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4 Id. at 1.Google Scholar

5 Id. at 5.Google Scholar

6 Id. at 5.Google Scholar

7 Id. at 6.Google Scholar

8 Id. at 14.Google Scholar

9 Id. at 19, 20.Google Scholar

10 An exception is Martin Loughlin's inclusion of Griffith within the “functionalist style of public law,” one characteristic of which is avoiding “getting too bound up in the promotion of form (concepts) over substance (ends).” See generally Martin Loughlin, The Functionalist Style in Public Law, 55 U. Toronto L.J. 361, 363 (2005).Google Scholar

11 In this paper, our interest lies with the language of public law used by academics involved in the study of public law. This includes, but is not limited to, legal academics; it also embraces political scientists and political theorists who draw on public law when trying to make sense of the constitution. Hence, it is all academics involved in the study of public law that we have in mind when we refer to “public lawyers.” But this should not be taken to imply that we view the language of academics as more important than, or necessarily that different from, the language used by the lawyers, judges, politicians, officials, activists, and others involved in the practice of public law.Google Scholar

12 Noam Chomsky puts it thus: “A person who speaks a language has developed a certain system of knowledge, represented somehow in the mind and, ultimately in the brain in some physical configuration.” Noam Chomsky, Language and Problems of Knowledge 3 (1987).Google Scholar

13 For now, we use the singular to talk of the language of public law. This is for simplicity of exposition. We do not deny that academic public lawyers within different schools of thought appeal to more or less distinct a vocabulary of public law; indeed, this is a point to which we return below.Google Scholar

14 On understanding the political constitution as a model, see Graham Gee & Grégoire Webber, What is a Political Constitution?, 30 Oxford J. Legal Stud. 273 (2010).CrossRefGoogle Scholar

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16 Developing an internal critique of the political model was the invitation made by the organizers of this symposium. See the accompanying paper by Marco Goldoni & Christopher McCorkindale, Why We (Still) Need a Revolution, 14 German L.J. 2185 (2013); see also Marco Goldoni, Two Internal Critiques of Political Constitutionalism, 10 Int'l J. Const. L. 926 (2013); Marco Goldoni, Political Constitutionalism and the Value of Constitution Making, Ratio Juris (forthcoming 2013). The need to craft an internal critique was also the starting point of a previous essay that we wrote on the political model: Gee & Webber, supra note 14.Google Scholar

17 Oakeshott made a similar point on the ambiguity of political vocabulary, perhaps exaggerating in saying that “it would be difficult to find a single word that is not double-tongued or a single conception which is not double-edged.” Michael Oakeshott, The Politics of Faith and the Politics of Scepticism 13 (T. Fuller ed., 1996).Google Scholar

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19 Cabinet Office, The Cabinet Manuel para 3.1 (1st ed. 2011). The paragraph continues to read: “The Prime Minister will normally be the accepted leader of a political party that commands the majority of the House of Commons.” Id. (emphasis added).Google Scholar

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21 Even this is too simple a formulation to reflect the practices anticipated in the Fixed-term Parliaments Act 2011, 2011, c. 14, (Eng.), which anticipates a 14-day period during which the Commons, after withdrawing its confidence in the Government, may express its confidence in the same or a differently constituted Government.Google Scholar

22 Griffith, supra note 1, at 16.Google Scholar

23 Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991).Google Scholar

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25 See, e.g., J.A.G. Griffith, Central Departments and Local Authorities (1966); J.A.G Griffith, Parliamentary Scrutiny of Government Bills (1974); J.A.G. Griffith & M. Ryle, Parliament: Functions, Practices and Procedures (1989).Google Scholar

26 Loughlin, Martin, John Griffith: Ave Atque Vale, 2010 Pub. L. 643, 648. Griffith himself put it thus: “I distrust formulations which begin by developing something called ‘The theory of the Constitution’ and go on to describe something else called ‘what actually happens.’ Whatever written documents may say, the Constitution is what happens.” J.A.G. Griffith, Judicial Decision-Making in Public Law, 1984 Pub. L. 564.Google Scholar

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29 Tomkins, , supra note 20. At the workshop from which this symposium springs, Tomkins suggested that the title of his earlier essay should have read “What is the House of Commons For?”, insisting that whilst the Commons does not legislate, the House of Lords does. The amended title and emphasis do not answer the challenge we outline here.Google Scholar

30 Tomkins, , supra note 28, at 54 (emphasis removed).Google Scholar

31 Tomkins, , supra note 28, at 76. Griffith expressed a similar point this way: “What happens in Parliament is often not the most formative part of the legislative process. The most formative part is when the Department is considering and consulting with the affected interests.” Griffith, supra note 1, at 14.Google Scholar

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33 Tomkins, , supra note 28, at 77. In addition, Tomkins qualifies the same claim with “principally a legislator” and “primarily concerned with legislation.” Id. at 54, 58.Google Scholar

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36 See Ivor Jennings, Parliament (2d ed. 1957). According to Jennings, “[w]e are talking in fictions or concepts even when we mention ‘Parliament.'” Id. at 2. Jennings continued to explain that Parliament consists not of one institution, but of two Houses and, in its legislative capacity, of the Sovereign. See also Adam Tomkins, 'Talking in Fictions:’ Jennings on Parliament, 67 Mod. L. Rev. 772 (2004).CrossRefGoogle Scholar

37 The complexities of legislating by institutions are explored in Richard Ekins, The Nature of Legislative Intent (2012).Google Scholar

38 J.A.G Griffith, Parliamentary Scrutiny of Government Bills 13 (1974).Google Scholar

39 Id.Google Scholar

40 Although he does not have recourse to the labels “political” and “legal” constitution, see the account in Martin Loughlin, The British Constitution: A Very Short Introduction 105–19 (2013).CrossRefGoogle Scholar

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44 Bellamy, supra note 41, at 95. Among those commentators could be counted Bellamy himself, who elsewhere has argued that “[i]n practice, though, the lack of entrenchment seems to make little difference to the role or influence of judicial review vis-à-vis the legislature.” Bellamy, supra note 15, at 59.Google Scholar

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47 Id. at 88. For Bellamy, this is a worthwhile undertaking because “if such an account could not be given, then the political constitution would be dead-if, indeed, it had ever been alive.” Id.Google Scholar

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49 Id. at 101. This recognition casts doubt on his claim that weak-form judicial review reserves “ultimate supremacy” to Parliament.Google Scholar

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52 Id. at 48. As Janet Hiebert reviews in her study of political reactions to the European Court's ruling on prisoner voting, “*f+raming rights in legal language alters perceptions of institutional competence so as to conceive of responsibility for interpreting rights as a judicial rather than parliamentary responsibility,” with the consequence that governments and parliamentary actors attempting to dissent from court judgments will be considered by many to “constitute an exception to rights rather than as a valid judgment about compatibility with rights.” Janet Hiebert, The HRA: Ambiguity About Parliamentary Sovereignty, 14 German L.J. 2253 (2013).CrossRefGoogle Scholar

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