Exploring Political And Legal Constitutionalism Differences

Political and legal constitutionalism are contrasting ways of imagining the political world. A legal constitution is seen as a corrective to, or even a foundation for, a working political constitution. Political constitutionalism responds to majority views for enhanced and more equal public goods, whereas critics of legal constitutionalism argue that it inhibits progressive reform on the grounds of interfering with individual rights.

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Political constitutionalism and legal constitutionalism are not competing theories but contrasting ways of imagining the political world

Political constitutionalism and legal constitutionalism are indeed not competing theories but contrasting ways of imagining the political world. The two concepts are distinct, with political constitutionalism responding to majority views for enhanced and more equal public goods, while legal constitutionalism has been criticised for hindering such reforms on grounds of interference with individual rights.

Political constitutionalism is a theory that holds that governments can and should be legally limited in their powers, and that their authority or legitimacy depends on their adherence to these limitations. This theory, often associated with the political theories of John Locke and the founders of the American republic, raises questions about the nature of law and the possibility of self-limitation by governments. It also highlights the potential for constitutional constraints to be entrenched, or resistant to change by those whose powers are constrained.

Legal constitutionalism, on the other hand, has been criticised by some scholars for being introduced by hegemonic groups seeking to maintain their position in the face of political challenges. It is seen as a corrective to, or even a foundation for, a working political constitution. A legal constitution can provide a check on democratic governments, preventing them from falling below their self-professed standards of equality and respect. Courts, insulated from political pressures, can provide impartial judgments bound by constitutional law.

However, critics argue that legal constitutionalism can also be disadvantageous. Turning to the courts may offer an alternative to political action, but access to the courts is more restricted than voting and may be cost-prohibitive for ordinary citizens. Additionally, legal recourse can allow those with financial means to focus on single issues affecting their interests without the need to build consensus. The interpretation of the law and the intentions of the drafters of a constitution can also be subject to multiple meanings and ongoing debate.

While these two forms of constitutionalism may appear opposed, they are better understood as contrasting ways of imagining the political world. They offer different approaches to the relationship between law and politics, with legal constitutionalism emphasising the role of courts and constitutional law, while political constitutionalism focuses on majority views and the enhancement of public goods.

Political constitutionalism responds to majority views for enhanced and more equal public goods

Political constitutionalism is a concept that is often contrasted with legal constitutionalism. This differentiation is based on the philosophical and ideological underpinnings that shape the understanding of the political world.

Political constitutionalism is responsive to the majority's demands for improved and more equitable public goods. It is a dynamic approach that allows for the evolution of the constitution to meet changing social circumstances and progressive beliefs. This adaptability is crucial for upholding democratic ideals and ensuring that governments remain accountable to their citizens.

In contrast, critics argue that legal constitutionalism has been employed by dominant groups to protect their positions from political challenges. While it aims to safeguard individual rights, it has been criticised for hindering reforms that promote equality and social progress, often prioritising the maintenance of the status quo and the interests of privileged groups.

The separation of powers, a key principle in constitutionalism, emerged from the theory of mixed government during the English Civil Wars of the 17th century. The concept, popularised by thinkers like Jean Bodin and Thomas Hobbes, asserts that power must be concentrated at some level. In the context of revolutions in England, America, and France, sovereign power shifted from monarchs to the people as a whole, challenging the previous notion of "the people" as simply the "commons" or "many".

This evolution in thinking led to the understanding that the people are the authors of the constitution, which embodies their will and holds sovereignty over any subdivision, including the majority. The separation of powers divides executive, legislative, and judicial functions between distinct agencies, providing checks and balances within the government.

However, critics of judicial review argue that it can become arbitrary rather than serving as a check on arbitrariness. They contend that turning to the courts can be more restrictive than engaging in the political process, as access to the legal system is often limited and costly for ordinary citizens. Additionally, legal recourse can allow those with financial means to pursue specific interests without needing to build consensus.

Legal constitutionalism has been criticised for hindering progressive reform and favouring the status quo

The judiciary, empowered by the sovereignty of legal documents, sets limits on the processes and goals of government, including individual rights. This dynamic can hinder progressive agendas, as courts play a significant role in policymaking, and a narrow band of acceptable constitutional arguments may not align with progressive priorities.

Furthermore, critics argue that legal constitutionalism favours the privileged and those who benefit from current arrangements, hindering progressive reform. The notion of appealing to a popular consensus is often discounted by proponents of political constitutionalism, who believe it more directly represents popular views.

Additionally, access to courts, with their potential to shape policy, is more restricted than voting, and pursuing a case can be prohibitively expensive for ordinary citizens. This dynamic can further hinder progressive reform by creating barriers to legal recourse for those without significant financial resources.

While legal constitutionalism has been criticised for these reasons, it is important to recognise that it also provides a corrective foundation for a working political constitution. It aims to prevent democratic governments from sacrificing civil rights and pandering to populist sentiments or unrepresentative minorities.

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A court can be more impartial than a democratic government as its judgments are bound by constitutional law

The concept of constitutionalism is often associated with the political theories of John Locke and the founders of the American republic. It revolves around the idea that a government's authority and legitimacy are dependent on its adherence to legal limitations on its powers. This has given rise to two schools of thought: political constitutionalism and legal constitutionalism.

Political constitutionalism emphasises the role of the majority in shaping the constitution and enhancing equal public goods. It is seen as a way to prevent democratic governments from falling below their self-professed standards and to ensure all citizens are treated with equal concern and respect. However, democratic governments are susceptible to overreacting in emergency situations, compromising civil rights, and pandering to either electorally important minorities or populist sentiments.

Legal constitutionalism, on the other hand, asserts that the judiciary, insulated from political pressures, can provide a more impartial interpretation and application of the constitution. The judiciary's relative isolation from electoral influences and the longevity of judicial appointments contribute to this independence. The separation of powers between the executive, legislative, and judicial branches further strengthens the judiciary's ability to act as a check on the other branches of government, including setting limits on their processes and goals regarding individual rights.

While critics argue that legal constitutionalism can hinder progressive reform by favouring the status quo, proponents of legal constitutionalism highlight its ability to protect individual rights and provide a corrective to political overreach. The courts, bound by constitutional law, can ensure that government actions do not infringe on the rights guaranteed to citizens.

In summary, a court's independence from political pressures and its obligation to adhere to constitutional law enable it to act as a impartial arbiter, safeguarding the rights of citizens and holding democratic governments accountable to their constitutional obligations.

A constitution can be seen as a living entity, capable of responding to changing social circumstances and evolving moral and political beliefs

The concept of constitutionalism is often associated with the political theories of John Locke and the founders of the American republic. It revolves around the idea that a government's powers can and should be legally limited and that its authority and legitimacy are dependent on adhering to these limitations. This view is shared by many constitutional scholars and judges who embrace "living constitutionalism".

Living constitutionalism perceives a constitution as a living, evolving entity capable of adapting to changing social circumstances and evolving moral and political beliefs. This perspective gives rise to diverse theories regarding the interpretation of constitutions and the limits of legitimate interpretation. One school of thought within living constitutionalism draws parallels between constitutional interpretation and reasoning in other areas of the law, such as common law legal systems like the law of contracts and torts.

The evolution of a constitution as a living entity is influenced by the dynamic social imaginary, which refers to the shared understandings that shape social life. This evolution can be observed in the historical shift from mixed government to the separation of powers, as seen in the English, American, and French revolutions. The notion of the "people as a whole" emerged during these revolutions, shifting sovereign power from the monarch to the collective populace. This shift empowered the judiciary, as legal documents became sovereign and challengeable only by the people as a whole.

The judiciary gained the authority to determine the competencies of different branches of government and set limits on their processes and goals concerning individual rights. This evolution in the role of the judiciary is a defining feature of modern constitutionalism, coexisting with forms of political constitutionalism and mixed government. However, critics of legal constitutionalism argue that it may hinder progressive reform by favouring the status quo and privileged groups. They contend that political constitutionalism is more responsive to majority views and the pursuit of enhanced and more equal public goods.

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