Attention to the formal constitution, they write, needs to be supplemented with ‘attention to the underlying material context, to the basic political and social conditions of possibility of constitutionalism and the dynamics of constitutional change’. Other scholars have further developed the idea of the material context. As Maria Tzanakopolou argues, ‘constitutional law is a field of law which, like all legal fields, embodies the political outcome of social antagonisms unfolding within society.’[4] These changes, she writes, are not just contained to those between capital and labour, but also between competing ruling class fractions and other forms of domination. Indeed, rejecting a conceptualisation of the capitalist state as simply advancing the ‘general interest’ of capital, Simon Clarke writes that the state is better understood as ‘the result of a particular resolution of the conflicts between particular capitals and of the contradiction between capital and the working class.’[5]
Building on this scholarship, and cognisant to the antagonisms and upheavals that always preface these moments in constitutional history (as we shall soon see), I want to focus in particular on ‘the underlying material context’ as the catalyst for constitutional change in the United Kingdom. I will argue that constitutional change in the UK is not the result of progressive developmentalism summoned by rational constitutional actors, but the mediation of the changing material relations in society between competing classes or class fractions. I therefore want to offer some preliminary thoughts, not on the (far more) complex question in the shifting relationality between material relations and constitutional change (more on that at the end), but on some illustrative but nonetheless significant moments in UK constitutional history, and to re-frame them as products of how the UK constitution has mediated class conflict.
The ‘underlying material context’ of UK Constitutional change
The English Civil War and the so-called Glorious Revolution as a prelude to the doctrine of Parliamentary Sovereignty, is an important historical starting point that presages the modern UK constitution. The Whig recollection of the 17th century effectively argues that the shift from royal power to parliamentary sovereignty was one which followed a Rostowian-like model of incremental development in which (legal) reason triumphed over monarchical obstinacy. However, Christopher Hill, in his famous essay on the English revolution framed the period prefacing 1688 as a class war between Charles I and a decaying feudal order (backed by a reactionary ecclesiastical order) against a rising capitalist class (and their backers among the wider masses, yeomans and progressive gentry); the latter of whom were increasingly being represented in Parliament. In a firm rejection of the Carlyle ‘great-man’ historiography, Hill argues that the shift in subsistence agriculture to commercial farming and the dissolution (effectively an enclosure) of the monasteries, pitted ruling elites between a ‘capitalist mode of production within the structure of feudalism’. And while it was the latter, under the absolutist state, in which the loci of state power was situated, this came under significant pressure from the capitalists in Parliament. What HWR Wade refers to as ‘the ultimate political fact’ in his attribution of the origins of the doctrine of supremacy of Parliament,[6] emerges from a settlement between one decaying mode of production, and another one in its ascendancy. The Glorious Revolution, in which Parliament emerged as sovereign, was concomitant with the rise of an emergent industrial bourgeoisie.
Similarly, the union of England and Wales with Scotland emerged out of military but also economic expediency. As Elizabeth Wicks writes, ‘access to England’s colonial markets was seen as an essential element of union’ (especially after the failure of Scotland’s Darien scheme).[7] Indeed, it was not too long after the treaties ratification, that the union was plunged into a constitutional crisis. A motion to dissolve the union was put forth in Parliament (and only narrowly rejected) following the government’s introduction of a ‘Malt Tax’ on an impoverished Scotland (prompting riots in Hamilton and Edinburgh) which was needed to fund England’s war with France. Indeed, as Wicks notes, many of the provisions of the Union Treaty focus on freedom of trade (e.g Articles IV, Article VIII, Article IX, Article X, Article XIII). This was a union of free markets as much as of two Kingdoms.
The Parliament Acts 1911 and 1949, while introduced to temper the power of the House of Lords over finance bills, was in fact a moment of a wider social antagonism between competing class fractions (arguably a contemporary, though more muted, iteration of the so-called Glorious Revolution). The House of Lords, overwhelmingly populated with Conservative party peers, was a veritable mix of heirs to landed gentry and an emergent propertied capitalist class. They provided staunch opposition to David Lloyd George’s ‘People’s Budget’ which sought to build a welfare state, funded by taxes on land and high incomes. The post-war settlement between capital and labour, captured in the Keynesian consensus, was embraced by both the Liberal party’s Lloyd George (Lloyd George was a confidant of Keynes) and, later, Labour’s Clement Atlee (hence the 1949 Act) as it began to negate the earlier doctrines of laissez-faire capitalist orthodoxy. The Parliament Acts were a condensation of that struggle between competing class fractions; on the one hand a hybrid of a parasitic rentier class and bourgeoisie in the Lords, and in the House of Commons, ‘social liberals’ whose political philosophy of ‘new liberalism’ emerged out of the increasing labour agitation against the earlier laissez-faire doctrine. As Rob Hunter has written elsewhere, ‘crises of constitutionality occur in those moments when the contradictions that constitutionalism is meant to manage cannot be managed through the ordinary reproduction of constitutionality. They are moments in which dominant blocs must articulate and manifest new syntheses, or else risk the endangerment of their hegemony.’ The Parliament Acts capture not a rupture or overthrow of capitalism, but shifts and negotiations of earlier capitalist orthodoxy.
Finally, the 2015 Tax Credit crisis was arguably precipitated by technocratic and professional class outrage against the hegemonic post-2008 neoliberal rationalities (privatising profits/subsidizing finance capital; socializing losses through austerity and welfare cuts). The Tory dominated House of Commons introduced secondary legislation to cut tax credits by £4.4 billion (‘socializing the losses’) but this required approval from both Houses of Parliament before it became law. However, the draft legislation was rejected by the Lords. The then Chancellor of the Exchequer deplored this as a constitutional crisis, arguing the Lords were ignoring a decades old convention in which they were expected to relent on finance bills (though many argued this was reserved for primary legislation). The resulting Strathclyde Review into secondary law-making, suggested bringing the power of the Lords into line with that under the Parliament Acts (though the results of the 2016 referendum meant this never saw the light of day). Now unusually, the class composition of the House of Lords had changed significantly from antiquity, since New Labour had purged the chamber of ‘landed’ hereditary peers following the House of Lords Act 1999. Instead, the residual aristocratic class dominance in the upper chamber had given way to a dominant professional class of technocrats.
The ’nature’ of social antagonisms and constitutional change
This contribution has sought to offer a re-appraisal of constitutional historical change through exploring the ‘underlying material context’. What we observe in a material reading of UK constitutional history is that these constitutional crises are often preceded by class antagonisms either within or between classes. Perhaps what is less obvious in the examples cited, but no less important, is the broader changes in the relations between capital, law and the state. For example, the role of the state and law in post-war welfare capitalism is distinct from the reconfigured state and legality in neoliberal capitalism. The trickier point therefore, is to understand the shifting relationality between these material relations, social antagonism and constitutional change. ‘Shifting relationality’ invites us to explore a) the nature of the relationship between the economic base and the legal superstructure and b) to historicize this relationship. On the former, is the relation between law and capital mechanistic? Does law obfuscate and mystify the exploitative relations between capital and labour? Can we speak about the historical formation of a ‘constitutional form’? Is the state and its legal apparatus the instrument of competing class fractions or does the legal superstructure imbue a relative autonomy, albeit determined by the economy in the last instance? On the latter point of historicality, how does this relationship change through time (either due to the structural contradictions of capital or through class antagonisms)? Though marxists have explored the question on the relation between the base and the legal superstructure, Chris Tomlin’s paper ‘How Autonomous is Law’ is a useful starting point for historicizing this relationality. Rather than attribute a fixed relationality between law and capital, he cautions against ‘transhistorical statements about what law is’;
‘Both evolutionary functionalism and the critical response to it purported to make transhistorical relational statements an answer to law’s autonomy question, but law is not, per se, a phenomenon with constant attributes the nature of which place it and the contexts in which it is located in a constant relationship—instrumental-functional, relatively autonomous of, constitutive of, constituted by. Each relational statement is worthy of serious examination; each may be more or less appropriate at a given moment or to describe a given situation. Approached historically, however, law’s relationality is not susceptible to a single theorization.’[8]
In other words, capital’s relationship to law also reflects the changing modalities of capital, its relationship with labour and the antagonisms between competing class fractions. In the early periods when the feudal mode of production began to disintegrate and agricultural and industrial capitalism was starting to take hold, the capitalist class would have had a more direct role in using the state and legal apparatus to reproduce the conditions for capital accumulation through the creation of ‘essential legal relations’ (e.g. enclosures, banning vagrancy, establishing property rights). At a later point, when capital had become hegemonic, the need for capital to have direct control over the state apparatus and law arguably diminished, but a new task of ensuring the legitimacy and reproduction of capital was required. Here legal ideology and form do the work of reproducing capital. In other words, the materialism of constitutional change and understanding the relationality between law and capital is not fixed but has to be historicized. Whatever the history of this material relationality, the general aim of this intervention has been to summon our attention to the ways in which major constitutional changes have occurred as a result of social antagonisms with a focus on the UK.
I would like to thank my co-editors at Legal Form (Jasmine Chorley-Schulz and Eva Nanopoulos) and Daniella Lock for their comments on earlier drafts of this piece.
Tanzil Chowdhury is the newest member of the editorial collective at Legal Form. He is a Senior Lecturer (Associate Professor) in Public Law at Queen Mary University of London and the Co-Director for the Centre of Law and Society in a Global Context. His research focusses on Public law and accumulation by dispossession.
References
[1] Martin Loughlin, The Idea of Public Law (OUP 2004)
[2] Karl Marx, A Contribution to the Critique of Political Economy (1859)
[3] Marco Goldoni and Mike Wilkinson, ‘The Material Constitution’ (2018) 81, 4 Modern Law Review
[4] Maria Tzanakopoulou, Reclaiming Constitutionalism: Democracy, Power and the State (Bloomsbury 2020)
[5] Simon Clarke, ‘State, Class Struggle and the Reproduction of Capital’ in S Clarke (eds), The State Debate. Capital and Class (Palgrave Macmillan 1991)
[6] H.W.R Wade ‘The Basis of Legal Sovereignty’ (1955) Cambridge Law Journal 172, 188
[7] The Darien scheme was a failed attempt by Scottish merchants to establish colonies in the Gulf of Darien. See also Elizabeth Wicks, The Evolution of the Constitution (Hart 2006)
[8]Chris Tomlins, ‘How Autonomous is Law’ (2007) 3 Annual Review of Law and Social Science
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