Political Deference in a Democratic Age
British Politics and the Constitution
from the Eighteenth Century to Brexit
Chaim: Palgrave Macmillan, 2021
Hardcover. x+354 pages. ISBN 978-3030625382. £90
Reviewed by Noel O’Sullivan
For Brits still bemused by the debate about the nature of their constitution triggered by the Brexit saga, timely assistance from Europe is at hand. It has been provided by the French intellectual historian, Professor Catherine Marshall, in an excellent study of the theory and practice of British constitutionalism since the eighteenth century. Professor Marshall mentions at the beginning of her book that while writing her PhD on Walter Bagehot at the Sorbonne Nouvelle, she ‘had a feeling that understanding England was out of the reach of non-English people’. She may now be assured that her self-doubt was completely misplaced: her absorbing book is a triumphant demonstration of her ability to take the full measure of English political and constitutional life.
Expanding on her earlier study of Bagehot, the unifying theme of Professor Marshall’s penetrating study is the persuasive case she makes for assigning the concept of deference a central role throughout British constitutional history, undeterred by the objections she is profoundly conscious this will provoke. In a series of incisive responses to their treatment of deference, she criticises as superficial the political scientists who have abandoned the concept on the ground that it has no place in the egalitarian and permissive ethos of an advanced democratic society. In the case of political philosophers, Professor Marshall is undaunted by their claim that the concept inevitably contains ideological overtones which deprive it of all analytical value. In the case of sceptical historians, she takes issue with their claim that the concept either never accurately described English social and political reality, or else offered at best only an overly simplistic interpretation of it.
Although deference of some form is a universal feature of societies, Professor Marshall is primarily concerned to use the concept ‘to describe a type of political respect specific to the Anglo-British constitution’ . In this specifically English form, Professor Marshall maintains, deference never connotes servile submission to power or class domination, as is frequently assumed. Although it has taken a hierarchical form, this has rested, not on coercion of any kind, but on what Professor Marshall terms ‘voluntary rational deference’. Voluntary rational deference, she fully acknowledges, has ‘often incorporated involuntary elements via tradition and ritual’ [5-6]. Historically, the English form of deference gradually evolved from tradition-based voluntary deference towards the constitution while it was dominated by the Whig aristocracy, to the rational deference towards it of the nineteenth-century middle class, and thereafter, in varying degrees, to the continuing rational deference towards it of the democratic age. What characterises the English form of rational deference throughout this evolution is a peculiarly English respect not only for ‘customs and mores, but also [for] independence of thought, responsibility and love of freedom, much more [historically] anchored than in any other countries, precisely because England had forged its political story on a much longer historic basis’ .
In order to appreciate both the strengths and limitations of the English form of deference, as well as the contemporary problems faced by the British constitutional tradition, Professor Marshall returns to the thought of Bagehot, the thinker with whom the concept of deference is most closely associated. For Bagehot, the distinctive English political achievement was a style of politics based primarily on discussion. What facilitated the English politics of discussion, as well as giving it a viable form in practice, was a system of cabinet government which fused the legislative, executive and judicial components of the constitution in a parliamentary form of government. The accountability of the executive to parliament ensured that power was not abused. In order for the system to operate successfully, Bagehot maintained, two principal conditions were necessary. The first was a long-established British distrust of the state. English freedom Bagehot wrote, ‘is the result of centuries of resistance, more or less legal, or more or less timid, to the executive Government’. The second condition for English freedom was an organic link between the constitution and the populace. Such a link, Bagehot believed, could not be provided by a written or codified document but depended entirely on the harmonious operation of two distinct kinds of national deference. One was the uninformed, but uncoerced, irrational deference of the politically inept mass of the population towards the Whig aristocracy. This tradition-based deference was reinforced by the sense of mystery and enchantment which surrounded the aristocracy in general and the monarchy in particular. Whether the mass would remain deferential in the egalitarian age of democratic disenchantment was a matter of grave concern to Bagehot. The other kind of deference was the rationally based deference for the constitution provided by the politically educated governing elite whose members realised it balanced freedom with the requirements of order.
In a lucid narrative permeated by her deep sense of political drama, Professor Marshall traces the developments by which Bagehot’s vision of the constitution was gradually destroyed. The traditional English suspicion of the state which he valued, she observes, was already being undermined in Bagehot’s own lifetime by utilitarian and Idealist thinkers who saw in it a benign instrument for pursuing the greatest happiness of the greatest number. During the twentieth century the gradual English embrace of state action was finally completed with the adoption of the welfare state after the Second World War. Long before that, the parliamentary politics of discussion at the heart of Bagehot’s interpretation of the constitution was superseded by the growth of mass political parties, along with the advent of a professional political class devoted to personal career advancement. Above all, there was the constant growth of a prime ministerial mode of government facilitated in particular by two world wars. Professor Marshall is especially instructive when she analyses the erosion of judicial restraints on executive power which occurred during the First World War in the case of R. v. Halliday, ex parte Zadig (1917). The disturbing judgement in this case was that an executive which acted ultra vires (beyond, that is, the power conferred by statute) in denying personal liberties to a British subject who had not broken the law would not be called to account by the judiciary provided the government pleaded that it acted at a time of national emergency. In Professor Marshall’s words, the Zadig judgement
showed that the judiciary could be subordinated to the executive out of deference. In such a case, the whole fragile equilibrium of the constitution which rested on the Parliament enacting the law, on the judiciary guarding the liberal spirit of the law, and on the people trusting the system through deference, was in great danger of being dominated by the executive.
The story of deference after World War I is succinctly summarised by Professor Marshall as follows:
[It] is about how the remains of irrational Whig deference that carried the day in 1911 [when the House of Lords survived, despite the Parliament Act ending its hereditary composition] died in December 2019 at the time of the general election over the future of Brexit and how rational respect for the uncodified constitution, severely compromised over the century, was revived in a type of popular constitutionalism bent on defending parliamentary sovereignty, the identity of the Anglo-British Constitution and the role of England in the United Kingdom and in Europe. 
In this story of the ravages inflicted on the surviving bits of Bagehot’s vision of the constitution during the twentieth century, Professor Marshall focuses in particular on the role played by Mrs. Thatcher and her New Labour successors. Despite Mrs. Thatcher’s overtly deferential commitment to Victorian values, she was even more committed to defending meritocracy. The result was that what remained of the old Victorian mentality was in practice completely dismantled in both its institutional and attitudinal embodiments. Claiming to reject the post-1945 state centralism of social democratic welfare policy promoted by the Beveridge Report, Professor Marshall writes that she actually
centralised power far more than decentralising or even reducing it; she made money-making a virtue to the extent that the culture of money replaced the moral values she wanted to promote, and she did not lead a cultural revolution in social attitudes because the gap grew between the rich and the poor during the 1980s. 
By the 1990s, the heritage of Thatcherism had left deference of any kind in such a precarious position that the legitimacy of government was seriously undermined. Not surprisingly, demand had steadily grown during the 1980s for a restoration of constitutional balance and new checks on executive power, the aim being to renew trust in government and end increasing political apathy. It was to this demand that Blair’s New Labour manifesto claimed to respond while simultaneously bringing the constitution ‘in line with democratic demands for more equality and greater representation’ . More precisely, as Professor Marshall explains, the echo of republican idealism that inspired New Labour aimed
to move away from the idea that only some were entitled to be in charge and instead to rationally pin down the constitution [in order] to limit the power of the executive, divide legislative powers with the nations of the United Kingdom, allow more independence to the judiciary, and give more power to the people. 
In the event, even the long-established principles of parliamentary sovereignty and the rule of law were to be undermined by the enlarged role given to the judiciary by the Human Rights Act of 1998, while measures promoting devolution succeeded only in creating ‘a semi-finished settlement that is both confused and transformative’ .
With New Labour constitutional reforms, then, the Bagehotian fusion of powers which had been the foundation of English constitutionalism finally came to end, along with whatever coherence the concept of a unified British state had ever possessed. Before considering Professor Marshall’s analysis of the current situation, however, a brief return to Bagehot himself will add a further dimension to Professor Marshall’s belief in his continuing relevance for the subsequent story of Anglo-British constitutionalism. A prophetic aspect of Bagehot’s analysis of the principal dangers confronting the constitution is found in the introduction to the second edition of The English Constitution. There, Bagehot qualified his optimism about the ability of parliamentary discussion to check misrule by remarking on the difficulty a parliamentary government has ‘of maintaining a surplus revenue to discharge debt’. Although Bagehot did not pursue the theme of parliamentary incontinence in matters of public finance, it is worth noticing that his misgiving had been anticipated in more dramatic words by Adam Smith a century earlier. In the concluding chapter of The Nature and Causes of the Wealth of Nations, Smith had envisaged the ultimate self-destruction of parliamentary governments by their reliance on the ease of obtaining credit in modern commercial states. This has meant, Smith wrote, that ‘Nations, like private men, have generally begun to borrow upon what may be called personal credit, without assigning or mortgaging any particular fund for the payment of the debt’. If left unchecked, Smith observed, this tendency will ‘in the long-run… probably ruin’ the nations which indulge it. The topical nature of the pessimism of Bagehot and Smith about parliamentary conduct of public finance need hardly be stressed.
Turning from Bagehot back to twentieth-century thinkers, there are three in particular to whom Professor Marshall might have turned in order to highlight still further the problems faced by Anglo-British constitutionalism. In the course of her close examination of English political thought during the decades after the Second World War, Professor Marshall rightly mentions Michael Oakeshott’s critique of rationalism as evidence of continuing appreciation of the relevance of deference for English constitutional history. She might, however, have drawn further on Oakeshott’s work to support her observation, when discussing the politics surrounding the Home Rule Bill on the eve of the First World War, that ‘it was clear that the constitution could be made to say what anybody wanted it to say’ . She could have done this by referring to Oakeshott’s most important insight into British political thought in the modern period. This is his emphasis in On Human Conduct (1975) on the systematic ambiguity of the entire British political vocabulary, including the concept of constitutionalism itself. The ambiguity takes the form of a tension between two ultimately incompatible conceptions of constitutionalism. One is a non-instrumental ideal of civil association based on a procedural or formal conception of the rule of law as the essence of a liberal state. The other is the conception of a constitution as an essentially purposive organisation of citizens in the pursuit of a more or less benign substantive vision of the good society. Oakeshott’s own preference for the ideal of civil association is echoed by Professor Marshall herself in her concluding sentence, to the effect that the only way forward for the English at the present day is for them to recapture, by some means or other, ‘a sense of the civil art of politics which has made Britain such a successful and captivating state’.
While Oakeshott emphasises the intrinsic ambiguity of the English constitutional ideal, two of his near contemporaries had previously illuminated a crucial ambiguity in the concept of ‘rational deference’ itself which Professor Marshall passes over perhaps a little lightly. Before the end of the Second World War, both Alfred Cobban (in Dictatorship, 1939) and Ernest Barker (in Reflections on Government, 1942) had appreciated that the most radical challenge to prevailing English interpretations of parliamentary sovereignty would not be the danger of elective dictatorship subsequently highlighted during the 1970s by Lord Hailsham, as Professor Marshall notes. They saw it was more likely to come instead from the transformation of what survived of constitutional democracy into the anti-constitutional populist politics portrayed by the Nazi jurist, Carl Schmitt, for whom the essence of the political can be reduced to the existential hostility between Friend and Foe. From Schmitt’s point of view, debates about the location of sovereignty in the English constitution engaged in by such notable descendants of Bagehot as Dicey and Jennings – debates examined by Professor Marshall with admirable thoroughness – completely failed to understand the true nature of sovereignty. This is the ability to define the Foe. Whether the Foe is a genuine threat, Schmitt emphasised, is irrelevant: all that matters is that the Friends believe that the Foe is real. Only the identification of the Foe, whether real or unreal, Schmitt maintained, can unite citizens in a truly organic form of community. In such a community there is no place for a parliamentary politics of discussion of the kind Bagehot favoured, or for the cadenced pattern of rational deference he believed the parliamentary system required.
Once sovereignty is properly understood, Schmitt holds, the only truly ‘rational’ form of deference is unconditional support for a leader capable of identifying the common Foe. To balance or check the leader, or to demand any form of accountability, would be profoundly destructive. A contemporary echo of Schmitt’s concept of the political was recently heard in Trump’s extra-constitutional interpretation of his status as American president and will be heard again in every advocacy of populist politics. As was just remarked, what is potentially at stake in such cases is something more than Lord Hailsham’s fear of an emerging elective dictatorship: it is a conception of the political which renders politics indistinguishable from a permanent condition of war. Within this conception of the political, the concept of rationality ceases to have any connection with theories of the limited or constitutional state that invoke, in particular, any concept of law. Law is replaced by the personal will of the leader, and what rational deference entails in this context is unquestioning commitment to his personal conduct of the battle against the Foe – whatever he says the Foe happens to be.
Professor Marshall ends her perceptive analysis of Anglo-British constitutionalism with a stern critique of Brexit that is likely to ruffle a few feathers on the English side of the Channel (the reviewer has smoothed his own). Brexit, she writes, ‘was not concerned with the adequacy of the institutions of the European Union, but rather with the inadequacy of those of the United Kingdom’. What inspired Brexit, in Professor Marshall’s view, was ‘England’s lack of self-confidence… linked to the decline of deference, [which] made it unable to trust the European Union...’ Indignant Brexiteers might respond that while Brexit may turn out to have been an act of hubris, it hardly displayed a lack of self-confidence. As for trust in the European Union, Brexiteers might appeal to Hume’s insistence that the essence of political wisdom in a free society is not trust but prudence. ‘Political writers’, Hume remarked, ‘have established it as a maxim, that, in contriving any system of government, and fixing the several checks and controls of the constitution, every man ought to be supposed a knave…’ If we forget this, Hume added, ‘we shall in vain boast of the advantages of any constitution, and shall find, in the end, that we have no security for our liberties or possessions, except the good-will of our rulers; that is, we shall have no security at all’. (Hume, ‘Of the Independence of Parliaments’.)
This minor cavil should not, however, detract from the cogency of Professor Marshall’s reflections about the likely future of constitutionalism in a post-Brexit Britain in which the unity of the United Kingdom is uncertain and remaining restraints on executive power are precarious. So far as any surviving part of the constitutional past retains a unifying role of any significance, she writes, it is the monarchy. Although she believes that the coming generation of the royal family will never be able to match the link with the past forged over decades by Elizabeth ll, ‘it can usefully keep on generating rational deference for the monarchy by bringing the nation together in ways no politician can ever hope to do’ . This, of course, remains to be seen.
More generally, however, Professor Marshall regards the principal post-Brexit British constitutional requirement as a retrieval of ‘the noble and positive aspects of the old rational deference, this time for the democratic age’ . In twenty-first century Britain, she writes, ‘the challenge is to artificially recreate English rational deference to the new constitution which is partly codified’, and to do so in a way which takes account of the now clearly exposed national differences of the countries composing the United Kingdom [290. Italics in the original text]. Professor Marshall immediately acknowledges that ‘Needless to say, this is a very trying project’. So far as she envisages possible ways in which the artificial retrieval of rational deference might be brought about, Professor Marshall advocates a combination of a virtuous elite presiding over a more real equality and more genuine creative freedom, as called for by Milbank and Pabst, on the one hand, with Philip Soper’s call for an ‘ethics of deference’ uniting self-respect with respect for others, on the other.
Although Professor Marshall’s vision of an Anglo-British constitutional future based on an artificially restored rational deference may seem a little optimistic to sceptics who doubt whether the requisite virtue will materialise, her timely book offers a rare combination of comprehensive historical scholarship and critical political insight which makes it indispensable reading for those interested in both the past and the present of Anglo-British constitutionalism. It deserves, indeed, to become a standard reference work on that subject.
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