The Concept of the Constitution in the Jurisprudence of Michael Oakeshott
Daniel Andrew Skeffington
The London School of Economics and Political Science, GB
Historical Research Assistant, LSE Department of Government. M.Sc. Candidate in Political Theory, LSE Department of Government. B.Sc. (Hons) in Politics and International Relations, University of Bath.
Michael Oakeshott, Professor of Political Science at the London School of Economics (1950-1968), wrote and taught extensively on history, politics, philosophy, and law. Yet one of the central concepts in state theory, the constitution, goes almost unmentioned in his work, leading one to question whether, for him, such a concept even exists. This essay explores that question, arguing that such a concept does indeed exist. For Oakeshott, the constitution is learned and professed rather than written down and applied, in the manner of a vernacular language. This essay proceeds in six sections; section one examines the foundations of his thought, the Latin concepts of lex and jus, which stand for the written laws and ‘rightness’ of these laws. Section two explores how these concepts interact, and the relationship between politics and the law in the constitution. Section three expands on Tom Poole’s understanding of societas and universitas, the two ‘poles’ between which Oakeshott’s moral association may swing, to explain the reflexive, dialectical dynamic at the heart of his constitutional theory. Section four grounds Oakeshott’s jurisprudence in his theology, emphasising his individualistic philosophy and the central role moral discourse plays in it. Section five refocuses the debate on the rule of law, exploring Oakeshott’s argument that the constitution is an understanding we have of a ruler’s right to rule, and its relationship to another ambiguous concept, sovereignty. Section six concludes with a summation of Oakeshott’s concept of the constitution, and some thoughts on future comparative work.