Professor Denis Galligan delivers the 2011 Annual Lecture in Law and Society

16 June 2012

The 2011 Annual Lecture in Law and Society was delivered by Oxford Professor of Socio-Legal Studies Denis Galligan on the subject of The Indirect Origins of the Juridical Constitution, at Jesus College Ship St Centre on 15th June. Professor Galligan, also Vicegerent of Wolfson College, presented a number of illuminating constitutional snapshots from the last 300 years to explore the limits of representative democracy, and advanced the concept of the People as corporation to account for the constitutional prominence of social justice and rights at the expense of provisions for direct political representation.

Professor Galligan opened the lecture with a case which illustrated the division between the political and juridical constitution. In 1943, a challenge to the law of Virginia which required schoolchildren to salute the flag was brought before the US Supreme Court, and was upheld as unconstitutional by eight Justices, with the sole dissent of Justice Felix Frankfurter, who reasoned that, regardless of the merit of the law itself, to strike it down would be to undermine the responsibility of the People for their own government. This plea to preserve the political constitution from the juridical by invoking an image of active citizenship, Professor Galligan noted, is not, on the whole, shared by fellow judges, who have increasingly come to view the juridical constitution as the right of the courts to assert their authority and to have the final word in determining the meaning of rights as described in constitutional settlements.

Turning to the role of the People in constitutional agreements, Professor Galligan identified a trend in which the People claimed ownership of the constitution, but are barely present in it, in terms of their active participation in self-governance, having ceded all but the right of election of representatives to govern on their behalf. That said, Professor Galligan held that constitutions do show how a demos orders power relations, and that constitutions are invoked to call governments to account. Moreover, the power of constitutions is largely symbolic, since constitutions come to reflect a People’s image of themselves, and thereby become tantamount to sacred texts.

With the observation that, when the scope for political action for the populace is circumscribed in a given society, greater political emphasis is placed in the constitution, Professor Galligan turned to the question of why the People have not chosen, on the whole, to entrench direct democracy in constitutional settlements. Here, a series of significant constitutional moments from history were drawn upon to illustrate the argument; primarily the origins of republicanism emanating from Madison'€™s The Federalist, in which constitutions were deemed to serve to protect individual rights against the despotism of the majority.

Turning to England of the 1640s, Professor Galligan described a tumultuous period of English history featuring civil war, the execution of a King, and constitutional fervour, out of  which the idea of the House of Commons as the embodiment of the People emerged. It is this conceptualization of the corporation of people as an entity distinct from its members, whereby elected representatives are the only voice of the corporation, from which we can draw the origins of the modern quest for social justice in constitutions, which entirely eclipses the urge for political representation. By substituting the idea of the corporation of people for the people themselves, Professor Galligan concluded, the political character of the constitution is diminished.

A podcast of the lecture is now available from the right-hand link.