… forgetting that we have always gained greatest ground when we have adhered to the rule of law. The rule of law has marked each faltering step towards civilising of the human condition.
This paper shall seek to discover if when read in the context of the vicious polemic, which constituted The Political Constitution, Griffith really was rejecting the rule of law, and if so, he reasons for doing so.
When employed in argument against authoritarianism, government tyranny and discrimination, the rule of law may seem to appeal to the senses. The Rule of Law requires arbitrariness to be expelled from laws. It lends itself to stability and predictability, and may be said to appeal to an inner sense of what is right.
But for Griffith, whose model of the political constitution is based on conflict at societies’ heart, this conception of the rule of law is incompatible.
The first section of this paper shall examine in detail the following claim made by Griffith. ‘The Rule of Law’, he submits, ‘is an invaluable concept for those who wish not to change the present set-up.’ . In his characteristically unique (and ironically dogmatic) way, and to the detriment of his wider thesis, it is likely that Griffith rejects the formal conception of the rule of law.
The Second part of this paper shall seek to reconcile the Rule of Law with Griffith’s political constitution. The formal conception of the Rule of Law, as shall be seen, is not incompatible with the gist of The Political Constitution, but as shall be seen, Griffith nonetheless rejects it in adherence to his own dogma.
It shall then be argued that Griffith was wrong to dismiss the Rule of Law generally, and the Substantive conception specifically.
The Final section of this paper shall seek to propose how key elements of Griffith’s thesis, facilitating a substantive Rule of Law might be used to better assess the nature of the British constitution.
What did Griffith mean by the Rule of Law?
The scene of Griffith’s attack
In The Political Constitution Griffith appears to be advocating an agenda for radical reform. This is the case, although he does not actually advance any proposals identifiable as ‘radical’. This position is determined by reference to Griffith’s apparent rejection of proposals that he considers to be detrimental to potential reforms:
The ground is then shifted slightly and what becomes sacred and untouchable is something called the Rule of Law. The Rule of law is an invaluable concept for those who wish not to change the present set-up. A person may be said not to be in favour of the Rule of Law if he is critical of the Queen, the Commissioner of the Metropolitan Police, the Speaker of the House of Commons, or Lord Denning.
Having attacked the use of the Rule of Law as being a means to hold on to the status quo, Griffith then sought to define his understanding of the concept:
If the Rule of Law means that there should be proper adequate machinery for dealing with criminal offences and for ensuring that public authorities do not exceed their legal powers, and for insisting that official penalties may not be inflicted save on those who have broken the law, then only an outlaw could dispute its desirability.
And clearly Griffith was no outlaw. Poole has suggested that, “the real objection, then, cannot be the incantation of ‘the rule of law’ per se, but rather some of the ends to which that concept is deployed.” It follows that if the attack on the Rule of Law was indeed an attack on the way it is employed, not on the concept itself, one may question the utility of any further enquiry.
But Poole seemingly fails to take proper account of Griffith’s further barrage on the rule of law. Griffith continues from above:
But when it is extended to mean more than that, it is a fantasy invented by Liberals of the old school in the late nineteenth century and patented by the Tories to throw a protective sanctity around certain legal and political institutions and principles which they wish to preserve at any cost. Then it is become a new metaphysic, seeming to resolve the doubts of the faithful with an old dogma.
In this passage he appears to have been rejecting the substantive conception of the rule of law, as expounded through the works of Dworkin and Laws, scholars with whom The Political Constitution explicitly engages. From this, it may appear that Poole was at correct in placing Griffith’s conception of the Rule of Law within the ‘thin’ or ‘formal’ conception, laid out by Raz.
By placing this attack on the Rule of Law in the context of Griffith’s wider thesis, a fuller understanding of the attack shall be sought.
The Rule of Law in the Political Constitution
Firstly it can be said that for Griffith, the heart of the political constitution is conflict.Secondly, politics is the means by which conflicting claims from individuals and groups of individuals are resolved, temporarily. Finally it follows that as Griffith’s thesis is premised on the temporary, any device or concept that tends to permanence is naturally rejected by it. Thus Griffith rejects inter alia a written Bill of Rights (and fundamental rights per se), Referenda, and the European Convention of Human Rights. The Rule of Law is thus similarly rejected.
Each shall now be addressed in turn.
For Griffith, conflict is axiomatic;  it is to be found ‘at the heart of modern society.’ The importance of conflict is down to human nature; to the inevitable role it plays in human interactions. This view supports the modus operandi of the key institutions British constitution; Parliament and the courts both operate on an adversarial basis. The creative utility of conflict will not be denied, but Griffith puts less emphasis on this quality than may be expected.
Griffith’s constitution is, and ought to be, in a constant state of flux. He rejects the presentations of the constitution as being in equilibrium, and argues that the commonly associated metaphors of ‘checks and balances’ and ‘of ships of state on even keels’ as belying its true nature.
Exactly what Griffith considers ‘politics’ to be is less clear: ‘politics is what happens in continuance or resolution of … conflicts’. We know that he considered law as a subset of politics, but it is also clear that he attributes some special status to law: ‘Law is neither separate from nor superior to politics, but rather a sophisticated form of political discourse…’. As Gee points out ‘law is an important instrument for enabling governing institutions’ and, critically ‘law is also a key instrument in constraining those institutions’.How can the subordinate nature of law be consistent with its ability to limit political institutions?
Even when the above two axioms of Griffith’s constitution are considered, why the Rule of Law per se should fall foul of his criteria is not immediately apparent. As previously noted, it is possible that Griffith would have resented the ends to which the ‘Rule of Law’ was employed. The merits of the latter claim are more immediately apparent, as Raz identifies:
Not uncommonly when a political ideal captures the imagination of large numbers of people its name becomes a slogan used by supporters of ideals which bear little or no relation to the one it originally designated.
Raz’s argument is analogous to Griffith’s argument on fundamental human rights: ‘[o]ne danger of arguing from rights is that the real issues can be evaded. What are truly questions of politics and economics are presented as questions of law.’ Viewed in this way it is not surprising that Griffith rejects the Rule of Law. Analogously to the recognition of fundamental rights within the constitution, ‘[t]he rule of law is a political ideal which a legal system may lack or possess’, and it is well known that Griffith had principles filing his pockets and coming out of his ears. This may lead one to suspect that Griffith’s difficulty placing the Rule of Law within his political constitution was more fundamental than previously acknowledged:
A political constitution does not prescribe in any great detail because one of its basic features is its constant ability to change effected through the ordinary political process. It would not be coherent for the idea of a political constitution to prescribe that the nature and content of the constitution must always remain liable to change through the ordinary political process and yet also, at the same time, prescribe that very nature and content.
The preceding discussion sheds further light on the incongruence in Griffith thesis identified by Poole, and mentioned above. Poole identifies that Griffith criticisms of the Rule of Law extend to both the formal and substantive conceptions. However Poole excuses Griffith, noting that to avoid hypocrisy Griffith cannot reject both conceptions. Poole simply concludes that Griffith must therefore be taking issue with the way it is used.
Evaluating the strength of Griffith’s objections
Poole, in effect, finds it difficult to believe that Griffith is contradicting himself, and as such concludes he must have intended a more subtle point. In this, Poole’s logic is unconvincing. The reluctance to trust Griffith as Poole has here arises given the number of logical pitfalls that can be located throughout The Political Constitution.
Poole also previously recognised the appealing nature of Griffith’s polemical style. Of thePolitical Constitution, Poole said:
It reflects a brand of scholarship that is today almost alien: the argument is vibrant, passionate and intense, with the author welding both cudgel and rapier in his efforts to repel various enemies.
However, at the very least, the reader must be put on alert to be critical of the arguments advanced therein; Griffith argument lacks rigour in places. In this context a closer look at Griffith’s own conception of the Rule of Law shows it to be at odds with the thin or formal conception.
That conception of the Rule of Law requires a degree of stability in laws, and is premised on a capability of the law to provide ‘effective guidance’ in decision-making. This seems difficult to reconcile within a model that offers primacy to decision making ‘by reference to human behavior, political expediency or the placating of’ one’s ‘own non-conformist conscience’.
The Rule of Law seeks to restrict government’s actions through legal means, something Griffith explicitly seeks not to do. As law is to be recognised as politics, or a form of politics and the remedy is to be a political one. Why then can law not play this function of limiting the government?
Reconciling the Rule of Law and the Political Constitution
It has been argued above that Griffith did not successfully place any meaningful conception of the Rule of Law within his political constitution. The only remaining reason for explaining this shortcoming is the one Griffith himself gives, that ‘[t]he Rule of Law is an invaluable concept for those who wish not to change the present set-up’. To Griffith any conception Rule of Law fundamentally would offend his primary axiom.
Returning for the moment, to the metaphors mentioned above that Griffith implied to be so unhelpful. A ship on even keels and a state in equilibrium do not per se conflict with constant, and often unbalanced conflict. A ship on the high seas is, viewed at a precise moment in time, is unlikely to be described as being on even keels. Equilibrium is rarely static and often dynamic. Stability and certainty are not at opposite poles to conflict. Analogously there is no necessary incongruence between the Rule of Law and the political constitution:
… the rule of law can be regarded as a formal constraint on government rather than a substantive constraint. A substantive constraint on government would hold that there are some substantive things which are so important to use that government simply must not be allowed to threaten them… Bills of Rights such as the Human Rights Act 1998, might be regarded as constituting substantive notions of the rule of law. By contrast, the common law’s core idea of the rule of law… does not lay down substantive restrictions on what the government may do… Thus, the critical question becomes: does the government have the legal authority and, if not, how can it get it?
How the Rule of Law prevents reform in the way that Griffith suggests is difficult to see when it is framed in this way.
It is suggested that Griffith fell foul of the very criticism he levels against. This subscribes to a more legalistic constitution: cloaking his real case, one of seeking a more limited role for law and the judiciary, in a veil of colourful yet unfounded claims.
As Gee notes:
Griffith overstates his own capacity to conceive of radical change… there remained behind Griffith’s apocalyptic language, a continued confidence in the actual machinery of the British constitution… Griffith work is no one punctuated by calls for radical structural reform. EvenThe Politics of the Judiciary… did not advocate radical constitutional reform, but rather sought a heightened awareness of the judiciary’s position of the establish political structures.
Perhaps Griffith was guilty of deploying tools associated with the dynamic political constitution in order to ‘throw a protective sanctity around certain legal and political institutions and principles’ in order that they might be preserved. Indeed in The Political Constitution Griffith rejects proposals for sweeping constitutional change offered by Lord Hailsham and Sir John Laws.
Expanding the Conception of the Rule of Law
Although the distinction between the formal and substantive conceptions of the Rule of Law have been acknowledged, the discussion above deals largely only with the later. The formal or thin conception of the Rule of Law is, as it has been argued, reconcilable with the political constitution.
As for the substantive conception of the Rule of Law, one can be (close to) certain that Griffith’s thesis cannot be meaningfully molded to accommodate. Critical of Dworkin who advocates this conception the Rule of Law, he is likely to view it as ‘a synonym for a rights based theory of law and adjudication.’ And Griffith’s view on ‘rights’ is well established. However contrary to Raz’s assertion, giving the Rule of Law a substantive reading is not to deny ‘the term… any useful function’.
This represents a shortcoming of Griffith’s Political Constitution. It is not possible to attribute the same broad aspirational value to Griffith’s constitutional model as would be possible within a model which embraces the substantive conception of the Rule of Law.
A substantive conception of the Rule of Law is asserted here because of its aspirational nature. The view that ‘The Rule of Law has to mean more than the traditional procedural concept’, that ‘[i]n the contemporary world it must also mean respect for human rights and civil liberties’ is adopted.
Utility of the Rule of Law and the Political Constitution Today
The preceding has been largely critical of Griffith’s political constitution. Yet that the novelty of presenting the British constitution as ‘characterized by conflict, disagreement, messiness and chaos… was fresh, provocative, even unsettling for some’, cannot be denied. In the context of the constitutional debate observing and commenting on the transition from the political to the legal framework, Griffith’s thesis proves a powerful basis to challenge some sacred cows.
And while aspects of The Political Constitution may appear ‘clichéd’, the adage ‘Law is politics’ has the potential to form the basis of a powerful interpretive tool. Above, the difficulty Griffith had in delineating both the role of politics from law, and of the politicians from the judges has been alluded too. Griffith prescribes a specific set of roles to judges and the law, and another to politicians and politics. However, he offers no reason for this, and it is likely motivated by little more than his deep-rooted mistrust for the judiciary, and faith in political institutions. It is this dogmatic approach that leads him to discount the value of inter alia the Rule of Law, and fundamental rights.
If Law is truly politics, then it must be acknowledged that judges engage in political discourse. This acknowledgement must be more than a mere recognition that this happens, as a matter of fact. The engagement of the judges in the discourse must be placed on a legitimate footing. Attempts to limit the judges to ‘the purely legal’ on this view will be arbitrary and unsupportable. The mechanism must provide effective management and suitably delimit the judicial role in constitutional affairs.
The Rule of Law, it is argued, provides a convenient ‘in’ for the judges into the politics of constitutional affairs. The judiciary’s vital role in safeguarding individual’s rights against the ‘tyranny of the state’ via the vehicle of the Rule of Law is in healthy conflict with the state’s ability to trump the judiciary at every turn, through the political process.
The Rule of Law is a political concept, which operates within the (poorly delineated) political and legal spheres. Thus the Rule of Law acts to delimit and restrain the role of members of the judiciary as political actors. This gives rise to many of the conservative, nature of members of the judiciary that Griffith characterizes as ‘illiberal’.
It is worth mentioning here, that while there is clear and widespread fear of the ills of legal entrenchment, as characterized through The Political Constitution, it is likely that political entrenchment can prove at least as effective. If political values are attributed to the Rule of Law, far from robbing it of value, it may even provide a platform for reform.
There can be little doubt that The Political Constitution brought to the fore some home truths about the British Constitution. Unafraid to question the sacred cows of the Rule of Law, Fundamental Rights and the increasingly legal Constitution, Griffith falls pray to his own entertaining, yet vicious rhetorical style.
Griffith presents the Rule of Law as a mechanism used to maintain the status quo, but critically fails to present a convincing defense of this position. On the contrary, proponents of radical change appeared to be the same proponents of the Rule of Law. Determined to discredit the substantive conception of the Rule of Law as presented by Dworkin, Hailsham and Laws, Griffith fails to present a coherent interpretation of the concept. He seemingly rejects both the substantive conception of the Rule of Law, and that, which would be recognised as the formal or thin conception. Consequently Griffith undermines a key tenet of his thesis, as his rejection of a written bill of rights, and fundamental rights per se, was formulated on the same terms.
Searching within The Political Constitution it is possible to reconcile the formal conception of the Rule of Law within the model of the political constitution, deciphering what Griffith had perhaps intended. Inevitably though, it was not possible to show how the Rule of Law facilitated resisting reform.
Finally, the potential scope of the Rule of Law within altered political framework was presented. Griffith’s own axiomatic principles of ‘conflict, disagreement, messiness and chaos’, were considered in a framework of a political constitution that embraces a more substantive conception of the Rule of Law.
Despite some of the difficulties associated with The Political Constitution there is definite virtue in starting with the premise of human conflict at the heart of society. Too often debate on constitutional matters descends into an exercise in semantics, robbing the debate of its true meaning. Griffith’s places human and society at the heart of the British constitution, a decade prior to being informed on high authority that ‘there is no such thing as society’!
Yet as a former Leader of the House of Commons points out, in context this meant that ‘what she meant was that society has no independent personality of its own…’ The Constitution is in part determined by necessarily conflict at the heart of society, yet society has more positive attribute that must too be determinative:
… fortunately, the range of human instincts and emotional incentives is richer and more diverse… The great mass of humanity would not relish a life without the society of others… We derive our sense of identity, of status and of self-esteem from out association with others, and for that we need a cohesive society.
 Helena Kennedy QC, ‘Legal Conundrums in our Brave New World’ (2004, London; Sweet and Maxwell), at 2
 JAG Griffith, ‘The Political Constitution’ (1979) 42 MLR 1, at 15
 Perhaps ‘Open-Government’ (see The Political Constitution, at 16) was considered radical in 1978, when Griffith presented his lecture, although this is unlikely given the subject of the pilot episode of the BBC’s seminal political satire, produced in 1979: Yes Minister, Season 1, Episode 1, ‘Open Government’
 supra n2
 Thomas Poole, ‘Tilting at Windmills? Truth and Illusion in ‘The Political Constitution’(2007) 70 MLR 250, at 255
 supra n2
 see: Paul Craig, ‘Formal and substantive conceptions of the rule of law: an analytical framework’ (1997) PL 467
 supra n7
 supra n2, at 2
 ibid, at 17
 ibid, at 20
 ibid, at 8
 ibid, at 15
 As Gee observes: ‘unavoidable’, ‘undeniable’ and ‘permanent’, Graham Gee, ‘The Political Constitutionalism of JAG Griffith’ (2008) 28 OJLS 20, at 23; 24, and; 25
 supra n2, at 2
 ibid, at 3
 supra n17, at 26
 supra n2, at 1
 supra n17, at 30
 supra n2, at 20
 supra n7, at 256
 supra n17, at 28
 ibid, at 29
 Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 LQR 195, at 195;
 supra n2, at 17
 supra n28, at 196 (emphasis added)
 Read ‘Ideals’
 supra n17, at 37. Gee identifies ‘Griffith as cautioning that we ought not to distract ourselves with searching for grand constitutional theories…’
 Graham Gee and Grégoire Webber (2010) 30 OJLS 273, at 287-288
 supra n7, at 255
 For instance (n2), at 14 Griffith criticizes ‘the imprecisions of Bills of Rights’, yet in the same paragraph seeks reform to the law of contempt of court through ‘hard, blackletter reform of the common law… which will be relatively precise’
 supra n7, at 251; also supra n17, at 29
 supra n17, at 31
 supra n28, at 199
 supra n2, at 12
 As well, the formal conception of the Rule of Law requires judicial independence, which does not easily reconcile with Griffith’s thesis, for example see JAG Griffith, ‘The Brave New World of Sir John Laws’ (2000) 63 MLR 159, at 174
 supra n2, at 16
 supra n17, at 30
 supra n2, at 15
 Conflict at the heart of society
 supra n33, at 288
 Adam Tomkins, ‘Public Law’ (2003, Oxford; Oxford University Press), at 79-80 (emphasis added)
 supra n2, at 15
 supra n17, at 43
 supra n2, at 15
 Paul Craig, ‘Formal and substantive conceptions of the rule of law: an analytical framework’ (1997) PL 467, at 479
 supra n2, at 17
 supra n28, at 195
 Griffith’s model does however have a clear aspirational goal: to combat the authoritarian nature of governments, through the political processes.
 supra n1 at 5
 supra n33, at 277
 Secretary of State for the Home Department v Roth  1 CMLR 52, at 71 (Laws LJ)
 supra n17, at 43
 JAG Griffith, The common law and the political constitution, (2001) 42 LQR, at 59
 Although some commentators would suggest he merely describes, see Adam Tomkins,‘Our Republican Constitution’ (2005; Oxford, Hart Publishing)
 yet not necessarily Conservative
 supra n2, at 14
 Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (CUP, Cambridge 2007), at 47
 As values evolve over time, so will the value judgements attributed to the rule of law evolve.
 supra n33, at 277
 Robin Cooke MP, The Point of Departure (Simon & Schuster, London 2003), at 343