restore, albeit in a more democratic way (which Christianity has always innately demanded), a genuine ancient constitution, pivoted about shared telos and virtue. The state must, indeed, become once again a true (and not ideological) universitas, or community of common purpose, because any mere Oakeshottian societas, or bond of only formal agreement, now manifestly secures a community confined to the economic participation and banned from real political participation.14 It is not possible, as both Otto von Gierke and John Neville Figgis half allowed, to have a political unity of corporate bodies sharing sovereignty if the political whole be not also conceived
in a corporate or ÔuniversalÕ rather than ÔsocialÕ fashion, in OakeshottÕs specific sense. For one thing, as Augustine realised, any social formation has also the ÔuniversalÕ dimension of unification round a shared object of desire (even if this be the shared liberal desire to pursue individual desire only).15 For another, if the political state be merely neutral with respect to the purposes of the communities it contains, allowing a kind of liberalism of groups rather than of individuals, then this neutrality will tend to erode both the public pursuit of these purposes and their primary reality for the members of such communities, as we see today with the dissolving and privatisation of religious belief.
Inversely, a polity that is in itself a corporate universitas cannot be sustained if its purpose is not participated in and variously exemplified by sub-groups. For without their mediation, citizens will tend to become mere individuals and their perception of the state will be that of a single ÔsocialÕ force over against them. Just for this reason, the pre-Christian, relatively non-plural and in a sense Ôproto-modernÕ polities of the ancient world Ð both the Greek polis and the Roman Republic and Empire Ð tended already towards this sort of sophistic disintegration. Therefore the real alternative is between state as societas, mediating individuals or merely instrumental composing groups, or the state as corporation, itself composed of sub-corporations.16
For accidental reasons, Britain sustains in some areas certain features of this classical and gothic antiquity. It escaped revolutionary settlements, which were themselves the results of accidentally successful rebellions and no historical inevitablities whatsoever.17 Nevertheless, also for the contingent reason of Henry VIIIÕs state-led and parliament-endorsed Reformation, EnglandÕs parliamentary sovereignty has been itself in some sense the most ÔabsolutistÕ and the most abolishing of intermediate associations and local government, which survive till this day better on the Continent. Just for this reason, the United Kingdom has tended to oscillate between a dogmatism of the absolute power of Crown in Parliament on the one hand and an equal dogmatism of the absolute rule of law, on the other.18 In this way it is also inescapably a modern constitution, though unwritten, and equally subject to alternative executive or judicial capture.
All the same, since neither of these visions has ever triumphed in practice, it retains a certain mixture at the centre that is organic rather than agonistic and ÔbalancedÕ. In practice, as Burke envisioned, precedent, statute and equity remain a seamless whole, refusing any illusory ÔfoundationalismÕ of, respec- tively, positive precedent, positive authority, and moral authority reduced to a set of formal rules about rights. Law in England, Wales, Northern Ireland and, now, independent Eire (and in Scotland in a different Roman version) remains benignly ÔtautologousÕ and unfathomably self-founded.19 Law is not arbitrary custom, again as for Burke, because the transcendent, eternal divine
AQ: Please note that ÔCrown in Parlia- mentÕ has been made consistent.
law expressing the intrinsic Good can be gradually mediated by interpreted custom through time.20
It is in part for this reason of accidental antique survival that we focus especially on the contemporary fate of the British constitution below. The usual arguments to the effect that it should ÔmoderniseÕ and assume a specific written form like the constitutions of other countries miss the point that their liberal models are themselves now proving inadequate. And one can in any case note that only the United States possesses a truly unrevised constitution Ð the many revisions undergone in Continental countries belie any rationalist notion of an absolute distinction between constitutional law and the normal law of statute. Moreover, the polities of other countries (including some established by the United States) more often follow versions of the British parliamentary system than the American division of powers, even if they hybridise this with a presidential model Ð though precisely, one could argue, in order to sustain a ÔmonarchicÕ moment.
But in the case of all liberal constitutions, liberalism is here also hollowing itself out, because it is poised between the double void of two mere wills Ð that of the many and that of the one. Between their sway falls, inevitably, not a third vacuum, but, rather, the inextinguishable substantive space of loyalty and collective belonging, without which human beings cannot even form lan- guage communities. Unrelated to the good, to transcendence or to the univer- sal, these have often taken, and continue to take, unpleasant, atavistic forms. But with this unsavoury substance, the liberal blandness of mere form is in constant collusion. To escape it, one can only try to recover the sublimated substance of the true mixed constitution.
The United Kingdom is in some ways well poised to set an example here, by the very reason of its apparent belatedness, and can now leap ahead of the more drastic fate that is overtaking the newer constitutional rivals. Yet at the same time, this advantage should not be exaggerated. The equally modern British legacy of Ôcommon law sovereigntyÕ is recovering and forming a dev- ilÕs alliance with the German exportation of the legally dominated Rechstaat where democratic anarchy and oligarchic oppression are avoided only at the cost of an inflexible legal rigorism and the thwarting of democratic expres- sion.21 Simultaneously, the absolute sovereignty of Crown in Parliament, like- wise a common-law upshot, local government and much of the independence of other corporate bodies. In a situation where the very survival of the United Kingdom now depends upon the invention of some sort of subsidiary, federal arrangement, there is no future for a project that merely tries to resurrect what lies within the island of Great Britain.
To the contrary, we must urgently reverse the shocking miseducation of the British people in this respect, and connect British self-government with shared sovereignty and federalism of the Roman legal legacy. Yet,
ultimately, any absolute Germanic-Romanic contrast is an illusion: the truth is that such importation could also help us recover the real high medieval, non-absolutising spirit of the English common law, which owed much to Roman, feudal and Canon law sources.22 Often, under ecclesial influence, as with Magna Carta itself, the original tradition of English liberties and English representation was inseparable from an acknowledgement of the real ÔpersonalityÕ of corporate bodies, rendering England herself, like Christendom as a whole, a Ôcommunity of communitiesÕ.23 In many ways it was the strange division of Europe into the entirely overlapping jurisdictions of secular regnum and ecclesial sacerdotium that in the medieval period pre- vented any emergence of absolute sovereignty and upheld the primacy of the rule of law in a way that did not render this a sovereign ÔfoundationÕ. Instead, it left it as inseparable from pre-legal custom at one end and the actual enact- ment of statute, at the other.24
This point should today be related to the new resurgence of religious loyal- ties, too often in an atavistic and ideological manner. A post-secular approach needs to see a certain dialectical inevitability here, and to allow that public religiosity can be chastened but not removed from the scene. At the same time, it should further see that the major world religions themselves offer a certain critical chastening of loyalty through its pivotal link to transcendent norms that allow for a certain self-checking. Thus, in the case of the United Kingdom, the continued and theoretically central religious aspect of its con- stitution should also not be seen as an embarrassment. Rather, if the Anglican settlement is given (in continuity with Hooker, Andrewes and LaudÕs decisive Ôreforming of the reformÕ) a more Catholic than Protestant gloss, it can once more act as a carapace for the protection of substantive corporate liberties and a wider political participation.