THE POLITICAL ARCHITECTURE OF FEDERALISM

THE POLITICAL ARCHITECTURE OF FEDERALISM by Andrew Fraser 1 Anyone who has suffered, in the recent past, from total immersion in the cruel sea of mindless vocationalism and hopeless boredom which is North American legal education, was bound to seize upon the emergence of the critical legal studies movement as a kind of intellectual life-raft. My own first encounter with the CLS movement came as just such a providential relief. In the late 1970s, the work of many of the embryonic group's leading figures seemed to offer a worthwhile alternative to the Marxist insistence upon reducing law to the status of a superstructural emanation of a logic of domination firmly embedded within a selfpropelled capitalist system of needs. The critical legal scholars' emphasis on the doctrinal incoherence and institutional indeterminacy of modern legal consciousness suggested that the forms of the law constituted a source of domination enjoying at least a "relative autonomy" from any set of systemic imperatives rooted in the capitalist mode of production, per se. Modern legal consciousness could not, we learned, be understood simply as the juridical expression of the developmental logic of the accumulation process. The law, in other words, represented something other than a simple instrument of bourgeois class interests. The antinomic structure of modern legal consciousness itself subverts every doctrinal effort to identify the class interests of the bourgeoisie with the universal interest of the community-at-large. Every legal doctrine which . aims to give substantive priority to the essentially private interests rooted in the capitalist system of needs can be met routinely with a contradictory set of doctrinal imperatives grounded in the legal image of the state as a public authority representative of the people-at-large, including those who are functionally superfluous to the process of accumulation. The formally private status of the system of needs which nourishes the life of modern civil society can be invoked to resist the extension of public control over self-interested activity in the market place. But that doctrinal ploy can be met in turn by juridical recognition of the actual governmental powers exercised by nominally private corporate entities. The antinomic opposition between legal forms and the political and social realities which confront modern legal consciousness work, in effect, to subordinate the logic of capitalist development to the contradictory imperatives of a doctrinal practice bound to acknowledge the contingent validity of several competing modalities of state and private power. From being a merely superstructural phenomenon, the law 1. School of Law, Macquarie University becomes an independent source of domination in its own right. So far, so good. My own difficulties with the critical legal studies movement began when I tried to make sense of its claims regarding the developmental logic of legal modernity. On the analysis of leading CLS scholars, legal modernity is an essentially holistic experience dominated by the antinomic structure of liberal thought with its fated oppositions between reason and desire, public and private, objective and subjective, rules and standards and so on. The doctrinal antinomies of liberal legalism represent the crystallised essence of the illegitimate hierarchies and fixed social roles guaranteed by a doctrinal practice which claims to have discovered the natural legal language of democracy or the market. Law exists, in the eyes of CLS adherents, as a species of false consciosness which blocks us from exploring the wonders and delights of a post-modern human experience which could collapse and thereby overcome the sterile oppositions of liberal legalist thoughtZ The problem with the CLS vision of emancipation is the holistic account of legal modernity which is identified, tout court, with liberal legalism. Since liberal legalism holds up the antinomic and formally unbridgeable chasm between public and private as the very essence of legal modernity, an emancipated post-modern legal consciousness must collapse and overcome the fundamental dichotomy between law and politics if it is to redeem the promise of a cultural revolutionary practice whose "structure denying structures" provide the best practical guarantee of a continual progression towards ever-higher forms of social life. The law as such, understood as a discursive and hermeneutic practice distinguishable from the ordinary political conflicts over the terms of our collective existence, can play no useful role in the struggle to make and unmake society The whole point of the emancipatory project, as conceived by the critical legal studies movement, is to empower the ne\\r social movements whose very existence attests to the self-transformative and self-ordering potential locked up within the entrenched power orders dominating the life of modern civil society. The key which might release the creative and transformative energy of a free society lies buried beneath the psychic and institutional structures of a reified legal consciousness which persists in the 2 The work of Roberto Unger and Duncan Kennedy has been the seminal influence in shaping the CLS view of legal modernity. See R. Unger, Knowledge and Politics. New York, 1975, and Law in Modern Society: Toward a Criticism of Social Theory. New York, 1976; also D. Kennedy, "Form and substance in private law adjudication", (1974) 89 Harvard Law Review 1685 and "The structure of Blackstone's Commentaries", (1979) 28 Buffalo Law Review 205 futile search politics for the illusory boundary between law and Constitutional Modernity and the British Dominions The rambunctious zeal displayed by critical legal scholars in their determination to dissolve the public/private distinction as the reified essence of legal modernity poses something of a problem for critical legal thought outside the United States and, particularly, for those of us attempting to overcome the intellectual and critical paralysis engendered by daily contact with the constitutional traditions of the old British Dominions, in both Canada and Australia. By American standards, the theory and practice of constitutional discourse within the ' Westminster tradition, as reincarnated in the old settler Dominions, is distinctly pre-modern in character. The continued existence of the hereditary Crown formally belies the liberal legalist separation of private social status from the right to wield public authority. The conventional restraints which curb the absolute powers of the Crown in and out of Parliament are routinely denied recognition in the formal constitutional doctrines binding on the courts of the British Dominions. It is, of course, easy to dismiss the monarchy as a residual and archaic remnant of a vanished feudalism, but hard to deny the practical, doctrinal and legitimation problems which result from the permanent inbuilt contradiction between the monarchical forms of the Dominion constitutions and the polyarcha1 and corporatist realities of their political and social life The ever-present possibility of a rupture in the accustomed relationship between supposedly archaic constitutional forms and the substantive normative requirements of organised civil and political life in a modern nation-state suffices, in itself, to ensure that the creation of the Canadian and Australian republics retains a permanent - if endlessly deferred - place on 3 Peter Gabel, "The phenomenology of rightsconsciousness and the pact of the withdrawn selves", (1984) 62 Texas Law Review 1563; Roberto Unger, "The Critical Legal Studies Movement", (1983) 96 Harvard Law Review 561 the agendja Dominions of constitutional reform in the British In the United States, by contrast, the fact that the idea of the republic has: been wholly absorbed into the jurisprudential language of liberal legalism has led CLS scholars to universalise what is, in fact, a distinctively American experience of legal modernity The fact that the United States became the "first new nation" to formally create a government based upon the authority of the sovereign people-at-large has allowed American lawyers to treat the republic as an already accomplished constitutional reality whatever its substantive failures may have been since its foundation. The historical self­ understanding of the American community-at-large, as it has developed through time, has always been punctuated by a recurrent and deeply compelling sense of moral and spiritual declension from the heights of civic virtue once atttained in the early republic. The CLS version of American legal history simply registers the seemingly inevitable corrosion of republican ideals which once stood in stark opposition tq. the essential indeterminacy of liberal legalist thought. Legal modernism begins with the recognition that there is no natural or necessary form of the republic. A recent study of Daniel Webster has been received by Robert Gordon, a leading figure in CLS, as an allegory of the [legal] profession’s decline from independent public service into .dependence upon factional patronage. Lawyers not only of Webster’s own generation, but ever since, have with astonishing frequency described their own experience of their history and situation as such a declension. The persistent hymn of self­ congratulation that dominates the rhetoric of the American bar has always included a strong counter-theme of jeremiads lamenting the profession's Fall from the civic virtue of the makers of the Revolution and the 4. Such disjunctive moments in the constitutional history of the British Dominions have generally been greeted with the escalation of a nationalist rhetoric which aims to sever "the Imperial link" in favour of the principle of popular sovereignty. See e.g. Sol Encel, Donald Horne & Elaine Thompson (eds).Change the Rules! Towards a Democratic Constitution. Harmondsworth, 1977. The book was one of many outraged Australian responses to the dismissal of the Uhitlam Labor government by the Governor-General, Sir John Kerr On the distinction between "law" and "convention", see A V Dicey, An Introduction to the Study of the Law of the Constitution. London (many edns) 5 Robert W Gordon, "Critical Legal Histories", (1984) 36 Stanford Law Review 57, at 114-115. Constitution into tl^e mercenary advantage pursuit of private, factional and For the American legal modernist the republic has always been a faded image only faintly visible in the fossilised remnants of a false legal consciousness which once took seriously the fundamental distinction between law and politics. The American critical legal studies movement accepts the currently dominant historiographical view of republicanism as a failed ideology unable to master the complex conflicts and tensions engendered by political and economic modernity. In the words of J.G.A. Pocock, the American Revolution should be interpreted as "the last great act of the Renaissance" rather than "the first political act of the revolutionary Enlightenment". Other historians have likewise asserted that the ideologically archaic provenance of "the American Revolution has severed the United States from its most conspicuous social analogues around the globe without linking it usefully with the rest of the world". For those historians this novel emphasis on republicanism as an essentially ideological phenomenon offers a possible explanation as to why American republicanism has never appeared as an attractive alternative either to Westminster-style parliamentary government or to Marxist revolution: Marx and Marxists came to identify the imperial ambitions of an American republic pursuing its "manifest destiny" as the arch-enemy of social revolution, while only the promise of American affluence has been exportable to Britain and its self-governing settler Dominions.0 The assumption implicit in this received account of American republicanism is that the forms of Westminster constitutionalism are free of the archaic ideological baggage of republican thought, rendering them somehow better adapted to the developmental requirements of the modern nation-state than the model of republican government adopted in America. That interpretation manages to confuse both the historical meaning of republicanism and its relation to the positive achievements of political modernity. Amidst the prevalent confusion and plurality marking the current state of historical writing on the early republic, one thing is becoming clear: American 6 7 8 Robert W. Gordon, "The Devil and Daniel Webster", (1984) 94 Yale Law Journal 445, at 460. J.G.A. Pocock, "Virtue and Commerce in the Eighteenth Century", (1972) 3 Journal of Interdisciplinary History, at 120. John M. Murrin, "The Great Inversion, or Court versus Country: A Comparison of the Revolution Settlements in England (1688-1721) and America (1776-1816)" in J.G.A. Pocock (ed ), Three British Revolutions: 1641, 1688. 1776. Princeton, 1980, pP 370-371. republicanism is best understood, not as a special or unique sort of political ideology, but as a schema of civic action which aimed to string up some sort of practical linkage between the idea of the republic and the politica^ and doctrinal instruments available for its realisation. The minimum condition necessary to implement that schema of civic action was the formal separation of private social status from the right to exercise political or government authority. Neither the republican schema of civic action, nor the modern nation­ state can now be conceived of apart from the formal constitutional separation of state and civil society. The modern political revolution, wrought by those who spoke in the name of the sovereign people-at-large, posited a collection of abstract [private] individuals - "citizens” - v/hose collective will was supposedly represented by the abstract [public] authority of the new state. The real life of these individuals, as property-owners, religious believers, workers, family men and womennetc, was consigned to the realm of "civil society". The achievement of those minimum preconditions for political and constitutional modernity owes much more to the foundation of the American republic than to the development of the Imperial British state which has provided the model for the style of Westminster constitutionalism practised in the British Dominions Neither Australian nor Canadian constitutional law can be absorbed, without remainder, into the holistic image of an universally triumphant liberal legalism. In both countries, formal constitutional authority has its genesis, not in the impersonal delegated power of the people-at-large, but in a continuing personal bond of allegiance between the Crown and its overseas subjects Under this dispensation, it remains impossible to conceive a formally binding republican schema of civic action. 9 To fully establish the claim herewould require an excursion into the historiography of the American Revolution which is beyond the scope of this article I have undertaken that task in a manuscript now nearing completion. Much of this article is taken from the concluding chapters of that longer work, tentatively entitled, Republicanism Redux? Federalism and the Constitutional Reformationof the British Dominions. A useful introduction to the problems posed by the historiography of the early American republicanism can be found in Robert E. Shalhope, "Republicanism and Early American Historiography", (1982) 39 William and Mary Quarterly (3rd series) 334. 10 Tom Nairn, The Break-up of Britain: Crisis and Neo­ Nationalism . London, 1981, p.16 The colonial reproduction of Westminster constitutionalism is due, not to its superior capacity to meet the multifarious challenges posed by the process of political and economic modernisation, but to the need to accomodate the supremacy of the Imperial Crown-in­ Parliament to the political exigencies of an overseas empire exercising dominion over a vast conglomeration of peoples and cultures. The surrogate Parliaments of the overseas Dominions seemed to achieve at least a partial reconciliation of the beloved principle of Imperial unity under the Crown with colonial demands for responsible government. There was never any question but that the forms of Westminster constitutionalism would provide the ruling model of responsible government in Britain's overseas Dominions. Their adaptation was part and parcel of a continued and largely unchallenged colonial allegiance to the Imperial Crown. The Empire, it has been said, forged in Britain "a state which, although very 'flexible' in certain respects those most noticed and revered by apologists - is incapable of change at a deeper level. On that plane, where the modern principle of nationality really functions, it is bound by a suffocating paralytic pride in its own power and past glories". Doctrinally preserved memories of Empire also remain a potent influence among the legal custodians of the Westminster tradition in Canada and Australia, engendering a persistent confusion as to the ultimate source of constitutional authority in both nations. The constitutional law of British Dominions still invokes the ghost of something very much like the idea of Imperial Federation which inspired turn of the century Tories "at home" and in Dominions alike. In Upper Canada (now Ontario) which, during the mid-nineteenth century, had been relatively open to American legal ideas and influences, the idea of Imperial unity provided a pov/erful counterwieght to the nascent sense of autonomous Canadian nationhood. Indeed by the turn of the twentieth century most Ontarian lawyers had come to believe "that Canada could become a great nation only within the British Empire". By then, "the provincial bar quickly was being transformed into a pill'ar of Empire characterised by zealous transcription of English legal literature, mechanical jurisprudence which was embraced on the basis of its perceived historical necessity, and an apparently rudderless 'search for authority'". This development "resonated well with broadly based tendencies in Ontarian society and was not grounded merely in the internal proclivities of the Bar". On the contrary, "in this period Ontarians representative of virtually all walks of life sought antidotes to the pace and content of latenineteenth-century social change in Britain's venerable traditions, a blend of Anglo-Saxon superiority and 11 Ibid . . p 44 12 ancient political wisdom" At about the same time the Australian federation was founded on what the Australian judges took to be "the primary legal axiom" that "the Crown is ubiquitous and indivisible in the King's dominions. Though the Crown is one and indivisible throughout the empire, its legislative, executive and judicial power is exercisable by different agents in different localities, or in respect of different purposes in the same locality, in accordance with the common law, or the statute law there binding the Crown". It follows that "the supremacy of the Imperial Parliament as a matter of constitutional theory and, in a much modified way, as a matter of constitutional practice, still remains an important part of our legal system." The Imperial Statute of Westminster 1931, despite nationalist protestations to the contrary, did not effect any fundamental change in the constitutional supremacy of the Crown-in-Parliament, if only because that supposed charter of Domonion independence "itself is reliant upon the power of that Parliament for its operation." Despite the occasional victory in the numbers game of judicial review, liberal nationalist lawyers remain hard put to deny the normative force of the legal commonplace, "basic to our institutions of government, that those members of the Commonwealth of Nations continuing under the Crown are subject to the ultimate legislative authority of the Queen in Parliament". That dependence upon a set of allegedly archaic constitutional forms has left the British Dominions in a state of seemingly permanent transition from dependent colonial status to an autonomous nationhood still owing its highest allegiance to the Crown. The problem is that no agreement appears to be possible as to whether that transition has already been effected or. if not, how it might be completed. Liberal nationalists insist that, in practice, whatever be the theoretical explanation, ulitimate authority in this country lies with the Australian people and that, subject to the Constitution and to the State Constitutions which it protects, the Commonwealth Parliament possesses legislative competence to preclude or exclude from Australia and from Australian law the direct operation of the laws, executive actions and judicial decisioyg of any other country including the United Kingdom.12 * 14 12. G. Blaine Baker, "The Reconstruction of Upper Canadian Legal Thought in the Late-Victorian Empire", (1985) 3 Law and History Review 219 at 287, 275, 281. 13 Amalgamated Society of Engineers v. Adelaide Steamship Company (Engineers' Case) (1920) 28 CLR 129, at 152; Kirmani v. Captain Cook Cruises (1985) 59 ALJR 265 at 310 (per Dawson J). 14. Kirmani v Captain Cook Cruises (1985) 59 ALJR 265 at 303 (per Deane J) In reply, the conservative monarchists need do no more than deny the "externality" of the Imperial Parliament. For their purpose, they need not "deny the possibilty of the abandonment of the supremacy of that legislature at some time, but such an occurence would still involve a basic change in constitutional theory and practice ^nd that change demonstrably has not yet occured". The recent proclamation of the Australia Act,1986 (U.K.) does not diminish the force of this argument. That Act, which purports to eliminate the last vestiges of Imperial legislative, executive and judicial authority within the Commonwealth and States of Australia, also declares that it may itself be amended only in accordance with s,12S of the Commonwealth of Australia Constitution Act. 1900 (U.K.) or by an Act of the Commonwealth parliament passed at the request or xv'it’n the concurrence of all the State parliaments. This section of the Australia Act appears to fly in the face of the basic principle that no Act of the Imperial Parliament can bind subsequent Parliaments. But, even leaving that point aside, the indisputable fact remains that neither an amendment procured in accordance with s.128 (whereby proposed amendments must be initiated by both houses of the Commonwealth Parliament and approved by a majority of voters in a majority of the States) nor any ordinary Act of the Commonwealth Parliament can become law in the absence of royal assent to the proposed legislation. The Crown remains as the locus of ultimate constitutional authority in Australia. Given the unitary and indivisible nature of the Crown, the Imperial Crownin -Parliament must still retain the legislative capacity to determine the line of succession to the throne. Liberal nationalists, such as Professor Castles of Adelaide University, have suggested that any future Imperial legislation altering the line of succession would, in accordance with the Australia Act. 1986, have no legal effect in Australia and that the Commonwealth would therefore be required to adopt its own legislation governing the succession to the Crown in right of Australia. This rather far-fetched notion is simply another manifestation of the "rubber stamp" theory of the Crown, according to which Australia is, for all practical purposes, already a republic. Such nationalist conceits simply ignore the substantive raison d'etre of the Crown as the literal embodiment of a continuous tradition of hierocratic rule sanctified by its unbroken roots in the British constitution. The constitutional power to control the line of succession to the throne amounts to a trusteeship in perpetuity over the entire mythic inheritance and doctrinal inheritance which vested in the English Crown during its long historical ascent towards its moments of Imperial grandeur. By its very nature, that mythic inheritance must remain indivisible. The mythological aura surrounding the British Crown simply could not be shared out, severally, among the purely15 15. Ibid. , at 310 (per Dawson J) hypothetical parvenu Kings (or Queens) of Australia, Canada and New Zealand. To break up that mythic patrimony among the erstwhile Dominions of the British Crown would be to destroy it. Viewed from a liberal legalist perspective, Britain and her overseas Dominions continue to lag behind the American republic in developing the constitutional forms associated with the sovereign nation-state. In fact, because of its developmental priority in what might be called the first wave of republican modernisation, the "transitional" British state, in particular, "could not itself be 'modern*. Neither feudal nor modern, it remained obstinately and successfully intermediate: the midwife of modern constitutionalism, perhaps as much as a direct ancestor". According to Tom Nairn, the British state order "replaced late-feudal monarchy by a rule which was - as it remains today - patrician as well as representative. Because in the original case a spontaneously emergent bourgeois 'civil society' created the state, pragmatically, civil society retained an unusual dominance over the state". In contrast to the situation in the newly independent American states, the hegemony of the English patrician elite within both state and the surrounding bulwarks of civil society has never really been cast into doubt. The extraordinary persistence of that patrician hegemony owes much to England's place in the history of overseas exploration: "the new English state's ascendancy over its competitors in colonisation accompanied the crystallisation of its internal forms". By the late eighteenth century that patrician hegemony had been institutionalise.cL securely in the parliamentary guise of "Old Corruption". Nairn's work demonstrates that the forms of Westminster constitutionalism developed in Bristain were quite distinct from "the impersonal delegated apparatus to be formulated in 19th century constitutionalism" The preoccupation of the British state "with overseas and naval-based exploitation required, above all, conservative stability at home. It demanded a reliable, respectful hierarchy of social estates, a societal pyramid to act as basis for the operations of the patrician elite". Having shed its feudal identity and prerogatives and closely allied itself with an urban middle class, that patrician elite "constituted the actual personnel and machinery of the English state". The result was that "one part of civil society wholly dominated 'the state"'. According to Nairn, the price paid for that continued patrician hegemony has been an incomplete "modernisation" hostile to "the aggressive development of industrialism or the general conversion of society to the latter's values and interests". British and social history is replete with constitutional paradox "The pioneer modern liberal-constitutional state16 16. Nairn, supra. n 10, pp.19-20 never itself became modern Later the idustrialisation which it produced, equally pioneering in impact, never made England into a genuinely industrialised society” The attractions of "groveldom" to the mercantile, financial and professional elites in the colonies providing the staple products feeding the industrial mills and pullulating urban masses of England were never effectively dispelled either, leaving the Dominions illprepared to resist even the, once despised, hegemonic embrace of American "open-door imperialism" once the economic and military sinev/s of the British Empire had atrophied beyond hope of recovery. It has often been said that no escape from relative industrial and political "backwardness" is possible, in either Britain or the self-governing Dominions, "because no second revolution of the state has taken place". This is particularly evident in Britain itself where "the old patrician structure of England's political system, incapable of such radical action, has also resisted every effort at serious reform up to the present day". Elitism remains "the enduring truth" of a state "where oligarchy engendered democracy through an organic social strategy that preserved its own nature )and naturally, deeply marked and infirmed the 'democracy' which emerged)". The forms of Westminster constitutionalism therefore marked the permanent ascendancy of a parliamentary oligarchy which identified itself with the interests of the nation as a whole. "In its peculiar, dignified concept the People are the reliable backbone of the Nation; not the effective s^rce of its authority, not the real makers of the state". That same partician spirit was transported, along with the convicts, to Botany Bay and, with the United Empire Loyalists, to various parts of what is now17 17 Ibid., pp. 21-22, 25, 35, 42-44; The word "groveldom" was coined by the Australian writer Henry Lawson; see Manning Clark, "The People and the Constitution", in Encel, et. at. . supra n.4, p.10; On the dependent mentality of Canada's business elites, see R. T. Naylor, "The Rise and Fall of the Third Commercial Empire of the St Lawrence", in Gary Teeple (ed), Capitalism and the National Question in Canada, Toronto, 1972; see also Martin J. Wiener, English Culture and the Decline of the Industrial Spirit. 1850-1961, Cambridge, 1981. Canada. 1 °° Then or since, conservative lawyers in the (as distinct, perhaps, from practising Dominions politicians) have never had "to pretend that power comes from the people". By virtue of its constitutional status as a self-governing Dominion under the British Crown, the Australian, like the Canadian, polity can lay claim to ^ "historical legitimacy which America does not have". The deeply-rooted historical myth of the ancient constitution enshrined in the common law tradition has proved to be a powerful antidote to the tumults and disorders that monarchist lawyers associate \i?ith abstract American theories of popular sovereignty. According to the political cost accounting peculiar to that transplanted patrician ethos, the institutionalisation of the "colonial cringe" into a permanent legal culture of dependency was a small price to pay for such a peace of mind. Indeed, it hardly counted as a cost at all. In Britain the revolution of the seventeenth century never managed to establish the constitutional foundations of republican freedom. Similarly, in the tradition of Westminster constitutionalism exported to the British Dominions, Liberty survives as it historically got its start, by reason not of broadsweeping, often meaningless declarations, but interstitially, in the cracks and holes of coercive armory of the State, such cracks and holes being discovered by lawyers and declared by an independent judiciary. Liberty is founded on black letter law. The first wave of republican modernisation succeeded only in checking the absolutist pretensions of personal kingship. In formal constitutional terms, however, the Crown remained a metonym for sovereign authority, while, in substance, patrician social status continued as the conventional precondition to the exercise of political power. The constitutional settlement reached in 1683, moreover, depended upon the continued expansion of Britain's overseas empire without which the wellsprings18 19 20 18. For a study of the role played by that patrician ethos in the emergence of the colonial legal profession in New South Wales, seeJ.R. Forbes, The Divided Legal Profession in Australia, Sydney, n.d ; see also Janice Potter, The Liberty we seek: Loyalist Ideology in Colonial New York and Massachusetts, Cambridge, Mass, 1983, and Carl Berger, The Sense of Power: Studies in the Ideas of Canadian Imperialism, 1867-1914- Toronto, 1970; and David Howes, "Property, God and Nature in the Thought of Sir John Beverly Robinson, (1985) 30 McGill Lav/ Journal 365. 19. The Hon. Mr Justice F.C. Hutley, "The Legal Traditions of Australia as Contrasted with Those of the United States" (1981) 55 Australian Lav; Journal 63 at 64. 20. Ibid , p 66. of wealth and0 ^pa tronage nourishing Old Corruption would soon dry up ^ It was onlywith the second wave of modernisation, inaugurated in the anglop’nonic world by the American Revolution, that "private" social status was formally dissociated from the right to wield "public" authority. The struggle for American independence quickly led to the formal constitution of a sphere of public authority ab,o,ve and apart from all governmental In terms of its "modernity" therefore, institutions.^ the new American constitution represented an important advance beyond thetransitional forms of Westminster constitutionalism established in Britain and exported to her overseas colonies. The American revolutionary settlement was flawed by the failure to establish a nevertheless doctrinal practice capable of subordinating the "private" system of need to the constitutional norms of civic freedom and political equality. The republican meaning of American constitutionalism was soon dissipated as it was translated into the language of liberal legalism. Because of its own developmental priority in the task of constituting the governmental forms of public freedom, that American inability to embed a republican schema of civic action in the associational life of civic society has left the "first new nation" plagued by an apparently permanent sense of moral and spiritual declension. The always confused and unstable concept of a republican community of virtuous citizens "gave way to the image of a loose association °f individuals each making his own way in the world".z No wonder then that the American republic has become little more than an ideological residue in the melting pot of political and legal modernity. 2 Even so, those of us who live on the other side of constitutional modernity here in the British Dominions, should remain wary of the tone of ideological disillusionment which now pervades American historical writing on the early republic. From our perspective, the idea of the republic still remains an unfulfilled aspiration and not simply the dim historical memory of past ideological deliriums. It may yet fall to us to launch a third wave of republican modernisation by distributing the sovereign authority, now monopolised by the Crown-in-Parliament, among a multiplicity of corporate bodies politic constituted within the associational life of modern civil society. But before we can realistically hope to hold out any such republican* 22 23 21 see generally, E.P, Thompson, "Eighteenth Century English Society: Class Struggle without Class?" (1973) 3 Social History 133. 22. Gordon S. Wood, The Creation of the American Republic, 1774-17G7. New York, 1972, esp Chapter IX. 23. John G. Cawelti, Apostles of the Self-Made Han. Chicago, 1965, p 43. schema of civic action as a valid political option, we must come to understand the reasons for its historical failure in the United States Until then, it should not be taken for granted that the apparent contemporary irrelevance of American republicanism is somehow due to its distinctively pre-modern and ideological frame of reference. Federalism and Civic Distribution of Authority The decline of republicanism manifested itself, inter alia, in the doctrinal incapacity of American lawyers to institutionalise a federal schema of civic action. The continued allegiance of republican lawyers to the inherited jurisprudential language of absolute sovereignty, merely inverted in favour of the people, has allowed the modern American nation-state to represent itself as a surrogate, agent or trustee for the community it claims to govern. The history of the republic, one and indivisible, demonstrates that the monarchical principle cannot be overturned simply by abolishing the institution of herditary personal kingship. As things turned out, the constitution of the American republic left its citizens with no way to act as republicans in everyday life. The republican constitution was limited in its application to the internal political order of a nation-state fashioned in accordance with the absolutist and unitary logic of sovereignty. Under conditions of political and economic modernity, the civic values of public freedom and political equality could achieve only limited constitutional recognition so long as the representatives of the nation were invested with an effective monopoly over the exercise of formal public or governmental authority while civil society was brought under the sway of a vast interlocking corporate apparatus of private governance. A modernised republican jurisprudence would necessarily turn, therefore, upon a strategy of institutional reform which aims to achieve a civic distribution of authority within the associational life of modern civil society. Any such strategy msut depend upon the critical and hermeneutic possibility of articulating a doctrine of civic freedom and political equality capable, at once, of diluting the sovereign athority of the modern nation-state and of challenging the allegedly private apparatus of corporate governance That possibility might be realised in the British Dominions ^hrough principle. 2 the doctrinal medium of the federal The idea of the republic must remain irrelevant to the constitutional reformation of the British Dominions so long as it refers exclusively to a change in the form of the state marked by the notional elevation of the people-at-large into the sovereign space once occupied by the Crown. The modern republic requires a constitutional jurisprudence grounded in a civic alteration to the monarchical logic of sovereignty. In the British Dominions, the only real hope for such a process of constitutional renewal seems to be in the hermeneutic linkages which might be established between the classical republican ideal of a mixed and balanced constitution and the modern concept of federalism which already accounts for the bulk of Australian and Canadian constitutional jurisprudence. Both ideas offer a direct challenge to the unitary and absolutist logic of sovereignty. Until now the federal principle has been invoked only in support of competing claims to jurisdictional competence made on behalf of the Crown in right of the Dominions or the respectively. Enmeshed within the Provinces jurisprudential language of sovereignty, the federal principle has to do with the right of governments to a recognised and exclusive zone of jurisdictional competence. It has nothing to do with the right of citizens to participate in the exercise of public authority. But once other historical abd hermeneutic links become established between the federal principle and the republican schema of civic action implicit in the classical ideal of mixed and balanced government, federalism might become the jurisprudential basis for a civic distribution of authority among the multiple affiliations of modern social and political life. In the eyes of the critical legal studies movement however, a federal or civic distribution of authority would represent little more than a doctrinal device intended to freeze a merely contingent and artifactual set of crystallised power relations. Legal "modernity institutes an organized unity of thought, action, institutions, etc." which Unger has identified with the antinomic structure of liberal legal consciousness. The monolithic and undifferentiated hegemony of liberal24 24. On the relationship between a post-Marxian critical theory and a political strategy of institutional reform, see Jean Cohen, Class and Civil Society; The Limits of Marxian Critical Theory, Oxford, 1983; recent events have already given the idea of federalism a salience on the Canadian Left which it lacks elsewhere, see, for example, George Woodcock, Confederation Betrayed: The case Against Trudeau’s Canada. Vancouver, 1981, and Philip Resnick, Federalism and Socialism: A Reconsideration", (1935) 4 Praxis International. No. 4 (January) 400-419. legalism is granted the capacity to colonise "and incorporate all heterogeneous, pre-modern elements into itself". Neither the federal principle nor the idea of the republic retains any meaning apart from that stamped upon it within the antinomic univeerse of liberal thought. No atrategy of institutional reform could ever hope to exhaust all the possible and desirable forms of human association consistent with the values of civic freedom and political equality. The antinomic structure of modern legal consciousness can only be overcome holistically; it cannot become the object of an immanent critique grounded in an as yet unrealised republican idea of reason encapsulated in the civic meaning of federalism. The holistic transcendence of liberal legalism is said to depend upon the "structure - denying structures" of a post-modernist consciousness hostile to any stable practice of authority - civic or otherwise The antinomies of liberal legalism can only be overcome through the passionate embrace of the institutional inherent in the assertedly infinite indeterminacy plasticity of the human personality. Having accepted the holistic account of legal modernity purveyed by the American critical legal studies movement, even some Canadian legal scholars have become oblivious to all those aspects of the constitutional traditions of British Dominions which cannot be traced to the hegemonic structure of liberal legal consciousness. Patric Monahan, in particular, has recently concluded that the constitutional meaning of the federal principle cannot beunderstood apart from the role that it has played within the doctrinal antinomies of modern liberal legalism. The jurisprudential significance of the federal idea has been exhausted by its evident incoherence within the constitutional law of British Dominions. This conclusion rests upon the observation that current doctrinal practice oscillates helplessly between centripetal and centrifugal visions of Canadian and Australian federalism which must, however, remain as unarticulated bachground theories in the resolution of particular federalism disputes. The essentially unitary and indivisible nature of sovereign authority in the modern nation-state makes it both practical and logically impossible to conceive Dominion and Provincial jurisdictions as absolute and mutually exclusive zones of entitlement. For Monahan, it follows that every judicial attempt to divine the precise tilt of the "federal balance" in particular cases must "collapse inevitably into ad hoc contingent arguments about community welfare". Since both provincial and federal governments can plausibly assert the right to intervene into practically every area of social life so as to advance the general welfare, the constitutional adjudicator must, openly or otherwie, have recourse to considerations of25 25. Joel Whitebook, (1985) 63 p.158. "The Politics of Redemption", Telos public policy in striking a balance between federal and provincial claims. It is at that point that the competing background theories of Canadian federalism begin to exert their covert influences. The resolution of federalism disputes has become indistinguishable from the ordinary struggles over the terms of our collective existence. It follows "that, within the sphere of Canadian federalism, it is impossible to draw any meaningful distinction between doctrinal and political discourse. The choices confronting the constitutional adjudicator are ultimately indistinguihable from those of the political actor". The text of the Dominion Constitution offers no escape from the need to make political choices. A catagorical approach to the constitutional text might assert that the Dominion power over "trade and commerce" represented a kind of "watertight compartment" altogether distinct from Provincial jurisdiction over "property and civil rights". But in a particular case involving, say, the regulation of insurance contracts, the categorical approach could be maintained only by insisting that the insurance business26 26. Patrick J. Monahan, "At Doctrine's Twilight: The Structure of Canadian Federalism", (1984) 34 University of Toronto Lav; Journal 47, at 83-90, Monahan simply takes it for granted that the forms of public authority must be shaped by the unitary and indivisible logic of sovereignty. In federalism disputes, however, that logic leads to a "perfect impasse" between "the category of state sovereignty" and the "opposed category of national sovereignty". The only escape from that impasse requires a shift towards a doctrinal practice which locates the effective political legitimacy of governmental authority in the developmental logic of collective welfare. But to focus on the collective welfare functions of the state as a source of political legitimacy is to deny that federalism disputes involve juridically cognisable matters of constitutional form. The resolution of those disputes must, of necessity, take place on the substantive plane of actual political life. American scholars mesmerised by the monarchical image of the people-at-large have reached similar conclusions. Frank Michelman, an occasional ally of the CLS "counter-hegemonic enclave" at Harvard Law School, for instance, states that "if vox populi [or, Monahan might add, the Crown] is the only judicially cognizable source of a social-welfare function, there can be no cognizable answer to the question of which strain is to prevail when the people speak, simultaneously but discordantly, through their state governments and through Congress". See Frank Michelman, "States' Rights and States' Roles: Permutations of 'Sovereignty' in N a tio n a 1 League of Cities v. Usery" (1977) 86 Yale Law Journal 1165, at 1194-1195. "was either ’trade and commerce' o_r 'property and civil rights' It could not be both" In fact, of course, the regulation of insurance contracts impinges upon both "trade and commerce" and "property and civil rights". In practice, therefore, the courts have attempted to identify those "aspects" of insurance business which fall under the respective jurisdictions of Dominion and Provincial governments, an approach which "necessitates a pragmatic balancing" of competing federal and provincial interests in the regulation of the insurance industry Recourse must then be had to one or other "pan-Canadian" or "provincialist" background theory of Canadian federalism to justify the essentially political value choice implicit in the resolution of particular disputes. For Monahan, federalism must be conceived either in terms of its genetic origins as a textually prescribed form of government, in which case constitutional doctrine is reduced to antinomic incoherence (either "trade and commerce" o_r "property and civil rights"), or as a set of telic ideological preferences for one or other of the competing centripetal and centrifugal versions of the Canadian nation-state, in which case federalism reveals its institutional indeterminacy. In either case federalism disputes relate only to the rights of constituent units of the federation. Altogether absent from this anaysis is any sense in which the federal principle stands for a schema of civic action which could erode the formally absolute sovereignty of the modern nation-state or effect a novel civic distribution of authority within the "private" structures of corporate governance. Despite his call for the "revision and correction" of our political and legal life, Monahan simply takes for granted the monarchical form of the Dominion constitutions. So long as the unitary and indivisible logic of sovereignty embodied in the image of the imperial Crown-in-Parlianent remains the point of departure for doctrinal practice, the constitutional meaning of Canadian federalism must be developed through some substantive process of political conflict, negotiations and compromise. Invoking the CLS ideal of collective empowerment, Maonahan argues that an unelected judiciary has no useful role to play in that process of conflict and decision. By clothing federalism disputes "in legal garb", judges merely supress "awareness of the provisional nature of the choices that are actually made".^ The developing structure of Canadian federalism, accordingly, should be determined, not by legal judgments resting upon some purportedly fixed normative limit to the powers of the constituent units of* 28 27. Monahan, supra n.26, pp.48, 57-61; the phrase "watertight compartments" was minted by Lord Atkin in Attorney-General for Canada v. Attorney-General for Ontario (Labour Conventions Case) [1937] AC 326 (PC). 28 Monahan, supra n.26, pp 51,92. the federation but rather by a frankly political process which settles their actual jurisdictional competence. All the while, the unspoken assumption that the substantive political life of the nation will be conducted under the formal constutional aegis of the Crown remains intact. Nonsynchronous Contradictions and the Regeneration of the Republican Tradition On Monahan's view, constitutional forms which fail to mirror the substantive realities of modern Canadian political life are rendered somehow illusory, a mask donned by the powerful to conceal the fact of their domination. The contradiction between monarchical forms and federal substance is merely another instance of the endless oscillation betwen principle and counterprinciple characteristic of legal modernity. The doctrinal incoherence and institutional indeterminacy of the federal principle are, therefore, "directly referable to the structure of liberal democratic thought". J Within the framework of this argument, the possibility that the federal idea might possess some formal constitutional significance outside the paramenters of liberal legalism cannot even be raised. Any attempt to discover the "natural legal language" of Canadian federalism is doomed to failure. Federalism is merely jg^e of the conventional realities of Canadian politics. The hope that the federal principle might crystallise into a fundamental law of political, association standing in opposition to the unitary and indivisible logic of sovereignty through a stable civic distribution of authority flies directly in the face of the CLS ideal of politics as a process of collective empowerment aimed at the making and the29 30 29. Ibid. , p.83. 30. Monahan never explores the possibilities that the federal principle might crystallise into a fundamental law of political association enforceable in the courts. It is the monarchical form of the Dominion constitutions which now precludes juridical recognition of the federal principle as a legally binding constitutional norm. Because the foreground of doctrinal practice now is occupied exclusively by the sovereign image of the Imperial Crown-in-Parlianent, the federal idea must, of necessity, be relegated to the shadows. In the language of Westminster constitutionalism, that background sons, where competing pan-Canadian and provincialist visions of Canadian federalism vie for dominance, is the realm of constitutional convention. However binding as a matter of political practice, conventions cannot be enforced in courts. Apart from whatever recognition it mioht claim by reference to some imperative constitutional text emanating from the Imperial Crown-in-Parliament, the federal principle remains a natter of convention. See Reference Re Amendment of the Constitution of Canada (1982) 125 DLR 3d 1 at 79-107. unmaking of society. Any stable practice of authority, guaranteed by law, would, sooner or later, freeze a merely contingent and provisional political arrangement into an entrenched power order of illegitimate hierarchies and fixed social roles. Monahan contends that there "are no institutional properties that necessarily or inevitably flow from the federal principle". His argument, however, provides no warrant for the sweeping and unqualified terms in which that conclusion is phrased. At most, Monahan has shown us that, so long as it remains ensnared in the liberal legalist language of sovereignty, the federal idea must be relegated to the informal arena marked out by the operating, as distinct from the formal, constitution What Monahan needs to demonstrate is that the federal principle, despite having been granted formala constitutional recognition, could never generate a republican mode of civic action within the associational life of modern civil society. To accept that unexamined claim is to cede the realm of formal constitutional discourse to a monarchical principle which embodies the hierocratic essence of rule from above. The monarchical logic of sovereignty which is said to be definitive of the distinction between public and private realms, remains as an apparently inescapable feature of modern legal consciousness. At the same time, the Crown locates its genesis in an archaic myth of the common law. The fact is that the constitutional discourse of the British Dominions contains both positive and negative features which have never been wholly absorbed within the assertedly holistic political and intellectual structures of legal modernity. Those residual elements stand in a nonsynchronous relation to the modern nation-state. For just that reason, they may provide the necessary doctrinal foothold for an immanent critique of the monarchical paradigm. Our problem is one of getting from here to there. No strategy of institutional reform is likely to succeed unless it can locate, within the existing mass of doctrinal materials, the sedimented remains of earlier republican schemas of civic action which might still resonate, however faintly, in the present. As Ernst Bloch has reminded us, "not all people exist in the same Now. They do so only externally, by virtue of the fact that they may all be seen today But that does not mean that they are living at the same time with others". Some people "carry earlier things with them" into the experience of political and economic modernity. From a republican perspective, one of those negative residual elements is the hereditary monarchy constituted within the British Dominions. The monarchy is no mere archaic remnant devoid of contemporary political significance. Through the nonsynchronous remainder of the 31 Monahan, supra n.26, pp.51,92. Crown, "Times older than the present continue to effect older strata" The "social imaginary" embodied in the hereditary monarchy makes it "easy^to return or dream one's way back to older times". “ Defenders of the monarchy within the British Dominions have been sensitive to that nonsynchronous dimension of its being. For them, the image of authority incarnated in the image of the monarch "makes the difference between a parched and wellwatered life and it denotes the difference between the prosaic and poetic vision". The Queen, it is said, cannot rule in her Dominions "except by her implicit moral link her and us to authority and by royalsymbols which the archetypes of a hundred generations. By contrast an elected president can rule only by fact of his own qualities and the fickle adulation of the electorate. Constitutional Monarchy may outlast even fools and rascals by sheer antiquity, experience and savoir-faire. It is capable of evolutionary adjustment. A republic is too often hobbled by some superstitiously adored mode of constitution which reprasents the petrified dreams of a single generation ...". Many of the older strata (e.g. native-born Canadians and Australians of British stock, particularly Anglican communicants, British migrants, the military past and present, judges and lawyers, a good many farmers, and so on) within the British Dominions embody, within themselves, the recognition that the past lives on in the present. The "linear progress-conscious" minds of those attracted to the critical legal studies movement, by contrast, "are wont to consider relevant only that kind of historical consciousness that helps us build an allegedly new world". Modernist lawyers are unalterably convinced that the social revolution of the present "cannot draw its poetry from the past, but only from the future". Like a great many progressivists before them, CLS adherents seem "interested in developing a solely for the instrumental historical consciousness purpose of arming themselves for evolutionary or revolutionary change". But that instrumental approach to the past is unable to grasp the monarchy as anything more than another ideological residue which, once detached from the historical mystifications surrounding it, can be safely deconstructed into its harmlessly synchronic and merely formal elements. But if the sovereign will 32. hallmark of the modern nation-state is a vested in the community-at-large, the* 33 34 Ernest Bloch, "Nonsynchronism and the Obligation to its Dialectics", New German Critique 11 (Spring 1977), p 22. 33 Ronald Conway, "The Problem of Leadership in Australia ... Measures or Men", in Geoffrey Dutton (ed ), Republican Australia?. Melbourne, 1977, p.87. 34 Christian Lenhardt, "Anamnestic Solidarity: The Proletariat and its Manes". (1975) 25 Telos. pp 141, 147 The reference to the poetry of the future originated with Marx constitutional order of the British Dominions must stand outside the practical holism implicit in the CLS version of legal modernisation Sovereignty within the British Dominions has its formal genesis, not just in the substantive power of the nation, but also in the will of the Imperial Crown-in-Parliamen t whose authority is steeped in the archaic myth of the common law. That formally transcendent image of authority remains relatively independent in the Now in which most of us live, governed by a system of needs immanent within the present life of the nation. The defenders of the monarchy, therefore, claim that it can accomodate "leadership styles... bound up with the principle of honouring something at a higher level than our own contemporary ambitions". A narrative account of the genesis of formal constitutional authority in either Canada or Australia does not fit neatly into the developmental logic of the modern nation-state. Authority in the British Dominions "is based on powers which have been legitimate for mearly a thousand years, and therefore it is not necessary... to appeal to God or the people or to any other source. The law is there and has always been there, and its origins are based in the powers of^^he British Parliament, going back to ancient times". The monarchy remains a heterogeneous element which continues to resist the homogenisation of political power which took place in the newly-independent United States as the traditional concept of representation associated with the classical ideal of a mixed and balanced constitution finally collapsed. Under the new American dispensation, all governmental officials - presidents, legislators, and judges - were considered to be equally representatives of the people. The classical emphasis on the heterogeneous and diverse capacities of the One, the Few and the Many disappeared to be replaced by a functional division and synchronous balance response to periodic expressions of the popular will. The nonsynchronous contradiction between the hereditary monarchy in the British Dominions and the developmental logic of the modern nation-state could still become the negative pole in opposition to which the positive elements of a residual republican tradition could them^lves "occupy and rebaptise the living Yesterday". The republican memory of modes of civic action which once challenged the hierocratic principle of rule from above could still breathe new life into the federal principle. If that possibility is to be realised, "it becomes imperative", as Christian Lenhardt argued several years ago, "to reflect upon the power of remembrance, which is the power of the historical being* 36 37 35. Conway, supra n.33, p 87; Hutley, supra n 19, p 64. 36 See generally, Wood, supra n.22. 37 Bloch, supra n.32, p 27. called man Perhaps the task of the historian is not to provide us with ammunition and lessons to learn but simply - or rather not so simply - to lend an ear to the plaintive voices" of our defeated republican ancestors, "thus creating a basis for anamnestic solidarity with them" so that t|gy> too, may continue, through us, to live in the Now. ° Faced with the heterogeneous ordering and unifying image of the classical One as the sole embodiment of legitimate authority, her subjects in the British Dominions might yet be moved to reconstitute the civic role of the Many in the multiple affiliations of a modern system of needs currently managed, ostensibly for our benefit, by the now largely faceless Few. A legal hermeneutics capable of recovering the classical image of the mixed and balanced government persisting through time could help us to carry those earlier things into the here and now Without those organised remembrances we must be swept along by the technicist dream of a fully synchronous state of abundance, pow'er and prosperity in which citizens share in the collective power to make and unmake society but not in the motives which guide their action A stable practice of authority, be it monarchical or republican, pushed those of us living in the Now from behind, as it were, augmenting our power of action by providing us with reasons for,,0both acting and obeying those who exercise its mandate. ' For Monahan, however, Yesterday is dead meat. The past cannot , or cannot be allowed to, define the ends of collective life in the Now. It has become axiomatic, in modernist circles, that the formal genetic legitimacy of either monarchical authority or a federal principle rooted in the binding power of mutual promise and covenant has been overridden by the telec logic of development which dominates the substantive political life of the modern corporate welfare state. In Monahan's view, there is no conceivable principle of authority that could provide us with binding reasons for acting or, indeed, for obeying. All forms of institutional life are, inescapably, contingent and conditional. The plasticity of institutional life makes it impossible, according to Monahan, to regard any "particular institutional configuration as the natural or inescapable expression for the underlying diversity in Canadian society." For Monahan, the function of the federal society is to give institutional expression to the sociological diversity of Canadian life. Politics has to do with the making and* 39 38. Lenhardt, supra n.34, p.141. 39 Cf R. Jeffrey Lustig, Corporate Liberalism: The Origins of Modern American Political Theory, 1390­ 1920, (Berkeley,1982), pp.227-245. Lustig's work should be required reading in every course on American legal realism. Unfortunately, so far as I can tell, it appears to have been all but ignored by CLS scholars who trace their intellectual ancestry to that realist tradition unmaking of society and federal institutions must judged according to how a^quately they reflect underlying social diversity". "be the Monahan asserts that to conceive federalism as a generative principle of authority would be to "misconceive the proper end of political activity" Political life need not rest upon a principle of authority at all. We do not, indeed, cannot, inhabit a normative universe or nomos in which the ends of authority are linked, through the medium of a narrative discourse, to its origins. Political life, he claims, is "a journey without a destination...The journey is the destination". Lacking any shared narrative in which the meaning of their own lives and life stories might be located, the citizens of Monahan's federal polity could achieve political visibility only if "institutional arrangements...adequate expression to the cleavages in the polity". Federalism, in Monahan's hands, becomes simply a means of encapsulating the heterogeneity of modern civil society within the representative mechanisms of the modern nation-state and, indeed, of collapsing the very distinction between state and society. To conceive federalism, in this way, as an expression of sociological diversity, is to dissolve both private and public realms into the holistic modernist ideal of a fully socialised mankind. But, contrary to Monahan, it is not the role of the political realm to give institutional expression to regional, ethnic, cultural and functional diversity. The ancient civic ideal of politics rests upon the juridical recognition of a common world shared among all members of the body politic who, nevertheless, retain their private identities and interests. According to Arendt, "the political world arises directly out of acting together, 'the sharing of word and deeds'" and could not survive but for the stabilising protection of,„the wall erected around it by the authority of the law. The role of the public realm is to create an authoritative representation of unity out of the heterogeneous fabric of private interests by recognising that equality as well as40 41 42 40. Monahan, supra n.26, pp.96-99; On the distinction between a genetic legitimacy focused on the origins of political authority in social contract, conquest, divine right or ancient custom, and the telic power oriented towards the collective welfare functions of the state, see Leonard Krieger, An Essay on the Theory of Enlightened Despotism, Chicago, 1975; see also Dick Howard's useful review of Krieger's work in (1977) 33 Telos 219-229. 41. Monahan, supra n.26, pp.97-98; cf. Robert Cover, "Nomos and Narrative", (1983) 97 Harvard Law Review 4 at 4-10. 42. Hannah Arendt, The Human Condition, Chicago, 1958, p 198 " diversity is an essential condition of human plurality Far from creating unity out of diversity, Monahan's "federal society" would solve the political problem posed by civil discordance and social heterogeneity by endowing every significant pocket of religious, cultural, ethnic, or regional diversity with just that degree of self­ governance necessary to maintain its functional integrity and cultural identity within horizontal and vertical mosaics generated by the developing systems of needs. The federal principle, in Monahan's interpretation, becomes synonomous with the informal representative constitution of the modern nation-state. The most obvious consequence of this strategy is to erode the commonality of the public world. No longer would the diverse elements of a heterogeneous civil society confront each other as equals within each of the constituent units of the federal society. Politics would be displaced from the internal constitution of the federal units by the developmental logic of socialisation. The result would be a kind of multicultural tribalism in which social or cultural groups such as the Dene, Inuit, Quebecois and even the Gay Nation would emerge as constituent units of the Canadian federation enjoying a standing equal to that of the provinces insofar as they come to represent; sociologically distinct communities of interest.4j Precisely because no doctrinal form could ever hope to exhaust the ceaseless dynamic flux and unpredictable which endlessly reshapes the informal heterogeneity constitution of modern social life, the federal principle would amount to little more than a set of relay mechanisms through which the shifting currents of social power flow into the political reservoir of the sovereign will. . • Monahan's image of the federal society is focused exclusively on the circuitry of social power, not on the genesis of political authority. The aim is not to distribute authority among a stable network of civil bodies politic endowed ^th the attributes of legality, plurality and publicity. ' Nor would the authority of the federated units arise out of the experience of mutual covenants and promises among a diversity of competing interests. The CLS ideal of collective empowerment, to which Monahan subscribes, rejects the authority of covenant insofar as it appeals "to ostensibly pre­ existing subjective interests as governing norms". The governing norms of the federal society would flow* 44 43 The cultural nationalist premises implicit in Monahan's prescriptive account of a Canadian "federal society" occupy centre stage in Susan Crean and Marcel Rioux, Two Nations: An essay on the culture and politics of Canada and Quebec in a world of American pre-eminence, Toronto, 1983 44. Cf. Cohen, supra n 24, p 225 directly from a vision of legal practice which appeals instead to the "ideal of nonhierarchical community" pulling us into in the future. The creation of such "nonhierachical communities of interest" need not, therefore, entail the constitution of a stable public sphere of speech and action, possessed of an intrinsic value of its own b^y. virtue of its genesis in the binding power of covenant. Monahan explicitly rejects the suggestion that the of a federal polity should be constituent elements conceived as "partially self-contained entities, valued for their own sake and possessed of their own life and interests". Lawyers in Monahan's federal society would be loath to recognise the boundaries, purposes or internal constitutions of the civil body politic whenever they might be said to conflict with the holistic ideal of nonhierarchical community. Their novel and "politicised" vision of legal practice would not be "designed to serve their clients' pre-existing interests, but to reconstitute them as a community defined by common interests". The critical lawyer would act as "counsel to the situation" by fusing the private and "subjective" interests of individual clients together with the "objective" norms of the public world into a socialised and nonhierarchical "community of interests" which "is something to ^be created in the course of But where no such substantive representation". "community of interests" seems possible, formal authority must inevitably reassert itself as the transcendent image of sovereignty monopolising the coercive apparatus of public force. Even in Monahan's federal society, it seems, the formal capacity to serve as an autonomous locus of public authority must remain vested exclusively in the Crown. The point of Monahan's "federalism", after all, is not to newly authoritative hierarchies in the constitute associational life of modern civil society, thereby diluting the sovereignty of the Crown, but rather, to provide an adaptive or feedback mechanism whereby constitutional norms can be readily adjusted to the developmental imperatives of the system of needs animating the life of the coramunity-at-large. Only in that way could the monarchical forms of the Canadian be accomodated to Monahan's telic constitution preoccupation with the collective welfare as realised through the progression towards those higher forms of social life which will dissolve the antinomic opposition between self and other into the ideal of nonhierarchical community.46 45. William H. Simon, "Visions of Practice in Legal Thought", (1984) 36 Stanford Law Review 469, at 485 46 Monahan, supra n.24, p 225. The hierocratic principle embodied in the person of the monarch thus stands revealed to critical legal thought as just another "artificial” legal device reflecting the "holistic unity of opposites" rooted in the structure of modern legal consciousness. The false consciousness of an objective, public unity confronts the equally false consciousness of subjective, private interests. Both mask the reality of domination inherent in the experience of hierarchy. For CLS scholars, hierarchy itself, in all its forms, has become the enemy of human freedom; not just as it is reflected in the monarchical image of the state, but in every facet of modern social existence. For them the choice we face is not between monarchical and republican forms of civil and political authority. Rather, they conceive their task as building "structures that will facilitate good and prevent bad fusion". Because, "the theory goes", we are "constantly torn between our need for others and our fear of them,...law is one of the cultural devices we invent in order to establish terms upon which we can fuse with others withipgt crushing our identities, on freedom, even our lives". ° Hierarchy, the domination of self by others superior in rank, power or status, is, by definition, "bad fusion". Conversely, a nonhierarchical community of interest is an obvious mainfestation of "good fusion". Insofar as the existence of political authority implies an assertedly natural hierarchy of ranks and values, it stands opposed to the CLS ideal of collective expowerment. But, as Martin Jay remarks, while de-naturalising consciousness of the subjective origins of the social world may be a necessary moment in the struggle to change society, it is not a sufficient one. Indeed, paradoxically, by assuming that public institutions are merely "cultural conventions" that can be changed by exposing their artificiality, we may blind ourselves to the deeper more varied sources that generated them and the still potent functions that they now serve. Not all hierarchies, in other words, can ’pg conflated "into variations on the theme of domination".* 49 48 In a political world apparently incapable of defining any authoritative set of common purposes grounded in a coherent doctrine of the good and just life, the central problem of modernity is to create an institutional medium wherein novel forms of civic authority might be constituted. By institutionalising a stable practice of civic authority, we might open the way to new forms of doctrinal practice capable of mediating between the heirocratic essence of rule from above, as manifested in 47 Martin Jay, "Hierarchy and the Humanities: The Radical Implications of a Conservative Idea", (1985) 62 Telos. p.141. 48. Gordon, "Critical Legal Histories", supra n.5, p.114. 49. Jay, supra n.47, pp 140-142. * the otherwise monarchical logic of sovereignty, and the essence of the rule from below, as democratic encapsulated in the no less monarchical image of the disembodied people-at-large standing outside the formal institutions of government. Endowed with a full measure of that civic authority, the civil bodies politic of a federal polity could work to bring the diversity of persons gathered together in the plurality of civil institutions into direct contact with the common goods institutionalised within a community of political equals enjoying the mutual respect that flov/s from the experience of dialogue among competing interests. To constitute public spaces of appearance within the corporate structures of modern give a new practical meaning to the social life could experience of republican citizenship. Given a multiplicity of corporate institutions, juridically recognised as civil bodies politic, an essentially public conception of corporate purposes might then begin to emerge alongside the assembly of private interests which gave birth to the association. The republican idea of the corporation as a civil body politic could be held up as a model towards which concrete institutional reform could aspire in the here and now. The object of republican jurisprudence would be to constitute corporate public spheres wherein members of bodies corporate could confront each other, not merely as personifications of their respective capital investments, but as natural persons entitled, prima facie, to an-, equality of political rights within the corporation. Within those "little republics", a plurality of views could claim a voice in defining and maintaining the political identity of the corporate association. Within the political realm constituted by the free interaction among a plurality of equals, a measure of agreement would have to be reached on what to do, even if no consensus were possible as to why it should be done The articulation of corporate purposes would necessarily involve a process of establishing new hierarchical The pursuit of those purposes, as well as evaluations. their definition, would call upon a diverse range of talents, capacities and interests. Sooner or later, the practice of corporate authority would require normative distinctions of rank and quality within the associated membership of the civil body politic. Having determined what is to be done, some agreement must be reached as to who should do it. Any such judgment necessarily constitutes a hierarchy defined in terms of its fidelity to institutional goals. The resultant civic distribution of authority within the civil body politic should enhance the capacity of members to act in common. Once the body 50. Cf Taylor v Griswold (1834) 2 Green Rep (NJ) 223 at pp 229,237; discussed in Andrew Fraser, "The Corporation as a Body Politic", (1983) 57, Telos corporate acquires the common power of action housed within a stable, wordly structure endowed with the attributes of legality, plurality and publicity, the idea of the public interest might become something more than an ideological abstraction routinely or cynically invoked to justify yet another despotic extension of state or corporate power. The public interest, or res publica, could then come to reside in a cumulatively binding sense of ; purpose lodged in the federally articulated relationship which links the particular institutional telos of a given civil body politic to the goals and normative requirements of the state and the community at large The sovereign capacity to institutionalise a binding and authoritative definition of the public interest or the collective welfare would no longer be vested exclusively in the Crown-in-Parliament. Monahan, of course, would be the last person to deny that the rise of the modern corporate welfare state makes nonsense of the claim that effective public power resides exclusively in the formal constitutional structure of the sovereign nation-state. But the historical shift towards political steering mechanisms that erode the practical significance of the distinction between state and civil society has not altogether destroyed the jurisprudential need to grasp the genesis of the distinction between private and public realms. In the republican civil body politic, the distinction is central to the very definition of the corporate entity as an association uniting di.verse individuals as political equals in a common enterprise distinguishable, in principle, from the private stake retained by each member. The public interests of the membership, and the private interests of each shareholder, could both be guaranteed, in part, by a revitalised doctrine of ultra vires which recognises the political character of the modern corporation. The aim of the federal polity, therefore, is not to represent sociological diversity but to transcend it through the political act of constituting common worlds within the multiplicity of public spaces of appearance open to a republican citizenry. The res publica coudl thereby incorporate within itself a stable and normatively binding balance of diverse and sometimes antagonistic interests which lie "between people and therefore can relate and bind them together".J The fact of societal diversity represents the starting point, not the goal, of a political life grounded in the binding power of mutual promises and covenants. That power, if given the force of law, could implant a generative principle of authority \^ithin the institutional life of civil society. Each civil body politic would be free to develop hierarchies of rank and quality to the extent that its own practice of authority remained consistent with the fundamental norms of civic freedom and political 51. Arendt, supra n 42, p.182. equality Within a republican polity, governmental authority would become the product, not just the formal precondition, of ordinary civil life. Of Law and the River The contemporary incoherence of Westminster constitutionalism offers little hope that doctrinal practice might come to be informed and guided by a canon of institutional design uniting the constitutional form and political substance of the res publica in modern civil and political life. To raise such hopes, critical constitutional scholarship in the British Dominions must not only expose the doctrinal antinomies of Westminster constitutionalism; it must, more importantly in the long run, also recover the republican language of civic freedom so as to give it a modern jurisprudential expression in the institutional life of civil society To accomplish that task, the theory and practice of constitutional scholarship within the modern law school must be reconceived. No longer can those who study and teach constitutional lav; imagine that their task is akin to training a cub pilot to chart a course along the Mississippi or some other known and navigable legal waterway. To adopt that perspective is to be accused of nihilism whenever we find ourselves teaching cub lawyers that every branch of the doctrinal stream leads everywhere and nowhere at once. The constitutional law of freedom cannot be renewed until those who teach and write about constitutional jurisprudence in the British Dominions themselves come to challenge the representation of the sovereign will as the sole and master architect of political order, whether that claim is asserted in the name of the Crown or of the people-at-large. Only then can we cease to think of the law as a current of power emanating from a single radiant source. Understood instead as an enduring product of human artifice, the law could become a vital element in the institutional design of a federal polity which grounds sovereignty in the associational life of modern civil society. This implies the reversal of the liberal paradigm in which the associational life of civil society is grounded in rights emanating from a sovereign will. In circumstances of deepening social and economic crisis, constitutional scholarship can no longer continue to alternately mask or bewail the incoherence of the liberal jurisprudential paradigm. Constitutional scholars must begin to make certain critical choices and decisions as to the nature and reason for being of traditions of constitutional discourse threatened with total eclipse by the impending confrontation between the opposed mytho/logics of state and antistate. The debate now raging in American law schools between "true professionals" and the "legal nilihists" of the critical legal studies movement simply demonstrates that the monarchical essence of the sovereign Crown-in­ Parliament was sufficiently resilient to undergo a transubstantiation into the spectral presence of the disembodied people-at-large. The constitution of the American Republic did not, as things turned out, represent an altogether revolutionary or unique departure from the hierocratic paradigm of Westminster constitutionalism. Even the vanguard elements of the emergent liberal legalist tradition carried earlier things with them into their own Now. The now obvious contradiction between the forms of republican and federal government and the monarchical substance of the Union, one and indivisible, encapsulates the antinomic confusion into which American constitutional theory and practice have been plunged. American constitutional jurisprudence, no less than that of the British Dominions, must speak in the monarchical language of ius et dominium. The language of civic virtue has long been lost to the foremost practitioners of liberal legalism. The master image of the unitary and indivisible republic has reduced the principles of federalism and citizenship alike to secondary and derivative expressions of a sovereign will. The formal sovereignty of the American people has been permanently delegated to its agents and trustees under the Constitution. The people-at-large reigns but does not rule. As in the British Dominions, the American citizen is a member of the body politic only by virtue of the unifying and ordering presence of the sovereign nation-state. Citizenship establishes a legal between that state and the individual relationship members of civil society; it does not entail a special mode of civil interaction among citizens themselves. Constitutional discourse remians firmly focused on the competing modalities of state activity thrown up by the perpetual oscillation between genetic legitimacy and telic power. So long as Anglo-American constitutional scholarship remains ensnared within the doctrinal antinomies of Westminster constitutionalism and its ostensibly republican offspring, there is little hope that we might develop principles of institutional design open to the forms and substance of public freedom. In both America and the British Dominions, the exclusive focus of constitutional doctrine on the internal poltical order of the state relegates the institutional order of civil society to the increasingly fictive realm of private law. Isolated from institutional practices incorporated into the everyday life of a republican citizenry, constitutional theory inevitably lapses into incoherence. The endless vacillation between genetic and telic modes of legitimating state acitivity means that neither the internal political order of the state nor the associational life of civil society can crystallise into a stable constitutional form whose substantive normative 52 Cf Krieger, supra n 40 requirements can be given a binding and coherent doctrinal expression The recurrent choices between parliamentary, polyarchal, corporatist or despotic steering mechanisms reflect an essential indeterminacy in the existing constitutional order. Under these circumstances, the search for principles of political architecture which might be employed in the construction of stable worldly structures housing a free citizenry has come to seem altogether misguided and quixotic. Orthodox legal scholarship and its contemporary antagonists in the critical legal studies movement now find common ground in the shared assumption that the task of the law teacher can best be understood by drawing an analogy, not to the work of the political architect whose task it is to fabricate worldly institutions enduring through time, but rather to the role played by the master pilot in Mark Twain's Life on the Mississippi. CLS lawyers are interested in the stable worldly structures of the body politic only insofar as they can be deconstructed so as to liberate the transformative flow of social energy generated by "good fusion". The riverine metaphor, suggested by Paul Carrington, a liberal critic of CLS, rests upon the image of the lax; as a complex, twisted and shifting network of waterways which creates the need for pilots competent to guide the trade, commerce and intercourse of the nation past its sometimes hidden snags and sudden dangers. The pilot knows nothing and cares less about other rivers or even his own as it was in its geological Yesterday; his concern is with the channels the Mississippi has carved out in the here and now and those which might be opened up in the future. Without that focus on synchronic contingencies, the pilot's judgment could be fatally impaired. "Lawyers", accordi-ng to Carrington, "need judgment as much as pilots. Somewhat different judgment to be sure: our medium is words, not water, and the forces that influence the meaning of language are social and political, not natural. But our work, like that of pilots, requires effective use of intuition going beyond technical knowledge; those who use intuition need to know its limits. Thus lawyers, like pilots, must always be distrustful of themselves, on guard against the risk of mistaking their own political or social preferences for those of the law". Those who teach cub lawyers, like those who train cub pilots, must strive to inculcate in their pupils an intuitive love and respect for the river, its power and its majesty. The reality of the law, however, cannot be grasped "like the 'tangible, ... wet experience' refreshing the pilot's conviction that his knowledge pertains to reality in nature. The law, in contrast, is a mere hope that people who apply the lash of power will seek to obey the law's command". For Carrington, it follows that those who train young lawyers are under a clear professional obligation not to undermine their belief in the idea of law Without that belief cub lawyers will be stripped of both courage and competence. It is the cub pilot's acquired love of the river that provides the courage necessary to trust our own intuitive grasp of the way forward through the dangers and swirling currents which resist our every effort. Similarly, lawyers "lacking confidence that legal principles actually influence the exercise of power have no professional tools with which to do their work. In due course, they must abandon whatever professionalism they have, to choose between simple neglect of their work or the application of common cunning, such techniques as bribery and intimidation in all their many forms". As we have seen, however, it is no easy matter to engender belief in the doctrinal and practical coherence of Westminster constitutionalism. We can, of course, like Carrington's master pilot simply take the source of either the river, or of legal authority itself, altogether for granted, concentrating on the immediate task of moving passengers and goods along the known and navigable portions of the legal channels open to us. But what happens when even the master pilots begin to lose confidence in their ability to find a path of coherence through the doctrinal maze of the law? Those who wish to persevere in the established routines of pilot education when almost everyone appears to be lost - even those who claim to be able to find their way - are bound to provoke ridicule, resentment and resistance. Throughout the common law world bitter conflict and mutual incomprehension have soured relationships between those "true professionals", who desperately need to deny the fact of doctrinal incoherence or institutional indeterminacy, and the so-called "legal nihilists", who loudly proclaim "the twilight of doctrine" and its imminent descent into darkness and utter confusion. By posing the issue as a contest between "true professionals" and "legal nihilists", Carrington fundamentally misreads the contemporary crisis of legal and, in particular, constitutional scholarship which has been revealed in the emergence of the critical legal studies movement. In their attitude towards the practice of law, those associated with the critical legal studies movement seem anything but nihilistic. Many, in fact, appear moved by an obvious faith in the redemptive potential inherent in a radical legal practice. As Robert Gordon observes, one could hardly imagine "a more strikingly implausible proposition" than Carrington's claim that "left—wing lax; teaching (assuming for the moment that that is x;hat 'nihilism' means) leads to corrupt practice". The real problem with both the orthodox and the critical positions is that neither calls into question a shared bedrock assumption that the function of the lax; school is to train cub lawyers in the practical skills of navigating the known and existing 53 Paul D Carrington, "Of Law and the River", Journal of Legal Education 222 at pp.226-27. (1984) 34 waterways whose source can be taken as an ideological given. The only real point of contention between the two camps appears to involve the eagerness and impatience with which the critical legal scholars have abandoned the known routes and techniques of doctrinal navigation to open up hitherto unexplored branches and tributaries of a reified legal praxis to new kinds of legal traffic. In the wake of that expanded traffic, the critical legal scholars hope to find a substantial erosion of the boundaries^between law and the surrounding political landscape. For Gordon, the fact that the boundaries between law and politics have begun to dissolve hardly diminishes the importance of teaching law students the craft of legal practice. Indeed, if the law can be used openly "to help promote major political change", the practice of law may assume a social creativity that it has hitherto lacked. Lav/ students w ill succumb to a timid careerism and professional apathy, Gordon claims, only if the lav; schools fail to "offer substantive visions of how lawyers can act to make this a better society". The nihilism of the critical legal studies movement extends, not to the practice of law, but towards legal scholarship, considered as an activity worthwhile and important in its own right, whether or not it contributes to "basic political, economic and ethical arguments about what lawyers ^d legal systems can and should be doing" in the present. This all-absorbing preoccupation, shared by Gordon and Carrington with the contemporary professional practice of law pushes into the shadov/s what one might otherwise think to be the obvious and primary concern of the law school: that is, of course, the question of what legal scholars can and should be doing in an era of jurisprudential confusion and intellectual crisis. It is difficult to see how legal scholars can offer their students "substantive visions of how lawyers can act to make this a better society" without themselves being forced to abandon the practice of legal scholarship in favour of professional practice as a barrister, solicitor or judge. The dispute between Carrington and Gordon concerns alternative modes of legal practice, not of legal scholarhsip. Each seeks to arm his own cub pilots with the knowledge and professional skills necessary to serve their respective segments of an increasingly heterogeneous legal labour market. The 54 "Letter from Robert W. Gordon to Paul D. Carrington", (1985) 35 Journal of Legal Education 1 at 3-5; elsewhere Gordon declares that "law schools (like any other professional schools) ought to be ... teaching a theoretically informed, critically reflective set of approaches to professional practice tasks". See, Introduction to Symposium on the Corporate Law Firm", (1985) 37 Stanford Law Review 271 at 272. 55 . Gordon, "Letter", supra n.57, pp.7-9. contest is between those who invoke the established canons of legal professionalism - in particular, the fundamental belief that the text matters - as the touchstone of coherence and intellectual integrity, and those who assert a pluralist vision of legal professionalism which seizes upon the fact of doctrinal indeterminacy as the occasion for "practical suggestions for experimentally realising competing visions of the good". This dispute is not about legal scholarship at all except insofar as it mirrors the helpless oscillation of modern legal thought between the polarities of genetic and telic legitimacy. For Carrington, the legal order is legitimate because of what it is; for Gordon, legitimacy depends upon what it does. While Carrington emphasises the traditional authority of the text whose legitimacy can be taken as given, Gordon insists that the effective and committed lawyer must move beyond the quest for the formal genesis of authority to examine and evaluate the uses to which it has been put. By multiplying the uses of the law for groups previously excluded or under­ represented in the legal process, legal professionals can, in Gordon’s view, help to realise the conditions of the experimental life. While Carrington advises the law schools to limit the range of intellectual choices open to cub law'yers, Gordon urges us to keep our intellectual options open. But the crisis of contemporary legal scholarship cannot be resolved either by limiting the intellectual and corporate freedom of legal scholars, or through the pluralist strategy of defining our freedom of choice "not as the freedom to choose one course of action over another, but as the freedom to choose everything at once" If the deepening incoherence of liberal legalism opens up new possibilities of intellectual choice and decision for the academic legal community generally, as well as for particular law schools, these choices, once made, must carry with them certain determinate institutional consequences. As Christopher Lasch has remarked, "Unless the idea of choice carries with it the possibility of making a difference, of changing the course of events, of setting in motion a chain of events that may prove irreversible, it negates the freedom it claims to applaud". What we need as legal scholars is not "a whole bunch of different and competing visions" o£ legal practice each of which has "something to offer"."37 What we need, both as legal scholars and as citizens within legal orders which aspire to the values of constitutional freedom, is the institutional capacity to 56. Ibid., p.9. 57. Christopher Lasch, The Minimal Self: Psychic Survival in Troubled Times, London, 1985, p. 3 8 ; c f, Gordon, "Letter" supra n.54 generate good. common » rather than competing, visions of the The search for principles of political architecture and institutional design capable of housing some particular substantive vision of the good is bound, sooner or later, to lead us away from an exclusive, or perhaps even primary concern with the description, evaluation and reform of current legal practice. Once that happens, we will cease to think of ourselves as The skills of somehow akin to Twain's master pilot. pilotage may come to seem less important to us than the architectural skills of homo faber. Precisely because it is a product of human artifice, the law of a republican polity helps to fabricate a common world of man made objects whose durable structure amounts to an end in itself. Certainly, those structures are more than instrumental devices which alternately dam up or release the flow of energy generated by "good fusion". Once we come to understand ourselves as scholars bound by tradition or, better still, by a sense of anamnestic solidarity to preserve a constitutionalist canon of political architecture, we can begin to explore other legal and political cultures with a viei^ to the discovery or rediscovery of principles of institutional design aiming at the constitution of free public spaces within which determinate institutional choices and binding commitments can and must be made by a virtuous citizenry exercising a developed faculty of prudential judgment. Should any particular community of legal scholars come to conceive its role in those terms, it may find itself replicating ir^gSome degree the experience of the medieval law schools. The early European law schools, after all, were interested hardly at all in current legal practice, much of which seemed less legal than merely incoherent and irrational. Instead, legal scholars rummaged through the dusty attics and mouldering archives of a vanished legal civilisation in search of a style of political architecture that could accommodate and rationalise the dual sovereignty of church and state. Whatever one may think of the institutional structures constructed by those medieval legal architects, it is hard to deny that their achievements rested upon their corporate capacity to make determinate institutional choices regarding the goods which can and should be realised through the practice of legal scholarship. The worth of those goods did not rest upon their immediate relevance to the description, evaluation and reform of current legal practice. Nor did the worth of legal scholarship depend upon the willingness of law teachers to offer substantive visions of how professional advocates could act to make the medieval world a better 58. Harold J Berman, Law and Revolution: The Formation of the Western Legal Tradition, Cambridge, Hass • t 1983, esp pp.120-164 place Legal scholarship may, indeed, make the world a better place, but only if it comes to define its own role and special corporate responsibilities in terms of institutional purposes recognisably distinct from the norms governing the ordinary practice of law. The British Dominions as Bodies Politic Perhaps nowhere has constitutional scholarship more clearly lost its way and sense of institutional purpose than in the British Dominions. Hardly anyone appears to believe any longer (if anyone ever did) in the coherence of constitutional doctrine, while even fewer would be prepared to offer any substantive vision of how a constitutional lawyer in the British Dominions could act so as to make the world a better place. Constitutional scholarship mostly catalogues the deepening confusion generated by each new judicial effort to achieve doctrinal consistency in an antinomic universe of irreconcilable polarities. In these circumstances, words are apt to lose their meaning and a critical theory focused exclusively upon the doctrinal antinomies of current doctrinal practice will be powerless to recover principles of institutional fabrication which may once have had the capacity to infuse the public language of the law with determinate normative content. The structure of political obligation explicated within constitutional discourse must be supported by a set of more or less stable institutional practices. A critical canon of political design setting itself in opposition to monarchical orthodoxy would aim to discover ways and means of preserving institutional spaces open to a civic distribution of authority and capable of resisting the vicissitudes of fortune, the wasting effect of time and the demoralising experience of corruption. Federalism, citizenship and the civil body politic are all key terms in the language appropriate to a republican schema of civil interaction. Encased within the antinomic language of liberal constitutionalism, those ideas have lost their capacity to generate a binding and effective institutional n omo s vithin civil or political society. Overwhelmed by the essential indeterminacy and insecurity of contemporary social and political life, we have all but lost faith in our capacity to construct stable wordly structures capable of housing the common power of action embodied in a virtuous citizenry. It may be, however, that the creative potential of modern social movements could find institutional expression through a critical legal hermeneutic which points us towards an alternative path of constitutional development even as it exposes the antinomic incoherence afflicting Westminster constitutionalism throughout the British Dominions. That outcome would require a deep sense of commitment to constitutional values whose genesis has already become an impenetrable and irrelevant mystery to those who celebrate the infinite plasticity of a modernist consciousness liberated from the constraints of time and tradition. The flight from commitment to any particular set of institutional choices so characteristic of modern social life finds expression not only in the "minimal self" characteristic of the "culture of narcissism", but also in the demise of the doctrine of ultra vires in the realm of constitutional and corporate law. All these developments proclaim the essential indeterminacy of human and corporate purposes. The experimental life reigns supreme practically everywhere in already modernist culture. Left unchallenged, the modernist ideal of permanent cultural revolution within a pure social space of autonomous self-constituted groups must force us to abandon the republican concept of the civil body politic as a durable common world which takes on a life and a value of its own. To preserve the memory and reconstitute the life of the civil body politic, we will need the hermeneutic and critical skills of constitutional scholars seeking to adapt the political architecture of the classical polis to existing doctrinal materials and the ^gstitutional realities of modern and modern social life. J A critical legal theory in the British Dominions needs to recognise, not only the incoherence of current doctrinal practice, but also the alternative paths of constitutional development lying dormant in the residual remnants of classical political language still embedded in the traditions of Westminster constitutionalism. The federal principle, in particular, continues to resonate, if only weakly, within the constitutional law of the British Dominions; what we lack and urgently require is a doctrinal practice that would allow federalism to crystallise into a binding and fundamental law of political association capable of application to the "private" apparatus of corporate government. As things stand now, courts in the British Dominions regard themselves as bound to notice "the federal balance" as a insofar as it affects the constitutional norm only exercise of State and federal powers, and even then only when the relevant constitutional text manifests, expressly or impliedly, such an intention. This is true even of those judges ostensibly most committed to the defence of the federal principle. In the words of Gibbs J, "The ordinary principles of statutory construction do not preclude the making of implications when these are 59 Cf. C.Fred Alford, "The 'Iron Law of Oligarchy' in the Athenian Polis ... and Today", (1985) 18 Canadian Journal of Political Science 245; see also Charles N. Anderson, "Political Design and the Representation of Interests" in Philippe C. Schmitter and Gerhard Lehmbruch (eds), Trends____ Toward____ Corporatist Intermediation, Beverly Hills, 1979, pp 271-298 necessary to give effect to the wish of the Australia people to join in a federal union and the purpose of the and not r^ Constitution was to establish a federal, unitary system for the government of Australia ..."ou There are two unspoken corollaries of this proposition: first, the federal principle has no legal status apart from imperative constitutional text; and, second, that the federal principle has to do with the internal political order of the state rather than having application as well to the institutional life of civil society. Both assumptions have worked to hollow out the civic significance of the federal principle, thus robbing it of its capacity to serve as the normative foundation of legally determinate institutional choices in a republican polity. Federalism, according to the reading adopted by Gibbs, demands a judicial recognition that the framers of the Constitution "conceived the states as bodies politic whose existence and ^rjature are independent of the powers allocated to them". What is at stake in federalism disputes, in other words, is the existence of the "States as such". The "States as such" appear in what seemed to be a determinate institutional form, i.e. the "body politic". What, then is a body politic? The phrase itself reflected the English reception of a classical traditional political theory which sought to understand the distinctive nature of political experience. That classical tradition was deeply influenced by Aristotle’s definition of the polis as an "association of persons formed with a view to some good purpose". It followed that the classical body politic had to be designed so as to give normative and institutional effect to a doctrine of the good and just life. Politics "was the continuation of ethics ... the ethical character of action was not separable from custom and law". Politics was therefore "always directed towards the cultivation and formation of character; it proceeded pedagogically and not technically". The practice of the political virtues required a special kind of prudential understanding capable of matching up the goals of political activity with the ^operties and materials of existing institutional life. ~ The body politic, in other words, was an institutional space opened up to a distinctive schema of civil interaction grounded in the norma of civic freedom and political equality. As such, the political realm incorporated and belonged to the whole body of its associated members. It was in short, a public space of appearance which might come to be 60. Victoria v. Commonwealth (Pay Roll Tax Case) (1971) 122 CLR 353 at 417. 61. Melbourne Corporation v. The Commonwealth (State Banking Case) ( 1947) 74 CLR 31 at' 81-32 (per Dixon J). 62 Jurgen Habermas, Theory and Practice (London, 1974), p. 42. reconstituted in the civil corporation, as well as in the formal representative constitution of the state. In the common law of the New England colonies, the civil body politic founded upon the binding force of mutual covenant generated a common power of action in its members. The character-forming power of praxis rested, as in the classical doctrine of politics, upon a special sort of prudential understanding capable of providing a concrete guide to action. The capacity of practical philosophy is what Aristotle called phronesis. That phronetic capacity presupposed "a community in which there is a living, shared acceptance of ethical principles and norms". But, as Karey Harrison has pointed out, the circumstances of political and economic modernity make it impossible to assume "(because by and large it is not true) that there is a shared acceptance of norms and principles". It follows that the conditions for phronesis are no longer present. Rational disagreement over norms and values is an endemic and probably ineradicable feature of modern political and social life. The existence of such disagreements, however, does not necessaily preclude the possibility of It remains possible, as Harrison consensual action. suggests, "to distinguish between modern communities in which dialogue requires the practice of hermeneutics from the sort of communities Aristotle wrote about in which dialogue required the practice of phronesis". People may come to understand each other and agree upon a common course of action even Lxu the absence of a community of shared norms and values.0 In the modern world where the preconditions for phronesis are absent, only a critical legal hermeneutics could forge effective institutional links between political and social praxis and some more or less stable doctrine of the good and just life. It is precisely the incommensurability of rival theories and normative orientations that makes hermeneutics necessary: "The problem of hermeneutics is how can a text communicate with us when shared pre-understandings, prejudices and traditions cannot be assumed". The practice of hermeneutics makes it possible for us to understand rival 63. On the civil body politic in colonial New England, see Hannah Arendt, On Revolution. Harraondsworth, 1979, pp.141-178; also Joan C. Williams, "T h e Invention of the Municipal Corporation: A Case Study in Legal Change", (1985) 34 American University Law Review 369 at 409-420. The disintegration of the civil body politic is analysed in my Republicanism Redux? Federalism and the Constitutional Reformation of the British Dominions (forthcoming). On the relationship between hermeneutics and phronesis, see Karey Harrison, "Review of Richard Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis". Oxford, 1983, in (1985) 63 Telos pp. 225,227. theories Without that hermeneutic understanding of rival theories, it becomes impossible to undertake a rational comparative evaluation of competing normative orientations. But given an adequate hermeneutic grasp of competing principles, it becomes "possible for people to agree onrwhat should be done without necessarily agreeing O LJ.. . on why . In the context of Westminster constitutionalism, a hermeneutic approach to the idea of federalism might allow both conservative monarchists and radical republicans to agree on the need to preserve the identity of the states as bodies politic even when no consensus could be reached as to why the autonomous political identity of the States deserves constitutional protection. Such an agreement would go some distance towards a recognition that the substantive realities of federalism can and should crystallise into binding norms. The possibility of such a constitutional consensus might actually be enhanced by the present inability of monarchist judges to explain, even to themselves, just why federalism matters. A republican legal hermeneutic could link the federal principle to the ideal of mixed and balanced government once believed to be definitive of the ancient British constitution. The way might then be open to extend constitutional discourse deeper into the informal federal ,structure of the In that way, contemporary corporate welfare state. the application of the text of the existing Dominion constitutions to ourselves through the practice of legal hermeneutics could become "analogous to the relationship Aristotle describes between phronesis and praxis". A critical legal hermeneutic, centred on the principle of federalism and the idea of the body politic, need not presuppose an already achieved condition of universal political equality and civic freedom throughout the associational life of modern civil society. All that is required is the practical possibility of dialogue between rival monarchist and republican constitutional theories. Indeed, a commitment on all sides to an open hermeneutic discourse could, in itself, lay the foundation for the eventual crystallisation of those civic values into law. As Harrison argues, "it is when individuals try to act together, in circumstances where the means of coercion are absent and cannot be admitted, that they discover the need to treat others as equals if they are to gain their cooperation. It is the necessity of acting together with others without the use of coercion that engenders the respect presupposed by dialogue. When there is an absence of shared norms guiding action, hermeneutical discourse is required to 64. Harrison, supra n.63, pp.225-226. 65 Cf A.S. Miller, The Modern Corporate State: Private Government and the American Constitution, Westport, Conn., 1976, pp.200-209 produce sufficient understanding for agreement to be reached on what should be done (althoughparticipants need not necessarily agree on why it should be done). Hermeneutical discourse can lead to understanding of another with an incommensurable framework". No coherent understanding of the republican meaning of federalism is possible so long as constitutional discourse within the British Dominions locates the meaning of the States as bodies politic exclusively within the established canons of statutory interpretation. Up to the present, constitutional discourse in Canada and Australia has simply ignored, repressed, ordenied the existence of rival understandings of the federal polity grounded in the texts of republican political theory or in the The institutional architecture of the classical polis. inevitable result of that hermeneutic closure has been to impoverish constitutional discourse within the British Dominions thereby reducing, and perhaps destroying, its capacity to overcome either the antinomic incoherence of doctrinal practice or the absolutist potentialities latent within the monarchical principle. Detached from an hermeneutic encounter with the classical doctrine of politics, the concept of the State as body politic soon reduces itself to doctrinal incoherence and institutional indeterminacy. According to Dixon J of the High Court of Australia, the constitutional identity of the States as bodies politic arises "not from the character of the powers retained by the ... states but from their position as separate governments^ in the system exercising independent functions". The States do not incorporate the whole body of citizens exercising a common power of action. The bodies politic of the British Dominions have their formal genesis and being only in the corporate identity of the Crown and its agents. The problem then is to determine the essential functions entrusted to the States as agents of the Crown, (or in the American context as trustees for the people-at-large). Within a doctrinal universe ridden by the cross-cutting antinomic structures of legal form and political substance, each of which rotates in turn around the competing polarities of genetic legitimacy and telic politics, the attempt to define those essential functions is bound to collapse into a structured incoherence responsive only to the magnetic attraction of the dominant political schema guiding the exercise of the power. Every attempt to assert that this or that State function is essential to its function as a body politic is routinely met with the essentially unanswerable proposition that "There is no universal or even general opinion to what are the 66 67 Harrison, supra n 63, p.227 Melbourne Corporation v. The Commonwealth Banking Case) (1947) 74 CLR 31 at S2-S3. (State essential filiations, capacities, powers or activity of the States".00 The choice as to which of several existing or potential functions are essential to the operation of the State as a separate government is essentially arbitrary, depending essentially upon its relation to the particular modalities of state power currently favoured or tolerated by judicial opinion. Once again we must either deny our freedom to choose or choose only to be anything at all: "Who knows what the people we r^Lght be tomorrow would imagine for their own tomorrows?" Still less can we predict what the judges we might have tomorrow will choose for their oivn tomorrows. The Institutional Properties of a Republican Polity In the face of this radical indcterminancy, we now need more than anything else a constitutional doctrine capable of generating binding principles of institutional choice and authoritative decision-making. The first step in the growth of such a doctrine might endeavour to identify the institutional properties of a republican polity, if only because the classical tradition has identified the body politic as an arena of public choices which take the form of obligations binding upon all its members and their dependents. At this stage in the development of our historiographical and jurisprudential understanding of the republican tradition, it is both difficult and unwise to be particularly dogmatic in one’s efforts to specify just what those properties might be. But some tentative efforts can be made to establish the practical possibility of a modernised republican "idea of reason". It may well turn out to be the case that a republican schema of civil interaction has little relevance to the contradictory and conflict-ridden experience of political modernity, but a lingering sense of solidarity and respect for our republican ancestors alone might compel us to at least explore the jurisprudential possibilities which might open up by incorporating the civic ideal of a federal polity into a revised and enlarged doctrinal practice. Only those who have abandoned all hope of our realising any substantive vision of how legal scholars might act to make the world a better place could rest content with current efforts to consign the classical republican ideal of the federal polity to the dust-bin of pre-modernity. 6 8. South Australia v. The Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373 at 423 (per Latham CJ); The same antinomic confusion surrounds the concept of the "States as such" in American constitutional jurisprudence, see National League of Cities v. Usery, 426 US 83, overruled in Garcia v. San Antonio Metropolitan Transit Authority, 53 USLU 4135. 69 Clare Dalton, "Review of David Kairys (ed.) The Politics of Law", (1983) 6 Harvard VJomen’s Law Journal 229 at 241-43. What follows represents an early and necessarily tentative attempt to specify the institutional properties which the political architecture of federalism would seek to build into the stable worldly structures housing the republican polity. The object of this institutional design Lis to reconcile the generative principle of authority animating the body politic with the fundamental norms of civic freedom and political equality which serve to guarantee the constitutional liberty and institutional autonomy of civil society. 3y positing the independent existence of state and civil society as the complementary polarities of constitutional doctrine, a republican jurisprudence would recognise each as the simultaneous precondition and The task of delineating the consequence of the other. boundaries between their respective spheres would fall to a developed faculty of prudential judgment which unites the nomos generated within the institutional form of the civil body politic with the substantive values guaranteed by a universaliStic legal order embracing both state and civil society. The constitutional effect of the republican civic ethos is to embed the historically developed system of needs in a binding and authoritative web of publicly articulated values. The legal process within a republican polity would seek to generate substantive values mediating between the res publica and the system of private needs animating the life of modern civil societies. The mediating function of the lav; depends upon the existence of institutional forms which straddle the boundary between state and civil society. Unlike either the family or the state, the civil body politic is neither wholly private nor wholly public. The civil body politic is, in fact, a direct outgrowth of the republican principle of mixed and balanced government. As such it stands in opposition to the homogenisation of political power attendant upon both the abstract and disembodied logic of popular sovereignty and the vision of a "non-hierarchical community of interests". The political authority vested in the civil body politic should reflect the heterogeneity and diversity characteristic of modern civil society while it provides, as well, the institutional means to transcend that heterogeneity in the constitution of a common world of speech and action within, and between, the constituent units of a federal polity. The practice of republican citizenship in the public spheres constituted within the civil bodies politic of a federal polity can be understood as a "form of socially established cooperative human activity through which the goods internal to that activity are realised in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity". The practice of republican citizenship within ordinary civil institutions may still contain the power to engender a binding and authoritative doctrine of the good and just life The goods sought in the pursuit of the institutional tel os of any given civil body politic could only be achieved if new practitioners of the prudential art of citizenship subordinate themselves "to the best standard so far achieved", and that entails subordination "within the practice in [their] relationship to other practitioners". Those who cultivate virtues appropriate to the practice of citizenship will have thereby selected themselves as paragons of institutional authority in the eyes of their fellow citizens. The cultivation and preservation of the virtues appropriate to the practice of republican citizenship demands careful and close attention to the institutional properties of the civil body politic. Those virtues will be "fostered by certain types of social institutions and endangered by others". The sort of institutional milieu conducive to the development of a republican virtue is one which sustains the individual within "an historically extended, socially embodied argum^t ... about the goods which constitute that tradition" of practices. To extend the practice of citizenship into the realm of civil society requires, at a minimum, that civil bodies politic be endowed with the attributes of legality, plurality and publicity. Only by giving legal recognition to the substantive political role of the civil corporation can the modern system of needs to embedded in an institutional nomos which subordinates the impersonal market-oriented imperatives of economic efficiency and private profitability to forms of acti^j} rooted in a narrative sense of history and destiny. “ It is only within the free space opened up by the constitution of a public sphere within the ordinary civil corporation that the continuous argument over the binding telos of institutional life can be conducted among members of a civil body politic confronting each other as a natural persons, as distinct from mere personifications of their capital investment. The argument over the ends or purposes appropriate to any institutional practice of authority will be inextricably bound up with the genesis of the civil body politic in a federal compact, binding upon both its members and the larger polity. Unless the federal principle does come to be constitutionally anchored in the plural institutions of civil life, there can be little prospect that the modern system of needs can be subordinated to a binding and authoritative civic ethos. But a republican jurisprudence must be concerned, not just with the forms of public authority, but also to guarantee the autonomy of private and social life. Unless civil society comes to be recognised as an 70. Alastair MacIntyre, After Virtue: A Theory, Notre Dame, 1981, pp.175-178. 71 Ibid. . pp 182,206-207 72. Cf. Cover, supra n.41. Study in Moral independent focus of constitutional doctrine there seems little likelihood that the recurrent political option of a redemptive and enlightened despotism can long be shelved should the promise of abundance implicit in the developmental logic of the modern nation state fail temporarily or disappear altogether. The absolutist potential inherent in the prerogative power may still find its formal consitutional genesis and warrant in the common lav/. The sovereign right to legislate to deprive the subject of his life, liberty or property has been before and may yet again be placed within the more or less unconditioned and absolutist scope of the prerogative power. It is true that since the seventeenth century, the power to alter or amend the ordinary law of the land has been generally confined to the Crown-in­ Parliament. But, even at its best, the constitutional monopoly of the formal political authority vested in the Crown-in-Parliament condemns the mass of the population subject to its will throughout the British Dominions to an everlasting political passivity and constitutional impotence. It remains a constitutional impossibility for the Governor of a Province or Dominion to surrender to the people the prerogative power of assenting to legislation to alter or repeal the ordinary law- of the land. The sovereign image of the Crown remains firmly in place as the foundation principle of Westminster The Privy Council has ruled in Re constitutionalism. Initiative and Referendum Act that a Canadian Provincial legislature could not validly enact a law which makes "general provision for plebiscites or referenda that are legislatively self-executing" even in matters of Provincial jurisdiction. The British Constitution, upon an analogy to which the Provincial constitutions are founded, does not permit "the abrogation of any power which the Crown possesses through a person who directly represents it". Plebiscites and referenda are therefore of no more than advisory significance in the Canadian Provinces (and, presumably, the Australian States, as well). The execution of the legislative change envisaged by any given referendum proposal "wrould be entirely at the discretion of the provincial legislature, requiring the normal passage of a statute through the Legislature followed by Royal Assent g^Lyen by the Lieutenant-Governor on behalf of the Crown" ^ Meanwhile, Parliament may legislate to relinquish voluntarily its powers and privileges with respect to law-making. Statutes akin to the Canadian War Measures Act routinely provide that whenever the Governor-General in Council declares the existence of a state of emergency, the Crown may resume its absolute prerogative power to legislate free of restraint by the ordinary law of the land. 73 Re Initiative and Referendum Act [1919] AC 935; also, John D. Whyte and William R Lederman, Canadian Constitutional Law, second edn, Toronto, 1977, p.1-27 The obvious effect of such emergency legislation is to transform the Crown from a limited to an absolute monarchy which "does not require the c^isent of any other human agent in making public policy". Under ordinary circumstances, that absolute authority is simply vested in the unitary and sovereign will of the Brown-in­ Parliament. The unity and indivisibility of the Crown itself provides the original soruce and model for that absolute and sovereign legislative will. The formal constitutional privileges now enjoyed by the Dominion Parliaments represent historic encroachments upon the juridical terrain of sovereignty once occupied exclusively by the royal prerogative, through the grace of God and the ancient authority of the common law. The absolute law-making power of the Crown-in-Parliament is derived and inconceivable apart from the continued existence of the prerogative or reserved powers vested in the Crown as the final guarantee for the essential unity and indivisibility of the sovereign will. In the realm of constitutional and political theory, as Foucault once remarked, the King’s head has yet to be cut off./~' The problem is to constitute a political realm freed from the mytho/logic of an absolute sovereignty embedded in the developmental dynamics of the modern nation-state. The internal contradictions of Westminster constitutionalism offer little hope of a resolution of the rationality and legitimation crises surfacing in modern industrial societies whenever and wherever the liberal model of development fails to deliver on its promise of social cohesion and material abundance for all The modernist and telic view of politics which finds expression in the work of the critical legal studies movement seeks to mediate the endlessly proliferating contradictions of modern liberal social development in a manner that serves only to make the problem more complex. It is becoming clear that "the state itself will be a less and less suitable framework for the resolution of the problems" of "dispossession, displacement and marginalisation" characteristic of modern Western societies divided between the "functionally significant" and the "functionally superfluous". What we require is a new nomo/log>£1C of~ authority rooted in "practical arrangement: in ich sovereignty erodes, new functional arrangements and jurisdictions become more possible, and states become more like political parties". ° rpiThe federal principle anfi n nr might serve to mediate the 74 Julian H. Franklin, "Jean Bodin and the End of Medieval Constitutionalism", in Horst Denzer (ed.) Jean Bodin. Munich, 1973, p.151. 75. Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977. New York, 1980, p.121. 76 David E Apter, "The New Mytho/Logics and the Spectre of Superfluous Man", (1985) 52 Social Research. No. 2, p 305 between state and civil society, not developmentally as in the liberal and redemptive paradigms of state action, but in accordance with the logic of a constitutionalism rooted in an historical experience of sustained commitment to the norms of civic freedom and political equality in the multiple and cross-cutting allegiances of modern social life. A republican jurisprudence would institutionalise the nomological, as distinct from the sociological, diversity of a federal polity. No such doctrinal or institutional development is possible so long as judges and lawyers remain bound to the irrational raytho/logic of a unitary and indivisible sovereign will as the only hermeneutic truth open to them in circumstances of deepending social disintegration. Monahan demonstrates that a federal principle armed with nothing more than a statutory warrant for its existence will produce a helpless oscillation between the opposing poles of centrifugal and centripetal political and social pressures, while judicial review remains little more than an elaborate attempt to avoid the open expression of political preferences by taking refuge in the supposedly objective text of the Constitution. Since the idea of federalism does not now appear to prescribe any particular set of institutional properties, judges will continue to believe that it is illegitimate to make decisions based, openly at least, upon a preference for some particular substantive values. By disclaiming all responsibility for the substantive consequences of their decisions they will remain faithful to the judicial traditions of the limited monarchy. Responsibility for the welfare of the realm belongs, exclusively it seems, to the Crown-in-Parliament. Even conservative monarchists who locate liberty in the interstices of the black-letter law must find themselves alone, armed only with the hermeneutic skills of the common lawyer, in the face of the awesome might of a single, indivisible and ubiquitous sovereign will, embodied in the Crown-in­ Parliament in right either of the States or of the Commonwealth. In such circumstances, the crackpot political realism of our times will inevitably counsel a retreat into the forms of political piety and subservience to authority historically associated with Westminster constitutionalism. It has become commonplace among liberal constitutional scholars to accept as axiomatic the proposition that the British Dominions are, in substance, modern liberal democratic states. On that assumption, it must follow that the monarchical form of the Constitution must be regarded as "largely a facade, a relic of medieval reality, maintained in this more populist age because it is a convenient facade". Monarchy, as a political-constitutional structure is thus reduced to a "sentimental conservatism" of little practical significance because the "formal legal rules to which the courts .. have adhered are very much qualified by conventions wh^h determine how the legal powers are to be exercised". The master rnetonym of the Crown-in­ Parliament is employed to hold the elements of law- and convention in some sort of stable and harmonious balance with the opposed polarities of genetic and telic legitimacy. The problem is that the constitutionalist image of balance and harmony remains haunted, even in this "populist age" by both the authoritarian spectre of the Crown-out-of-Parliament and by the perhaps even more terrifying image of the people-at-large moved by the potentially totalitarian politics of redemption. Time and again legal scholars are driven to acknowledge the existence of an irreducible core of prerogative power whose absolutist potential lies apparently beyond the reach of constitutional law. It is an open question, for example, whether s.2 of the Commonwealth of Australia Constitution Act recognises that the Queen may by letters patent assign "further powers and functions" to the Governor-General in addition to his duty, under s.61, to execute and maintain-,^ this Constitution" and "the laws of the Commonwealth". ° The extra-constitutional provenance of the revolutionary power of an aroused and politically alienated population is even less open to doubt in the light of twentieth century experience. Having acknowledged the extra-consitutional nature of the prerogative power of the Crown-out-of-Parliament, attempts are sometimes made to present those "residuary powers" as a necessary, even desirable, attribute of an Executive power, exercised on substantial behalf of the community-at-large. According to this mode of legal apologetics, it is possible to identify those areas of government activity where "it seems desirable that the Executive should be able to act in the way it considers The assumption is, once again, that such appropriate". exceptional departures pose no real threat to the property and liberty interests of the individual since each British Dominion is, aftw^r all, "a democratic system subject to the rule of law" It cannot, however, be taken for granted that the informal conventions of representative democracy will be capable of sustaining institutional practices consistent with the norms of civic freedom and political equality. It is that residual theoretical and textual space opened up by the inherently ambiguous prerogative power that provides the breeding ground for the genetic myths of monarchical authority. the constitutional law of the British Dominions literally "embodies", in Apter's words, "a retrievable mythic inheritance, the memory of its remarkable and logic—defying previous episodes of 77. J. Fajgenbaum and P. Hanks, Australian Constitutional Law, second edn, Sydney, I960, pp.339-340. 78 Ibid. . p.355. 79. J. Goldring, "The Impact of Statutes on the Royal Prerogative", (1974) 48 Australian Law Journal 434 at 441_42. overcoming which serve as a sediment deposited on the present, a layering and an endowment" The hierocratic principle embedded in the mytho/logic of the British Crown constitutes not just an interpretative field; it also establishes a system of obligation. The nostalgia evoked by "the recollection of previous sacrifice helps define the . . . obligation" owed to sovereign authority in the present crisis of overcoming. The resulting theory of the prerogative power is embedded in the mythic representation of the state. The mytho/logic of sovereignty may, in times of disjunctive crisis, come to define its own negative pole in the sullen rebelliousness of the marginalised and dispossessed elements of the population while prov^ing "a method and an instruction for transcending it". ° The mytho/logical propensities of an "auto-legimating" state are subject now only to the relatively feeble constraints imposed by the conventions of a polyarchal political system already heavily mortgaged to the corporatist institutions of a private enterprise system which, in turn, controls the means of fostering life and redeeming the promise of abundance held out by the politically mediated system of needs. Should the rout inised processes of consensus formation and dispute resolution fail to generate the promised life of peace and abundance, the task of overcoming the intractable and deepening antinomies of modern civil and political life may fall to the redemptive politics of a social movement hostile or indifferent to the republican separation of law and politics upon which the positive achievements of If not, the nation may turn, instead, modernity depend. to a solitary "king of the Revolution", on the classic Bonapartist model, who combines the ancient image of monarchical authority with the total is'ing logic of an absolute poi^er released from all conventional and corporate restraints by the plebiscitary will of the people-at-large, as mediated through the singular Redeemer's own "mentalrepresentation of the social sphere". Neither modern social movements, nor those who rally in defence of the sovereign capacity to impose social order from above, seem disposed t.o fabricate civil bodies politic capable of housing the gathered social power of a free citizenry in stable worldly structures which outlive their makers. In either case, power drifts "toward pure democracy only the better to appropriate", 80. Apter, supra n.76, p.279; The Falklands War has left us with a valuable case study of the modern retrieval of the mythic inheritance available to Britain and its self-governing Dominions, see Anthony Barnett, "Iron Brittania", (1982) 134 New Left Review albeit at different levels, "the absolutist tradition".w Left to itself, a recharged myth of sovereign authority seems bound both to produce, and to feed upon its own antithesis in the form of an equally absolutist mytho/logic of the antistate, itself drawing on the millenialist hopes thrown up by the failed disjunctive moments of the past. The deepening secular crisis of late industrial society demands instead a critical jurisprudential strategy capable of arresting that destructive oscillation between myth and counter-myth. Once it has been institutionalised as the normative foundation of the constitutional and legal order, and anchored in a political culture which takes the monarchical form for granted, the hierocratic principle takes on a life of its own. Its constant, brooding and remarkable mutability must subvert the ubiquity intellectual or practical possibility of designing an institutional milieu within the British Dominions thelanguage of civic virtue and political receptive to freedom. To conceive of the Crown, in or out of Parliament, as the source of legal authority is to preserve a normative universe which permanently distorts the meaning of key republican ideas, most notably the principle of federalism, while deflecting the possibility of their institutionalisation in everyday civil life. Only by recovering the original meaning of those ideas and by developing a jurisprudential language togive institutional effect to their civic significance can we exploit the window of vulnerability which has opened up The legal in the citadel of liberal jurisprudence. language of sovereignty and rights seems to have become infected with a deepening and potentially fatal incoherence. Standing at the intersection between the crisis of liberal legalism and the recent revolution in the historiography of American republicanism, we nay now be able to glimpse the outlines of an alternative republican n o mo s in which the substantive normative of a federal polity might receive requirements institutional expression in a distinctive mode of civil interaction. The only other apparent alternative to the disintegrating doctrinal fabric of liberal jurisprudence, the critical legal studies movement, has so far offered nothing more than the irrationalist ideal of structuredenying structures which celebrate - and, indeed, make compulsory - the infinite plasticity of human nature and associational life. To hold up the ideal of a stable and 81 Francois Furet, Interpreting the French Revolution. Cambridge, 1981, pp.78,63; cf. Sheldon Uolin, "Postmodern Politics and the Absence of Myth", (1985) 52 Social Research, No. 2; Ferenc Feher & Agnes Heller, "From Red to Green", (1934) 59 Telos; Ferenc Feher, "Paradigms in Radical Politics", (1985) 63 Telos; also Whitebook, supra n.25 coherent noraos as the formal basis for the civil constitution of a federal polity is, for contemporary critical legal scholars, to sanction the crystallisation of an entrenched power order of illegitimate hierarchies and fixed social roles. It is true that to speak in the language of civic virtue is to prescribe the limits and boundaries of the common and private domains which we inhabit within the institutional matrices of state and civil society. But, contrary to Monahan and Unger, it seems clear that doctrinal incoherence and institutional indeterminacy in the pursuit of freedom is no virtue Conversely, the search for a republican principle of authority capable of fusing doctrinal form and normative substance, while preserving the autonomy of state and civil society, is no vice. Indeed, the future of constitutional freedom may depend upon our personal will and political capacity to continue that quest for the institutional preconditions of the good and just life Having tried, and repeatedly failed, to privatise, socialise or nationalise the modern corporation, we may yet find the constitutional means to civilise it.