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Published online by Cambridge University Press: 02 January 2018
1 JM Balkin ‘Deconstructive practice and legal theory’ (1987) 96 Yale LJ 743 at 746, et seq.
2 Ibid, at 747.
3 A binary opposition between ‘strenuous liberty’ and ‘bondage with ease’ shapes Milton's thinking. See J Milton ‘Samson Agonistes’ in John Milton: The English Poems (London: Wordsworth Editions, 2004) L Lerner, intro (originally published in 1671) at 488 (lines 268–271).
4 It seems apt to describe the tradition we are considering as politico-legal since those who have contributed to it have seen law as a means by which to pursue political goals and/or as an institution that places limits on the exercise of political power. Moreover, contributors to this tradition have expressed a wide range of views on the relationship between law and politics. However, contributions to this tradition share a common style (which is egalitarian in orientation). On a ‘common style’ and ‘contrasts’ (or ‘unity in diversity’) as features of a tradition, see WH Greenleaf The British Political Tradition, Vol I, The Rise of Collectivism (London: Methuen, 1983) pp 9 and 12.
5 Cf S Schama A History of Britain, Vol I, At the Edge of the World? 3000BC–AD1603 (London: BBC, 2003) p 60 (on King Alfred's ‘fervent conviction’ that ‘possession of knowledge’ is the most effective constraint on the exercise of monarchical power).
6 See FW Maitland The Constitutional History of England (Cambridge: Cambridge University Press, 1974 (originally published in 1908)) p 501 (on Britain's development, in the nineteenth century, into a ‘much-governed nation’).
7 For a more recent and even more emphatic variation on the same theme, see K Ewing Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law (Oxford: Oxford University Press, 2010) p 7 (arguing that ‘New Labour's singular achievement [is] to make us pine for the halcyon days of Freedom under Thatcher’). See also ‘Ben Wilson and Andy Beckett discuss liberty in the seventies’, available at http://www.youtube.com/watch?v=15XlsksyPMo (on, inter alia, the commitment to liberty shown by Roy Jenkins (while occupying the post of Home Secretary in Harold Wilson's Labour Government between 1974 and 1976)).
8 See also Brink, DO Perfectionism and the Common Good: Themes in the Philosophy of TH Green (Oxford: Clarendon Press, 2003) pp 42–44 CrossRefGoogle Scholar. See also p 128.
9 HM Government, Policy Review Building on Progress: The Role of the State (London: Cabinet Office, 2007).
10 See A Sen Identity and Violence: The Illusion of Destiny (London: Penguin Books, 2006) p 156, et seq.
11 Ibid, p 157.
12 Ibid, p 113 (on ‘cultural liberty’ and the ‘presumption of insularity’ that Sen associates with plural monoculturalism).
13 Wilson, takes the phrase ‘social heritage’ from HJ Laski Liberty in the Modern State (London: Allen & Unwin, 1937) p 80.Google Scholar
14 K Palonen Quentin Skinner: History, Politics, Rhetoric (Cambridge: Polity Press, 2003) pp 5, 38, 52.
15 Berlin, I The Crooked Timber of Humanity: Chapters in the History of Ideas (London: Pimlico, 2003) p 13.Google Scholar
16 See also B Wilson, p 183 (stating that ‘[a]ll good things could not come at once; the pursuit of social justice conflicted with some people's liberty’).
17 Berlin, above n 15, p 17.
18 I Berlin Four Essays on Liberty (Oxford: Oxford University Press, 1969) p 122.
19 Ibid, p 123, n 2.
20 Ibid, pp 132–133.
21 On governmental efforts to close the gap between the empirical and the ideal self. See I Berlin in H Hardy (ed) The Power of Ideas (London: Pimlico, 2000) p 112.
22 W Woodward ‘Blair seeks radical changes to boost the Criminal Justice System’Guardian 24 June 2006 at 4.
23 A Blair ‘I've been tough on crime: now we have to nip it in the bud’Daily Telegraph 28 April 2007 at 26.
24 See M Oakeshott ‘The concept of government in modern Europe’ in N O'Sullivan (ed) The Vocabulary of a Modern European State (Exeter: Imprint-Academic, 2008) pp 93–105 and 232–266.
25 M Oakeshott in T Fuller (ed) Rationalism in Politics and Other Essays (Indianapolis, Indiana: Liberty Fund, 1991) p 424.
26 Ibid, p 426.
27 CR Sunstein ‘The idea of a usable past’ (1995) 95 Columbia LR 601.
28 Ibid, at 601.
29 Ibid, at 603.
30 Ibid, at 601–602.
31 Ibid, at 601.
32 Ibid, at 602.
33 Ibid, at 603.
34 See JR Searle The Construction of Social Reality (London: Penguin Books, 1996). Searle has recently refined his arguments concerning the construction of social reality in JR Searle Making the Social World: The Structure of Human Civilization (Oxford: Oxford University Press, 2010).
35 Searle The Construction of Social Reality, above n 34, p 59.
36 Ibid, ch 3.
37 In light of the two steps in the process Searle describes, we can classify the declarations that mark its beginning as (successful) ‘performatives’: statements that identify, and play a necessary (but not sufficient) part in establishing a particular state of affairs as a feature of social reality. See Searle Making the Social World: The Structure of Human Civilization, above n 34, pp 68 and 91.
38 Ibid, p 105. See also p 106 (where he states that the ‘creation’ of institutional fact is ‘really just words, words, words’, and adds that ‘we get away with it to the extent that we get other people to accept it’).
39 Searle The Construction of Social Reality, above n 34, pp 23–26 and 46.
40 Goods such as ‘liberty’ provide a basis for the ‘communion’ that is, on Benedict Anderson's analysis, a necessary condition of ‘imagined political community’. See B Anderson Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1983) pp 5–6.
41 On ‘multiculturalism’ as a site of conflict, see K Malik From Fatwa to Jihad: The Rushdie Affair and its Legacy (London: Atlantic Books, 2009) pp xix–xx.
42 The analysis offered in the text may prompt the objection that natural languages such as English comprise thousands of words and that speakers are able to retain the (general) meaning of many of these words. This is true. But an objection along these lines would pay insufficient attention to the work done by words like ‘liberty’, ‘democracy’, and ‘human rights’. As we have noted, these words play a prominent part in the construction of social reality in societies such as Britain. While linguistic frailties such as ambiguity, vagueness, and penumbral indeterminacy afflict them, they must be bearers of meaning sufficiently clear to provide the basis for coordinated action. See also T Hobbes in R Tuck (ed) Leviathan (Cambridge: Cambridge University Press, 1991) p xvii (on the sovereign's ability to ‘determine the meanings of words in the public language’ and, thereby, exercise a form of ‘epistemic power’ that coordinates human conduct).
43 A MacIntyre After Virtue: A Study in Moral Theory (London: Duckworth, 2nd edn, 1985) p 165.
44 Ibid, p 233. (‘Lack of clarity’ of the sort referred to in the text is not simply a function of the linguistic frailties to which all language is prey. For the social context described by MacIntyre is not one in which we find an interpretive community shaped by shared purposes, goals, values, and procedures. As a result, people often find themselves struggling to make sense of statements that give expression to assumptions they do not share and of which they may be only dimly aware. On interpretive communities, see SE Fish Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge, Massachusetts: Harvard University Press, 1980) pp 303–304 and 316. See also L Wittgenstein [GEM Anscombe (transl)]Philosophical Investigations (Oxford: Basil Blackwell, 3rd edn, 1976) p 89 (section 242) and p 226 (on the relationship between forms of life and agreement in judgments).
45 MacIntyre, above n 43, pp 6 and 21.
46 Ibid, p 256.
47 Ibid, p 50. See also p 253.
48 J Rawls in S Freeman (ed) Lectures on the History of Political Philosophy (Cambridge, Massachusetts: Belknap Press, 2007) pp 10–11.
49 R Mullender ‘Democracy in the Land of Good Things (Britain)’ (2010) 81 Political Quarterly 146.
50 P Ackroyd Albion: The Origins of the English Imagination (London: Vintage, 2002); R Colls Identity of England (Oxford: Oxford University Press, 2002); Greenleaf, above n 4.
51 J Vasagar ‘Niall Ferguson: school history lessons “lack all cohesion”’Guardian 29 March 2011, available at http://www.guardian.co.uk/education/2011/mar/29/niall-ferguson-school-history-lack-cohesion?INTCMP=SRCH (noting Ferguson's complaint that the history curriculum in British schools is concerned with ‘odds and sods’ rather than a ‘long arc of time’).
52 JAG Griffith ‘The political constitution’ (1979) 43 MLR 1; T Poole ‘Tilting at windmills? Truth and illusion in “the political constitution”’ (2007) 70 MLR 250; A Tomkins ‘In defence of the political constitution’ (2002) 22 OJLS 157.
53 JAG Griffith ‘Judicial decision making in public law’[1984] PL 564 at 564.
54 HLA Hart The Concept of Law (Oxford: Clarendon Press, 2nd edn, 1994) p 95.
55 R Mullender ‘Parliamentary sovereignty, the constitution and the judiciary’ (1998) 49 Northern Ireland Legal Quarterly 138. See also A Tucker ‘Uncertainty in the rule of recognition and in the doctrine of parliamentary sovereignty’ (2011) 31 OJLS 61 at 78–79.