1. JAG Griffith ‘The political constitution’ (1979) 42 MLR 1 at 19.

2. Griffith, Jag The Politics of the Judiciary (London: Fontana, 5th edn, 1997) pp 335–336. Google Scholar First published in 1977.

3. Rawlings, R Distinction and diversity: law and the LSE’ in Rawlings, R (ed) Law, Society and Economy: Centenary Essays for the London School of Economics and Political Science, 1895–1995 (Oxford: Clarendon, 1997) pp 20–21. Google Scholar Griffith studied as an undergraduate at the LSE from 1937–1940, attending lectures by and tutorials with Ivor Jennings. After lecturing at the University College of Wales from 1946 to 1948, Griffith returned to LSE as a lecturer and would remain there until retirement.

4. See, eg, JAG Griffith ‘The constitutional significance of delegated legislation’ (1950) 48 Michigan L Rev 1079.

5 See, eg, Griffith, Jag Central Departments and Local Authorities (London: Allen & Unwin, 1966).Google Scholar

6 See, eg, Griffith, Jag Official secrets and open government’ in Public Rights and Private Interests (Trivandrum: Academy of Legal Publications, 1981) p 62 Google Scholar; and JAG Griffith ‘Official Secrets Act 1989’ (1989) JLS 273.

7. Griffith, Jag Parliamentary Scrutiny of Government Bills (London: Allen & Unwin, 1974).Google Scholar

8. J Willis ‘Canadian administrative law in retrospect’ (1974) 24 UTLJ 225 at 225. For analysis of Willis's work on delegated legislation, with an instructive account of Griffith's work on the same, see M Taggart ‘From parliamentary powers to privatisation: the chequered history of delegated legislation in the twentieth century’ (2005) 55 U Toronto LJ 575 at 594–600.

9. Griffith, above n 1, at 5.

10. JAG Griffith ‘The Crichel Down affair’ (1955) MLR 557 at 557.

11. See, eg, I Leigh ‘Secrets of the political constitution’ (1999) 62 MLR 298 at 308.

12 See, eg, Stevens, R The Independence of the Judiciary: The View from the Lord Chancellor's Office (Oxford: Oxford University Press, 1993) p 189. Google Scholar

13 See, eg, Tomkins, A Our Republican Constitution (Oxford: Hart, 2005) pp 37–38. Google Scholar

14. This criticism can be made of Thomas Poole whose recent article, although drawing out important currents in Griffith's intellectual thought, offers little insight into Griffith's political constitutionalism per se: T Poole ‘Tilting at windmills? Truth and illusion in The political constitution’ (2007) 70 MLR 250.

15. Murphy and Whitty make this point in respect of Griffith's claim that law is politics by some other means, but it also applies more generally to Griffith's work; see T Murphy and N Whitty ‘A question of definition: feminist legal scholarship, socio-legal studies and debate about law & politics’ (2005) 57 NILQ 538 at 539–540.

16 See Laski, HJ Reflections on the Constitution (Manchester: Manchester University Pres, 1951).Google Scholar For a recent exchange debating the merits of ‘strong government’, see D Nicol ‘Professor Tomkins’ House of Mavericks’[2006] PL 467; and A Tomkins ‘Professor Tomkins’ House of Mavericks: a reply’[2007] PL 33.

17 D Dyzenhaus ‘The left and the question of law’ (2004) XVII Canadian JL & Jurisprudence 7 at 7. As Dyzenhaus notes, Keith Ewing's work is a good example of this approach; see, eg, Ewing, KD The unbalanced constitution’ in Campbell, T, Ewing, KD and Tomkins, A (eds) Sceptical Essays on Human Rights (Oxford: Oxford University Press, 2001) p 103 CrossRefGoogle Scholar; and ‘The futility of the Human Rights Act’[2004] PL 829.

18 See Harlow, C and Rawlings, R Law and Administration (London: Butterworths, 2nd edn, 1997).Google Scholar

19. Loughlin, M The Idea of Public Law (Oxford: Oxford University Press, 2003) p 44. Google Scholar See also

20. Loughlin, M The pathways of public law scholarship’ in GP Wilson Frontiers of Legal Scholarship: Twenty-Five Years of Warwick Law School (Chichester: John Wiley & Sons, 1995) p 173. Google Scholar Loughlin makes this point in respect of law, but recent writings suggest that it applies equally to his understanding of the political constitution.

21. This phrase is used by Colin Harvey in locating Allan Hutchinson's work within wider patterns of political thought: C Harvey ‘Playing with law and politics’ (2001) 51 U Toronto LJ 171 at 180–181.

22 A leading example of this ‘agonistic turn’ is the work of John Gray on radical pluralism, and in particular his argument for a distinctive form of liberalism termed ‘agonistic liberalism’: J Gray ‘Agonistic liberalism’ in Gray, J Enlightenment's Wake: Politics and Culture at the Close of the Modern Age (London: Routledge, 1995) p 64. CrossRefGoogle Scholar It is no coincidence that Gray's work has proved attractive to political constitutionalists: see, eg,

23. Griffith, above n 1, at 2.

24. Ibid, at 3.

25. Ibid.

26. JAG Griffith ‘Judges in politics: England’ [1968] Government & Opposition 485 at 497.Google Scholar

27. Griffith, above n 1, at 2.

28. Ibid, at 1.

29. Ibid, at 1–2.

30. JAG Griffith ‘Judges and the constitution’ in Rawlings, above n 3, p 306.

31. Griffith, above n 1, at 12.

32. Ibid.

33. Ibid, at 20.

34 Stuart Hampshire puts it thus: ‘conflict is perpetual: why then should we be deceived?’; see Hampshire, S Justice is Conflict (Princeton: Princeton University Press, 2000) p 48. Google Scholar There is also an obvious kinship, here, between Griffith and Jeremy Waldron in light of the latter's emphasis on disagreement as the elementary circumstances of politics; see

35. Griffith, above n 1, at 20.

36 See, eg, the work of Martin Loughlin: Loughlin, M Local Government in the Modern State (London: Sweet & Maxwell, 1986)Google Scholar; ; and

37. JAG Griffith ‘The traditional pattern reconsidered’ (1966) 37 Political Quarterly 139.

38. Ibid, at 141.

39. Ibid.

40. Ibid, at 140. In his empirical work on the relationship between central departments and local authorities, also published in 1966, Griffith concluded that many local authorities were too small to fulfil their traditional role of administering local services within a framework of national policy; see Griffith, above n 5, p 564.

41 See Loughlin, M The demise of local government’ in Bogdanor, V (ed) The British Constitution in the Twentieth Century (Oxford: Oxford University Press, 2003) p 521. Google Scholar

42. See generally Loughlin, above n 19, p 41.

43. This phrase appears in R Bellamy and D Castiglione ‘Constitutionalism and democracy – political theory and the American Constitution’ (1997) British J Political Science 595 at 618.

44. Holmes, S Passions and Constraints: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995) pp 33–34. Google Scholar

45. Crick, B In Defence of Politics (London: Continuum, 5th edn, 2000) p 7. Google Scholar First published in 1962.

46. Loughlin, above n 19, p 42.

47 JAG Griffith, ‘The common law and the political constitution’ (2001) 117 LQR 42 at 64, citing Waldron, J The Dignity of Legislation (Cambridge: Cambridge University Press, 1999) p 24. CrossRefGoogle Scholar

48. Griffith, above n 26, at 498.

49 M Loughlin ‘“The Functionalist Style” in public law (2005) 55 U Toronto LJ 361 at 368. See also Loughlin, M Public Law and Political Theory (Oxford: Clarendon, 1992) p 198. Google Scholar

50. See, eg, A Tomkins ‘In defence of the political constitution’ (2001) 21 OJLS 157 at 172.

51 These represent two of three types of conflict identified by Claus Offe, the third being those caused by the collision of opposing identities: C Offe ‘Homogeneity and constitutional democracy: coping with identity conflicts through group rights’ (1998) 6 J Political Philosophy 119. This taxonomy, but not the conclusions drawn from it, is cited in Bellamy, R Liberalism and Pluralism: Towards a Politics of Compromise (London: Routledge, 1999) p 103. Google Scholar

52. Griffith, above n 1, at 17.

53. Ibid.

54. Ibid, at 17. See also Griffith Public Rights and Private Interests, above n 6, p 4. See generally Harlow and Rawlings, above n 18, p 75.

55. Griffith, above n 1, at 20.

56. Ibid, at 16.

57. Griffith, above n 47, at 59.

58. Griffith, above n 1, at 20.

59. Ibid, at 14.

60. Ibid, at 16.

61. Ibid, at 20.

62. Griffith, above n 2, p 336.

63 R Bellamy ‘The political form of the constitution: the separation of powers, rights and representative democracy’ (1996) XLIV Political Studies 436 at 439. It will, by now, be evident that Griffith's agonistic political constitutionalism exhibits important similarities to Bellamy's political constitutionalism. See generally Bellamy, R Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007).CrossRefGoogle Scholar

64. Griffith, above n 1, at 16.

65 See Tomkins, A Public Law (Oxford: Clarendon, 2003) p 18. Google Scholar

66 In the first edition of The Politics of the Judiciary, Griffith acknowledged that ‘the judiciary in any modern industrial society, however composed, under whatever economic system, is an essential part of the system of government and its function may be described as underpinning the stability of that system’. Subsequent editions did not include this wording, but did still acknowledge the judiciary's important function in supporting the governing institutions. See Griffith, Jag The Politics of the Judiciary (London: Fontana, 1977) p 213. Google Scholar Cf the fifth edition: Griffith, above n 2, p 291. This observation is Dawn Oliver's; see D Oliver ‘Politicians and the courts’ (1988) 41 Parliamentary Affairs 13 at 19–21.

67. Griffith, above n 47, at 44–45, noting that ‘the great offices of the state, the operation of governmental functions at home and abroad, the law, privileges, proceedings and usage of Parliament have been touched by litigation only on rare though significant occasions’.

68. For criticism of this approach, see Loughlin, above n 20, pp 172–174.

69 Griffith, above n 2, pp 337–343. See also Griffith, Jag and Street, H Principles of Administrative Law (London: Pitman, 1973)Google Scholar ch 1.

70. Griffith, above n 2, p 336.

71 Ibid. On the possibility that judicial attitudes may be ‘in the process of radical change’, see Griffith, Jag Judicial Politics since 1920: A Chronicle (Oxford: Blackwell, 1993) p 191. Google Scholar

72 See, eg, Stevens, above n 12, pp 179–180; Drewry, G Judicial independence in Britain: challenges real and threats imagined’ in Blackburn, R (ed) Constitutional Studies: Contemporary Issues and Controversies (London: Mansell, 1992) p 148. Google Scholar Griffith characterised Steven's treatment of The Politics of the Judiciary as one that left Griffith surmising that Stevens ‘had never read anything [Griffith] had written on the subject but relied on what others said [Griffith had] said’: JAG Griffith ‘Review’ (1995) 58 MLR 121 at 124.

73. See, eg, Griffith, above n 2, p 342. Noting that while ‘we depend far more on the political climate’ to keep the governing institutions within their proper limits, he also recognises the fact ‘[t]hat those limits are also prescribed by law and that judges may be asked to maintain them is not without significance’.

74. Ibid.

75. JAG Griffith ‘Why we need a revolution’ (1969) 40 Political Quarterly 383 at 386–387.

76. Griffith, above n 47, at 65.

77 Oliver similarly characterises Griffith's attitude to his own political constitutionalism; see Oliver, D Constitutional Reform in the UK (Oxford: Oxford University Press, 2003) p 23. Google Scholar

78. Tomkins, above n 50, at 169.

79. R Rawlings ‘Legal politics: the United Kingdom and ratification of the Treaty on European Union (part one)’ [1994] PL 254.Google Scholar

80. Griffith, above n 1, at 17–19.

81. See R Rawlings ‘Review, revenge and retreat’ (2005) 68 MLR 378. Although note that Rawlings casts this episode as one that may depict a further movement from a political to a legal constitution, noting, as he does, that the controversy surrounding the government bill that, after important modifications, eventually became the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ‘demonstrates the greatly enhanced role of legal factors in what for so long was considered an essentially political constitution’ (at 409).

82. Murphy and Whitty, above n 15, at 540.

83 For leading examples of this common law constitutionalist school of thought, see Allan, Trs Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001)Google Scholar; J Laws ‘Law and democracy’[1995] PL 72; and S Sedley ‘The sound of silence: constitutional law without a constitution’ (1994) 114 LQR 270. For a useful overview, see T Poole ‘Back to the future? Unearthing the theory of common law constitutionalism’ (2003) 23 OJLS 435.

84. See generally M Loughlin ‘Towards a republican revival?’ (2006) 26 OJLS 425 at 435–436.

85. See generally T Hickman ‘In defence of the legal constitution’ (2005) 55 U Toronto LJ 981 at 989–990. On ‘politics under the constraints of legal order’, see D Dyzenhaus ‘The difference that law makes’ (1997) 60 MLR 866 at 870.

86. Poole, above n 14, at 275.

87. Griffith, above n 1, at 15.

88. Ibid, at 19.

89. Poole, above n 14, at 275.

90 Ibid, at 261. See generally Dunn, J Setting the People Free: The Story of Democracy (London: Atlantic Books, 2005).Google Scholar

91. Tomkins, above n 13, pp 36–37.

92. Poole, above n 14, at 253.

93. Ibid, at 276.

94. Ibid, at 256. Poole usefully cites two works where this anti-authoritarianism is very much evident: JAG Griffith ‘Justice and the army’ (1947) 10 MLR 292 and ‘The Crichel Down affair’, above n 10. The former article should be read alongside JAG Griffith ‘Report of the Army and Air Force Courts-Martial Committee, 1946 (Cmd. 7608)’ (1949) 12 MLR 223.

95. Poole, above n 14, at 257.

96. Griffith, above n 1, at 2–3.

97. JAG Griffith ‘The Brave New World of Sir John Laws’ (2000) 63 MLR 159 at 176.

98. On this, see Holmes, above n 44, p 217.

99. Griffith, above n 47, at 59–60.

100. Poole, above n 14, at 275.

101. Griffith, above n 47, at 52–53.

102. Ibid, at 54. In his major study on the workings of the legislative process, published in 1974, Griffith concluded that the impact of Parliament on government Bills ‘is by no means negligible’, with the legislative process important in ‘giving publicity to the intentions of Governments, in forcing Ministers to defend their policies and themselves’: Griffith, above n 7, p 256.

103. Griffith, above n 47 at 54. See also Griffith's emphasis on opposition parties actually opposing government in Griffith, above n 4. See generally JAG Griffith ‘The place of Parliament in the legislative process’ (1951) 14 MLR 279 at 425–437.

104. Griffith, above n 1, at 16.

105. Ibid, at 20.

106. Tomkins, above n 65, p 19.

107 See, eg, Jennings, WI Parliamentary Reform (London: Gollancz, 1934).Google Scholar For Griffith's assessment of Jennings's influence in moulding his (Griffith's) constitutional thought, see JAG Griffith ‘A Pilgrim's Progress’ (1995) JLS 410. See generally A Tomkins ‘Talking in fictions: Jennings on Parliament’ (2004) 67 MLR 772.

108 See, eg, Crick, B The Reform of Parliament (London: Weidenfield & Nicholson, 1964).Google Scholar For the influence of Crick on Tomkins's thought, see Tomkins, above n 50.

109. Griffith, above n 103, at 294.

110. Rather puzzling is Oliver's suggestion that ‘[i]t is not clear…to what extent Griffith would accept that politicians be constrained in their decision-making by rules that are not enforceable by the judges’: Oliver, above n 77, p 22. Griffith is quite clear that politics constrains the governing institutions. It may be that Oliver would choose to emphasise the uncertainty over the extent to which politics limits political actors. Here again, Griffith would reply that the question of precisely what limits should be imposed on political actors is itself a question on which views will conflict, and thus any answer arrived at is necessarily temporary.

111. Griffith, above n 1, at 15.

112 Dyzenhaus, above n 17, at 11. Whilst it is reasonable to suggest that part of the appeal to progressives of political constitutionalism lies in the coincidence of social forces and democratic forces throughout much of the twentieth century, the history of social reform is more ambiguous than this narrative permits. As Anthony Wright chronicles, there were ‘punctuations of discontent along the way’ with stinging progressive critiques of parliamentary democracy ‘sometimes on the grounds that British governments were too tyrannical and needed constraining in the interests of democracy, and sometimes on the grounds that British governments were too inhibited…and needed strengthening if a democratic majority was to get its way’ and ‘sometimes on both grounds together’: see A Wright ‘British socialists and the British constitution’ (1990) 43 Parliamentary Affairs 322 at 330. Unsurprisingly, the most vocal criticism came after the Labour minority government led by Ramsay MacDonald (1929–1931) and during the MacDonald-led national government (1931–1935). For a pessimistic critique, see Laski, HJ The Crisis and the Constitution: 1931 and After (London: Hogarth Press, 1932).Google Scholar For a more measured critique, see Jennings, above n 107.

113. Griffith, above n 47, at 63.

114 For more on this, see Elster, J Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (Cambridge: Cambridge University Press, 2000).CrossRefGoogle Scholar

115. Griffith, above n 1, at 19.

116. Loughlin, above n 84, at 434.

117. D Castiglione ‘The political theory of the constitution’ (1996) XLIV Political Studies 417 at 421.

118. J Tully ‘The agonic freedom of citizens’ (1999) 28 Economy & Society 161 at 162–163.

119. Ibid, at 163.

120. Ibid.

121. Griffith, above n 1, at 5.

122. JAG Griffith ‘Comment’ [1963] PL 401 at 402.Google Scholar

123. Loughlin Public Law and Political Theory, above n 49, pp 139–162 and 184190.

124. Franco, P The Political Philosophy of Michael Oakeshott (New Haven: Yale University Press, 1990) p 7. Google Scholar

125. Oakeshott, M Political education’ in Oakeshott, M Rationalism in Politics and Other Essays (Indianapolis: Liberty Fund, 1991) p 56. Google Scholar This essay first appeared in 1951.

126. M Cranston ‘Michael Oakeshott: a Conservative sceptic’ [1967] Encounter 82.Google Scholar

127. Ibid, at 82.

128. Soininen, S From a ‘Necessary Evil’ to the Art of Contingency: Michael Oakeshott's Conception of Political Activity (Exeter: Imprint Academic, 2005) p 20. Google Scholar

129. For an excellent discussion of Oakeshott's conservative disposition, see Franco, above n 124.

130. M Oakeshott ‘On being a Conservative’ in Oakeshott, above n 125, p 408.

131. J Gray ‘The undoing of Conservatism’ in Gray, above n 22, p 105.

132. Loughlin, Public Law and Political Theory, above n 49, p 83.

133. Dyzenhaus alludes to this, suggesting that Oakeshott's ‘romantic understanding of the political constitution’ has been ‘influential on the left in England, despite Oakeshott's own right-wing individualistic stance’: see Dyzenhaus, above n 17, at 22.

134. Loughlin draws upon Oakeshott's work to help explain what he terms ‘the conservative normative’ school of thought in public law: Loughlin, Public Law and Political Theory, above n 49, pp 64–83. Loughlin also draws frequently upon Oakeshott in The Idea of Public Law, above n 19.

135. For a useful exception, see J Stapleton ‘Dicey and his legacy’ (1995) 16 History of Political Thought 234.

136 SA Gerencser ‘A democratic Oakeshott?’ (1999) 52 Political Research Quarterly 834 at 835. See generally Gerencser, SA The skeptic's Oakeshott (Basingstoke: Macmillan, 2000).CrossRefGoogle Scholar

137. I Tregenza ‘Skepticism and democracy in Michael Oakeshott's political theory’ (2001) 63 Review of Politics 617 at 619. Examples include John Gray, Chantal Mouffe and Richard Flathman.

138. Oakeshott's changing conceptions of politics are well documented in Soininen, above n 128.

139. Oakeshott, above n 125, p 56.

140. Ibid, p 56. In subsequent writings, Oakeshott would later prefer to talk of practices, rather than traditions; see M Oakeshott ‘On misunderstanding human conduct: a reply to my critics’ (1976) 4 Political Theory 353 at 364.

141. Oakeshott describes traditions as ‘neither fixed nor finished’, ‘flimsy and elusive’ and ‘at once coherent and incoherent’: see Oakeshott, above n 125, pp 57–61.

142. Ibid, p 59.

143. Ibid, p 57.

144. Franco, above n 124, p 139.

145. Oakeshott, M Lectures in the History of Political Thought (Exeter: Imprint Academic, 2006) p 37. Google Scholar

146. Oakeshott, above n 125, p 57.

147. Ibid, p 67.

148. Ibid, p 60.

149. Ibid, p 59.

150. Griffith, above n 122, at 402 (emphasis added).

151. Writing in 1950, Griffith recognised that the appointment of the Prime Minister tends, in fact, to be a straightforward question; see Griffith, above n 4, at 1087.

152. Oakeshott, above n 125, p 47.

153. Foley, above n 19, p 14.

154. Griffith, above n 75, at 384.

155. Ibid, at 385.

156. In other words, Griffith adopts the first of the two readings of Oakeshott's politics discussed in the previous section.

157. Wright, eg, talks of an underlying continuity in Laski's constitutional thought, one that is ferociously orthodox and reflective of a more general constitutional conservatism in socialist thought despite occasional bursts of apocalyptic pessimism: Wright, above n 112, at 330–335. For a critique of this constitutional orthodoxy amongst left-leaning lawyers, see T Prosser ‘Markets, planning and socialism’ (1988) 15 JLS 44.

158. Griffith, above n 97, at 176.

159. Hampshire, above n 34, p 33.

160. Ibid, p 26.

161. Loughlin, above n 19, p 51.

162. Ibid.

163. Oakeshott, above n 125, p 61 (original emphasis).

164. Tomkins, above n 13, p 14.

165. Loughlin, above n 19, p 25.

166. See Bellamy and Castiglione, above n 43.