As long ago as 1989, David Feldman gave us his vision of legal scholarship (“The Nature of Legal Scholarship” (1989) 52 M.L.R. 498). To Feldman, scholarship is motivated by “curiosity about the world”, guided by a number of ideals. These ideals include employing the most suitable investigative and analytical method to satisfy one’s curiosity, employing “reflective open-mindedness”, so as not to assume the result of one’s study, and a desire to publish, so as to illuminate others, including students, other scholars and the public. In the latest volume of the Key Ideas in Law series, Feldman tackles the constitution of the UK, based on over 50 years of his reflections on constitutions. This review will examine how Feldman’s work matches up to the ideals of scholarship which he has himself set.
Key Ideas in Constitutional Law is both the product of, and inspires, curiosity. Feldman’s curiosity is primarily about the constitution of the UK, and how it actually works. The author’s use of sources reveals considerable curiosity: one conspicuous example comes from his use of Lord Acton’s famous statement regarding the corrupting tendency of power (pp. 77–79). Rather than treating this famous phrase as an aphorism, Feldman sets it in the context of the correspondence between Acton and the historian whose book he was reviewing. This is illuminating, and enjoyable. The richness of Feldman’s work not only reveals curiosity, but inspires it. As is inevitable (and desirable) in a book of this length, the author does not seek to answer all questions. But he invites and encourages his readers to think about the topics: either for the first time, from a different perspective or better-informed than previously.
The first of the ideals raised by Feldman in 1989 is the employment of suitable methods to satisfy one’s scholarly curiosity. In this study, he uses a blend of descriptive, normative, historical and comparative approaches. Key Ideas in Constitutional Law presents what Feldman describes as the “working constitution”. He therefore starts not with conceptual analysis or theoretical investigations, but with an account of the 2024 general election. He describes how there was a peaceful transfer of power from one government to another, without major violence or impropriety. This is, as Feldman describes it, “a remarkable constitutional achievement” (p. 1): that one group surrenders power to their opponents because constitutional norms dictate that they should. Whilst normative discussion is present in the opening chapters of the book, it is fair to say that the bulk of these chapters provide a deep (as space allows) descriptive account of how key elements of the constitution work. The book becomes increasingly normative, with the final two chapters of the book concerning topics such as values and constitutionalism. He finishes with a topic which some authors would take first, regarding the meaning of “constitutionalism” (ch. 7). This approach is an effective one: by this stage, even a reader who was new to the topic at the outset will be equipped to consider issues of constitutionalism which may have proved overwhelming were they to be addressed at the start.
Acknowledging that all constitutions have a history (p. 12), Feldman reaches back into the past (pp. 24–25, 32, 36, etc.), but this is in order to explain the current workings of the constitution, either as to why the position has emerged as it is, or to demonstrate an important conceptual element. There are comparative elements to Feldman’s work: he refers helpfully to a range of constitutional systems, including the US, Australia, Canada, India, but also Bosnia and Herzegovina (pp. 72, 122–23), where Feldman sat as a Judge of the Constitutional Court for a number of years. He emphasises that constitutions will draw upon their context, referring to the religious contexts of Türkiye and Ireland (pp. 38–40). His account of devolution in the UK is usefully supplemented by a contrast with federal states in Germany and the US (p. 71). However, this focus is not primarily on the text of codified constitutions. Apart from an interest in constitutional preambles (pp. 121–23), Feldman is primarily concerned with how constitutions operate rather than so much on what they say. This is consistent with his view that one should not overstate the significance of a constitution being codified (pp. 10–11).
As befits a scholar of his experience, Feldman draws on resources beyond those typically legal. He considers that constitutions are about managing power (pp. 20, 29, 145), and so he sets out how sociologists have characterised public power. He makes extensive use of Weber’s account of the legitimacy of public power. However, he is (unsurprisingly) adept at traditional doctrinal analysis, for instance in his criticism of Supreme Court decisions concerning devolution: Feldman’s view is that the Supreme Court has not understood the nature of devolution as a process (p. 59).
Feldman’s second ideal is reflective open-mindedness. He does indicate that his objective when he started the work was to present constitutions “as dynamic systems for managing deep disagreement about the allocation and exercise of power within states, relying on people to conduct political conflict in a spirit of loyalty to the functioning of the state without surrendering critical analysis or policy aspirations” (p. vii). However, consistent with the idea of open-mindedness, Feldman does not seek to deny the existence of difficult questions, or advance a master-theory which attempts to simplify what is complex. For instance, he argues that there is no easy way of deciding how to interpret constitutions, the choice of interpretative method being ultimately a political question (pp. 13–14). He argues that constitutional questions are complex, and that merely expressing particular values will not necessarily answer such questions (p. 17).
Reflective open-mindedness is primarily an internal matter, and therefore can be difficult to detect in the work of others. However, there is evidence that Feldman revisits his ideas as circumstances change. He has previously expressed the views that certain traditions, including ethical standards, are at the core of the constitution (“Constitutional Conventions” in M. Qvortrup (ed.), The British Constitution: Continuity and Change (London 2013), p. 95). But, faced with the realities of Boris Johnson’s premiership, Feldman acknowledges (p. 33) that Johnson “did not recognise the binding authority of rule-based government when it did not suit his goals”. Likewise, Feldman considers that relying on shared ethical beliefs of the elites may become more doubtful in times of populism and a lack of shared backgrounds (p. 87). Further, Feldman has previously appeared to suggest that the UK’s constitution is “largely political” (“The Nature and Significance of ‘Constitutional’ Legislation” (2013) 129 L.Q.R. 343, 358). However, in Key Ideas in Constitutional Law, he doubts the utility of a distinction between legal and political constitutionalism: “in any state which respects values such as legal accountability and fairness the constitution will inevitably be both political and legal” (p. 143).
There is no doubt that this book meets the third ideal, this being the illumination of others. The primary audience of the book is likely law undergraduates thinking about constitutional law for the first time, or even for plucky applicants to study law courses. Perhaps particularly for them are the warnings that things constitutional are not so simple as they may seem (p. 17). However, even seasoned scholars will likely be told (or at the very least, reminded of) something which they did not know. This is all the more so, given the wide range of sources on which Feldman draws. This reviewer’s own constitutional law teaching has not regularly referred to the position in ancient Egypt (pp. 25, 43–44, 111) and has been all the poorer for it.
Feldman’s aims go far beyond the descriptive: he makes important contributions to key debates regarding constitutional law and principles. For instance, he shows considerable sympathy for accounts of the constitution which stress collaboration between its different elements (pp. 9, 117 and 153, referring to A. Kavanagh, The Collaborative Constitution (Cambridge 2023)). One of Feldman’s major themes is that the constitution provides a framework for questions being answered, rather than answering the questions themselves. For instance, elections are a way of managing disagreement as to the public good (p. 19). Much of the book concerns institutions and the relationships between them (chs. 3–5). The civil service, often neglected in undergraduate accounts of the constitution, is vital, demonstrated from the Anglo-Saxons onwards (pp. 44–45, 51–52, 138, 154). The interaction of institutions itself leads to the development of constitutional norms. Feldman’s comparative references to the US Constitution serve to support his theory regarding the role of a constitution: he argues that it was the gaps, rather than so much the substance, of the US Constitution which allowed the constitution to survive (p. 11). This does not mean that constitutions lack content. For instance, he refers to the changes made by Margaret Thatcher to the relationship between central and local governments (pp. 36–37). This story shows Feldman that the UK constitution is “poorly protected”, in that it can be covertly changed. In order for this to be true, the constitution must have some content. Indeed, the boundary between a rule or doctrine being an aspect of the framework for resolving disputes, and it being an answer to a dispute, may not always be clear. Perhaps this is largely a matter of emphasis in presentation.
Not every reader will agree with Feldman’s approach to the constitution: perhaps as someone who considers that disagreement should be ventilated and managed, he would not be unduly upset about this. However, there is little to criticise about the book on its own terms. It is true that not every question is pursued to a definitive answer. For instance, in his discussion of parliamentary sovereignty, the author sets out competing views as to the limits or challenges to the doctrine. He does not, however, reach an overarching concluded view on the issue, albeit he does describe the King in Parliament as the “supreme legislature”. To an undergraduate reader, looking for another viewpoint to cite, this might be frustrating. However, Feldman’s approach is justifiable: given that he is focusing on the working constitution, he can legitimately conclude his discussion by observing that the results of the different theories do not make a major difference in reality (p. 91).
One potential query which might be raised relates to the title of the book. Is the book really about key ideas in constitutional law? Or is it about the constitution, recognising that law, at least as it is traditionally studied by law students, is only a part of this? Feldman analyses a number of issues from a perspective different to that of an orthodox book on constitutional law. For instance, a traditional description of the separation of powers would typically have discussion of R. v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 A.C. 513. The author does not mention this case in his detailed discussion of the separation of powers but does, for instance, explain the tensions arising from resourcing the justice system (pp. 109–11). Whilst, in some sense, any question about public resourcing is a matter of (or at least connected to) law, it is presented primarily as a matter of politics. Feldman’s account of the separation of powers is richer than one which is merely about the law, traditionally conceived. Perhaps the title suggests that the book is more limited than is in fact the case.
Key Ideas in Constitutional Law meets the targets set by Feldman for scholarship. It is the product of, and inspires, curiosity. It is based on appropriate methods, is the product of considerable reflection which has the hallmarks of open-mindedness, and is highly illuminating. But the work not only does these things: it does them extremely well. The structure of the work (in starting with the 2024 election), which the author acknowledges to be unusual (p. vii), supports the overall thesis regarding the significance of the working constitution, and evidences his claims regarding the complexity of constitutions (p. 153). It stands as an inspiration to students of the constitution, both old and young, to be curious about the topic in new and different ways.
