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Political
Deference in a Democratic Age British Politics and the Constitution from the Eighteenth Century to Brexit
Catherine Marshall
Chaim: Palgrave
Macmillan, 2021 Hardcover.
x+354 pages. ISBN 978-3030625382. £90
Reviewed by Noel
O’Sullivan Hull University
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’ [1]. 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’ [249]. 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. [118] 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. [249] 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’ [279].
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. [279] 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’ [288]. 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’ [116]. 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’ [320]. 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’ [301]. 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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