Tanzil Chowdhury (Queen Mary University of London, School of Law) has posted The Political and Legal Constitution: Historical Forms of Capitalist Constitutionalism (Accepted for publication in King’s Law Journal)) on SSRN. Here is the abstract:
Legal and Political constitutionalisms (and variations therewith) can be better understood as historically specific social forms of capitalist constitutionalism, rather than as competing models jostling for constitutional primacy. I begin with Martin Loughlin’s reappraisal of John Griffith’s Chorley lecture on The Political Constitution and what the former understands as the misapprehension and misapplications of the author’s claims. Loughlin instead historicizes Griffith’s work, slots this into one of three loose periodization’s of styles of public law thought over the last century (conservative normativism, functionalism and liberal normativism which loosely translate to common law, political and legal constitutionalism respectively) and begins to connect some of these changes to the turbulent structural and societal shifts in Great Britain. In effect, this renders the common law, political and legal constitution, less as models and more as historical periods in Britain’s constitutional history. Using Loughlin’s reappraisal as a point of departure and bringing it into conversation with a renascent Marxist turn in legal studies, I want to tentatively plot a materialist history of British constitutionalism over the century. What underwrites the political, legal and common law constitution is the value form and the different historical regimes of accumulation. I will argue therefore, that the ongoing antagonism in British constitutional thought between the common law, political and legal constitution (what I describe as the different institutional combinations of state and social power, subject formations, forms of mediation and characterisations of legality) can be understood, less as a normative or a transhistorical battle of ideas, and more as changes in the historical forms of capitalist constitutionalism.