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Public Law: Text, Cases, and Materials (2019 4 edn). p 88 quotes from J.E.K. Murkens, ‘The quest for constitutionalism in UK public law discourse’ (2009) 29 Oxford Journal of Legal Studies 427, 430– 2, 454– 5 (footnotes omitted).

[. . . C]onstitutionalism is too big a concept for the small boots that public law scholars are prepared to give it. At present, the Orwellian ‘belief in the law as something above the State’ does not exist in the United Kingdom. At a formal level constitutionalism in the UK is an umbrella term that consists of the following limbs:

(i) it concentrates ultimate public power in one institution (the sovereignty of Parliament);
(ii) the government is organized by means of majority rule (representative government);
(iii) the granting and exercise of public power is determined and controlled by constitutional principles, such as the rule of law, separation of powers, and respect for individual rights (limited government);
(iv) the government is held to account by Parliament for its policies and its conduct (political accountability);
(v) the government is held to account by an independent judiciary through the principal mechanism of judicial review (legal accountability).

George Orwell. Work : Essays : The Lion and the Unicorn.

        And yet the gentleness of English civilization is mixed up with barbarities and anachronisms. Our criminal law is as out-of-date as the muskets in the Tower. Over against the Nazi Storm Trooper you have got to set that typically English figure, the hanging judge, some gouty old bully with his mind rooted in the nineteenth century, handing out savage sentences. In England people are still hanged by the neck and flogged with the cat o’ nine tails. Both of these punishments are obscene as well as cruel, but there has never been any genuinely popular outcry against them. People accept them (and Dartmoor, and Borstal) almost as they accept the weather. They are part of ‘the law’, which is assumed to be unalterable.
        Here one comes upon an all-important English trait: the respect for constitutionalism and legality, the belief in ‘the law’ as something above the State and above the individual, something which is cruel and stupid, of course, but at any rate incorruptible.
        It is not that anyone imagines the law to be just. Everyone knows that there is one law for the rich and another for the poor. But no one accepts the implications of this, everyone takes it for granted that the law, such as it is, will be respected, and feels a sense of outrage when it is not. Remarks like ‘They can’t run me in; I haven’t done anything wrong’, or ’They can’t do that; it’s against the law’, are part of the atmosphere of England. The professed enemies of society have this feeling as strongly as anyone else. One sees it in prison-books like Wilfred Macartney’s Walls Have Mouths or Jim Phelan’s Jail Journey, in the solemn idiocies that take place at the trials of conscientious objectors, in letters to the papers from eminent Marxist professors, pointing out that this or that is a ‘miscarriage of British justice’. Everyone believes in his heart that the law can be, ought to be, and, on the whole, will be impartially administered. The totalitarian idea that there is no such thing as law, there is only power, has never taken root. Even the intelligentsia have only accepted it in theory.

  1. Pls see the question in the subject line.

  2. I'm befuddled. The first quote from 2009 says "belief in ‘the law’ as something above the State and above the individual" doesn't exist in the UK. But Orwell said this belief did. Who's right? If Murkens is correct, what happened to this belief?

  3. Why's this belief "incorruptible"?

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    I'm not sure this is a good fit to politics.stackexchange, but you have an essayist during WW2 arguing for a socialist (but definitely not communist) English revolution, versus an expert in modern and european public law. There is no inherent incompatibility in them both being correct within the definitions the two different authors are using. Orwell is referring to a British conception "Platonic natural order" antithetical to communism and fascism, whereas Murkens seems to be being deliberately more literalist (note the cutting of 'and above the individual'). – origimbo Mar 9 at 14:10
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    @origimbo: it's a little disconcerting that political theory of this sort isn't welcome on a site dedicated to politics. This seems like an interesting question, and one I could answer, but I'm hesitant to invest the time when it already has four close votes. What is with this site? – Ted Wrigley Mar 9 at 14:20
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    @TedWrigley I agree; it looks like a perfectly decent question (and I've up-voted it). Perhaps some of those close-voters could explain their thinking? – Paul Johnson Mar 9 at 15:13
  • I think the second quote is saying the law is incorruptible, not the belief. – user253751 Mar 9 at 16:00
  • Note that the Lion and Unicorn essay was written as part of a series of essays, "intended to serve as an arsenal for the manufacture of mental and spiritual weapons needed for the crusade against Nazism." publishinghistory.com/searchlight-books-secker-warburg.html. – Lag Mar 9 at 17:28
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In large part what you're seeing here is the difference between a political theorist and a legal scholar. For a political theorist like Orwell, it's evident that people in Liberal democratic societies hold the law and constitution as something above any individual or group, including the state itself. This is foundational for a republican regime. Republics are built on an anti-dynastic principle: the line between ruler and subject is blurred, all offices of political power are designed to be temporary, and even long-lived groups (like parties and factions) are expected to rise and fall in power and influence. The only constants in a republic are the law, and the constituent principles on which the law is based. No man is too high to be brought down if he strays from the law; no man is too low to be protected from powerful actors by the law. In a literal sense, the only way to 'kill' a republic is to 'kill' its constitution and legal structures. As Orwell points out, the actual implementation of law might be less than savory: biased, cruel, unjust, or even outright idiotic. But these weaknesses are always perceived as aberrations of the ideal spirit of the law, not as constituent features.

A legal scholar like Murkens, though, is bound up in the pragmatic details of the legal system's operation. Everything that Orwell — and by extension lay people, with their limited and idealistic view of the law — views as an aberration of the spirit of the law, Murkens would see as a normative principle. As a practical matter, Murkens is right: the UK system does concentrate all power in the sovereignty of Parliament. But on an abstract perspective Orwell is right that this concentration of power in Parliament transcends any specific person or group, such that Parliament becomes a mere embodiment of an overarching principle of law.

There are shades of the is/ought dichotomy here, with Murkens focused on the 'is' of actual legal practice and Orwell focused on the 'ought' of republican ideals.


Addendum

In response to a comment, a normative principle is a principle which is establish by common use or practice, not by philosophical or ideological ideals. For example, on one hand we could say that the philosophical principle behind the issuance of parking tickets is to create fair access to parking in congested areas; on the other hand, we could say that the normative principle behind parking tickets is to generate revenue for municipal governments. We would all like to believe the philosophical side of the question (that parking tickets are used to improve the lives of citizens by preventing abuses), but there is no denying that some municipalities are merely thinking about improving the bottom line of their budget plan.

Much of English Common Law (and all of its derivatives around the world) are based on normative principles of established and rationalized precedent, not on any deep philosophical analysis. It's common for legal thinkers to approach problems pragmatically.

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  • @PearlKoffman: Added a bit to address this. – Ted Wrigley Mar 29 at 7:08
  • Is creative usage of fines etc to finance a police force or judiciary normative while everyone really believes that the fines is philosophical ? I think about local PDs usage of fines and fines on fines when the object has trouble paying the fine from the beginning. – Stefan Skoglund Mar 29 at 23:01
  • @StefanSkoglund: They're not mutually exclusive, though there's definitely an ethical argument to be made, there. Would that more politicians and bureaucrats were idealists rather than pragmatists. – Ted Wrigley Mar 30 at 3:50
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I think the difference has more to do with the times: in those 70 years, the very perception of the law by the British public changed, and Murkens refers to that.

Disclaimer: I'm not a British, and I infer my perception from 'external observations.'

Up until about Orwell's times and the rise of truly totalitarian regimes in modern Europe, Britain was for a long time an exemplary 'rule of the law' country; at least it was perceived as such, both internally and externally. In many other countries, particularly in absolutist monarchies, this concept didn't exist, or even perceived as fundamentally wrong (even if useful to some extent), whereas in Britain it formed the 'psyche' of society.

This is not about the law being just or fair; this is only about how the law is being applied. This is akin to 'Necessitarian' view of nature, and Orwell states just that. 'Practical excesses' may happen, but fundamentally, the law is for everyone equally, the individuals as well as the state itself. And as a fundamental thing, the law is 'incorruptible'. The law as such, not any of its specific forms.

For Orwell, the Spanish war demonstrated how different things can be. In Homage to Catalonia, as well as in some essays of that time, he discusses how much of a shock it was to realise that 'the law' (whatever it be) was not considered as an intrinsic fabric of society; that 'revolutionary necessity' can prevail over anything; that 'if I haven't done anything illegal, ultimately nothing wrong should happen to me' doesn't hold. And it doesn't hold not only in practice, but in people's minds. As often happens, we don't notice things that are 'normal' to us -- until we see the contrast.

But nowadays, things have changed. Even the British apparently don't believe in the law the way they used to. The change may be manifold, from shifting to 'ultimately, there is just power, not law', to feeling that there are things above the law (say, 'human rights'). I think Murkens mostly refers to these things when he contrasts it with the Orwell's statement.

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I think the first sentence would be better off without the "belief in".

Orwell's passage is arguing about the law as an abstract concept, and how "the Law" is seen by non-experts. A secular belief in something beyond simple earthly power. In his sentence "incorruptible" attaches to "law". It's the kind of sweeping sociographic statement Orwell makes a lot, and is probably pretty accurate.

Murkens is talking about how the law works in practice and how it is seen by constitutionalists. And he's right: the UK doesn't have a "beyond politics" constitution.

That doesn't change the public's conception of "rightness" and "lawfulness" as being something beyond the mere text.

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