Political Jurisprudence is a collection of essays that engage with the question of the relation of public law and politics. Readers of Martin Loughlin's previous work on the history and theory of public law will be familiar with the key theme presented here: public law theory must acknowledge the political roots of public law if it is to arrive at a satisfactory account of the sources of legal authority. In the volume under review, Loughlin sets out to explicate the theoretical background of this thesis and to deliver “a fuller statement of the subject of political jurisprudence” (p. v).

This statement, alas, consists for the most part of chapters offering exegetical work on authors Loughlin takes to belong to the tradition of political jurisprudence (Bodin, Hobbes, Rousseau, the Levellers, Burke, Santi Romano and Carl Schmitt). There are also two chapters with a thematic focus; one that offers a history of French political jurisprudence and another that aims to clarify the relation between political jurisprudence and the early modern discourse of reason of state. All these pieces are informative and valuable contributions to the history of constitutional ideas, but readers who expect a sustained systematic exposition of the project of political jurisprudence will have to make do with a very concise introduction and a short first chapter.

Loughlin introduces political jurisprudence as a response to two competing jurisprudential projects. Political jurisprudence, we are told, “rejects both legal positivism and normativist anti-positivism” (p. 4). Loughlin describes positivism as a jurisprudential approach that “begin[s] by presupposing the authority of the legal order” (p. 2). This characterisation might be taken to suggest that positivists attribute legitimate authority to every legal order. Of course, this would be a misunderstanding of contemporary legal positivism, but it is hard to make out whether Loughlin intends to endorse it. He describes normativist anti-positivism as the view “that law has intrinsic moral authority” (p. 3). That description entails, presumably, that positivists deny the claim that law has intrinsic moral authority. Loughlin, then, might simply want to point out that positivists do not aim to assess the soundness of the law's claim to authority, at least not in the context of their legal-theoretical inquiry.

Still, it seems odd to express this familiar point in potentially misleading terms. Loughlin chooses his rather peculiar characterisation of positivism because he wants to suggest that proponents of a positivist jurisprudence are barred from raising and answering justificatory questions. Echoing Carl Schmitt's attack on Hans Kelsen (see pp. 125–127), Loughlin claims that the primary motivation of the positivist distinction between description and evaluation of law is an interest in securing for jurisprudence the status of a science. Positivists, according to Loughlin, believe that questions of justification are not amenable to rational debate, and therefore must be avoided if jurisprudence is to be a respectable academic enterprise. This is a questionable account of the aims of contemporary positivist thought. It might be argued that it captures one of the motivations of Kelsenian positivism, but it is wrong to attribute to H.L.A. Hart and his followers the claim that the theory of law must be kept separate from political morality for the reason that moral judgments are inherently subjective.

It is a consequence of a positivist understanding of the limits of jurisprudence, Loughlin goes on to argue, even less plausibly, “that constitutional law is not part of jurisprudence” (pp. 2–3). Legal positivism thus reduces jurisprudence to “a series of technical questions concerning the structural form and methods of interpretation of the laws enacted by the state” (p. 3). This claim does not sit well with fact that Hart vigorously contested Austin's view that constitutional rules are mere rules of positive morality. Hart thought it was one of the cardinal virtues of his theory of the rule of recognition that it allows us to vindicate the legality of constitutional law. Kelsen, on his part, drafted a constitution, served as a judge on a constitutional court, and was one of the few contributors to the field of public law theory whose quantitative output easily dwarfs Loughlin's. And whatever one may think about the fruitfulness of Kelsen's or Hart's contributions to the theory of public law, nothing in a legal positivist account of legality bars a proponent of positivism from engaging with the normative question of the justification of legal authority. The positivist's claim, properly understood, is merely that the answers to questions of justification will not flow from a theory of the nature of law and that the inquiry will therefore have to be referred to normative political theory.

Where does this leave the project of political jurisprudence? It would appear that Loughlin's rejection of legal positivism is ill-motivated, at least if that rejection is to be justified by appeal to the claim that positivism “limits the province of jurisprudence by presupposing authority” (p. 4). And if the project of political jurisprudence was concerned merely to emphasise that we must distinguish between questions of legality and legitimacy, and be willing to engage in normative criticism of positive constitutional law so as to develop sound criteria of constitutional legitimacy, it would add little of distinctive interest to mainstream jurisprudential and political-theoretical debate.

To get at why Loughlin thinks that political jurisprudence is a distinctive project, we must take a glance at his reasons for rejecting normative anti-positivism, the second legal-theoretical project with which political constitutionalism is said to compete. In Loughlin's judgment, normative anti-positivism, as exemplified in the work of Ronald Dworkin or T.R.S. Allan, is in some respects preferable to positivism. He applauds it for supporting the view that “the establishment of institutional order produces good consequences” and for subscribing to the claim that “no precise distinction can be drawn between description (of what the law is) and justification (of what the law ought to be)”. Nevertheless, Loughlin takes issue with the normativist claim that “law has an intrinsic moral quality”. His beef with this thesis is that it imports “an idealized version of legality generated by a set of universal moral axioms” and thus fails to do a proper job of “explaining the often messy practices of actual regimes” (p. 3).

Loughlin does not offer an explicit argument against normative anti-positivism. Rather, he uses normative anti-positivism as a foil to highlight what he takes to be the key tenets of political jurisprudence:

Note that the claim that practical reason “cannot tell us what ought to be”, and is thus restricted to answering technical questions concerning the implementation of value judgments, echoes Loughlin's description of the positivist approach. But political jurisprudence goes beyond the position Loughlin attributes to positivists in holding that law is intrinsically authoritative, because it is made by a will that is said to be competent to bindingly resolve conflicts of value, and to do so without being accountable to antecedent normative standards. Loughlin's objection to normative anti-positivism, then, is not that the view claims that law has intrinsic normative authority, but rather that it holds that law expresses universal moral values. Political jurisprudence denies the existence of such values, and it must therefore reject the claim that law's normative authority might stem from them. As we noted above, there is nothing that bars a legal positivist who denies that law has intrinsic moral quality from evaluating the law's normative claims in light of moral standards extraneous to law. Loughlin's attack on normative anti-positivism implies that he would have to reject such a stance, since it is as incompatible with political jurisprudence's radical voluntarism about legal authority as normative anti-positivism.

The core of political jurisprudence is the idea that while the law is intrinsically authoritative, its authority does not depend on conformity to objective moral standards, whether these are regarded as contingently or necessarily related to law, but on its production by a sovereign power that is said to be endowed with absolute normative authority. Loughlin argues that the will that gives rise to an intrinsically authoritative legal order is “a special type of political power” which he calls potestas and which he describes as the “capacity of a collective singular, ‘the people’, who unite around a common political project” (p. 4). It is a popular sovereign, in other words, whose decisions Loughlin takes to have absolute normative authority.

Political jurisprudence, so understood, faces a simple dilemma. All political powerholders claim to represent the will of the people. Such appeals to the will of the people are at least in some cases inauthentic and unrelated to the collective pursuit of a common good. If that is admitted, political jurisprudence must outline criteria of authenticity that will allow us to determine whether political powerholders who appeal to the notion of popular sovereignty to claim authoritativeness for their decisions are justified in doing so. Loughlin is right to draw our attention to the fact that this is the project that most of the authors whom he takes to belong to the tradition of political jurisprudence were engaged in. However, careful study of these authors will reveal that any coherent theory of the conditions of authenticity of the will of the people must, in one way or another, appeal to the dreaded universal values that Loughlin is so keen to excise from jurisprudence.

Rousseau, one of Loughlin's key authorities, claimed of the terms of the social contract that “they are everywhere the same” (Rousseau, The Social Contract and Other Later Political Writings, ed. and trans. Gourevitch (1997), p. 50) – they invariably demand everyone's equal participation in and subjection to the common will. Equal civic liberty, Rousseau believed, can only be realised through a system of democratic self-government, and one that respects the separation of powers as well as the rule of law. Any community not organised in accordance with these principles must inevitably fail to secure the equal liberty of citizens and thus be regarded as illegitimate: “When scattered men, regardless of their number, are successively enslaved to a single man, I see in this nothing but a master and slaves, I do not see in it a people” (Social Contract, p. 48). It does not matter whether one holds that the directives issued by such a despotism fail to qualify as laws or whether one takes the view that they are laws, but laws that lack justified authority. In either case, the despot's will cannot be accorded absolute normative authority, since there is no reason to expect that it will serve the values a political association is meant to realise. Rousseau's political jurisprudence was undoubtedly committed to the view that questions of constitutional ordering are to be addressed with reference to objective moral standards.

The other horn of the dilemma is for the political jurisprudent to hold that every political regime which enjoys de facto success in making itself obeyed is to be regarded as an authentic expression of popular sovereignty. That, indeed, was the view defended by Carl Schmitt, whose works are one of the major inspirations for Loughlin's political jurisprudence. Schmitt rejected the claim that the authenticity of a popular will should be seen to depend on whether it serves the value of equal liberty, together with the corollary that a commitment to equal liberty provides an objective yardstick for proper constitutional design. Schmitt held, rather, that “considered juristically, what exists as a political power has value because it exists” (Schmitt, Constitutional Theory, trans. Seitzer (2008), p. 76), and he scornfully dismissed the view that political existence might involve more than a willingness, on the part of members of a group, to draw a friend-enemy distinction, on whatever grounds might strike them as appropriate.

Some passages of Political Jurisprudence unmistakably echo Schmitt's ideas and even his language. We hear, for instance, that “the political emerges through the formation of human groups whose mode of association has intrinsic value only through preserving the group's existence” (p. 76) and that “the authority of the people to fashion the political world is unbounded” (p. 48). For political jurisprudence to end up in Schmitt's corner, however, would be more than ironic, given that Loughlin motivates the project by claiming that other approaches to public law theory uncritically presuppose the normative authority of law. It will get us nowhere to replace this presupposition with the presupposition of the intrinsic authoritativeness of de facto power. If political jurisprudence were to embrace a Schmittian approach, it would have to endorse the view that might makes right, and thus lose any critical grip on the question of legal authority or constitutional legitimacy, as Loughlin comes close to admitting in a critical discussion of Schmitt's views (see pp. 129–133).

Loughlin is careful not to grasp this nettle. Like much of his earlier work, Political Jurisprudence avoids a clear decision on either horn of the dilemma, by emphasising at times the constitutionalist potentials of a jurisprudence concerned with the realisation of equal civic liberty, and at other times the normative voluntarism of a Schmittian conception of the political. The resulting ambiguity allows Loughlin to pay lip service to the normative substance of modern constitutionalism, even while claiming that law is subject to politics. It also raises the question, however, whether Loughlin's project of political jurisprudence succeeds in offering a coherent and distinctive approach to public law theory.