Who is the Guardian of the Constitution?

Strange phrase. “Guardian of the Constitution.” But it is the title of a book by my old colleague, Lars Vinx, now of Cambridge. The book is about Hans Kelsen and Carl Schmitt, who argued about it in the 1920s. But, oddly enough, if you are asking about the relevance of this subject to us, well, the phrase was used by Dominic Cummings in a House of Lords Committee on October 14th.

In fact, strange word, “Guardian”. A word that has been hijacked by that most-un-Guardian of things, the Guardian. But a word that is our standard English word for what Plato called phylakes: these were the elite figures who ran his ideal city called Kallipolis. Singular = phylax. Were these guardians mere technicians or philosopher-kings? A long time ago, the enterprising Peter J. Steinberger, in the American Political Science Review of 1989, wrote that Plato was a bit confused. Well, it is confusing.

The great double truth of all order is that we want fixity, stability, harmony – and we cannot have it. We seek unity, we get disunity. We want harmony, we get disharmony. We want peace, we get war. And since this is true at every level in life, it is emphatically true at the highest reaches of our states.

The question “Who is the Guardian of the Constitution?” is a profound question. It is a question about where we find unity, stability, order. But, you might notice, it is also a double question. It is, in fact, a paradoxical question. For surely, we might say, the Constitution itself is where we find unity, stability, order? And yes, that is what a constitution is meant to be. Americans certainly think so. The dictionary says a Constitution is “a body of fundamental principles or established precedents according to which a state or other organisation is acknowledged to be governed.” Let me draw out the logic of all this:

1. We have a government. But it lacks unity, stability, order.
2. So we shall have a constitution. This will be a set of principles or precedents that will give it unity, stability, order.
3. But how do we ensure that the constitution itself has unity, stability, order?
4. We shall appoint someone to be ‘guardian of the constitution’.
5. But how do we ensure that the guardian of the constitution can ensure unity, stability, order?

The answer is ‘You cannot’. There is, alas, an infinite regress here. But, as with all infinite regresses, we either have to abandon the regress, or keep it within thinkable limits which means, here, counting to three: 1. Government. 2. Constitution to stabilise the government. 3. Guardian to stabilise the constitution.

Let me quote Dominic Cummings, who is an admirably educated man for someone in public life:

It is not for unelected officials to be working secretly in some kind of Platonic guardian role to protect the system. That has been the way people have thought about it, and the effect of that has been what you can see, which is unprecedented distrust and hatred for the political class of this country. And if the response to the current crisis is doubling down on this approach and saying that the civil servants must be the guardians of the constitution all you will do with make more people hate you and make more people hate this building. The people who actually have to safeguard the constitution are the Lords and the MPs. It’s Parliament which has to safeguard the constitution. Thinking that this could be devolved to a bunch of officials in the cabinet office is what has got us into this nightmare in the first place. … This idea of civil servants as guardians of the constitution is pernicious in the extreme.

I live, as you probably know, in Turkey. The Turkish Republic was, from its inception, military. But it became civilian. This was symbolised exquisitely perfectly by the shift in Mustafa Kemal’s dress. He removed his military clothing and moustache and adopted civilian clothing, and was named Atatürk, father of the nation. Even now, long dead, he is still in some sense the sovereign, the guardian of the constitution, its father. But the guardian of the constitution, in the sense of its holy spirit, and I take this from some scholars, for most of the 20th century was the army. Yes, indeed. This, however, has changed in my time in Turkey. When I arrived in Turkey, everyone in academic circles saw the army as a sclerotic, coup-inclined institution which was holding back democracy. The government gradually broke down the independence of the army, so that it could no longer play the role of being the guardian of the constitution. The irony was that this did not mean more parliament. It meant less parliament. And arguably the guardian of the constitution is now the ‘Diyanet‘, i.e., the Government Ministry of Religion, which has a greater budget, we are told by the Nordic Monitor which has read the official report, “than the ministries of interior, foreign affairs, energy, trade, culture and industry”. Imagine the UK government giving more money to the Church than to the Home Office, Foreign Office, etc.

Let me ask in the abstract. Who is the guardian of the constitution? As you’ll already be aware, there is more than one answer.

• The King.
• The People.
• Representative Politicians i.e., Parliamentarians.
• Unelected Counsellers and Officials and Viziers, i.e., Guardians.
• Lawyers and Jurists.
• The Army.
• The Church/Ministry of Religion.
• The Party.
• The Universities, ha, ha.

No, actually, the Universities are a candidate. In Turkey, for instance, by and large, the universities serve as a sort of secular rival to Diyanet and Army as a guardian of the constitution, but operating often in English, and internationally and at a supposedly high intellectual level, though without any direct influence of the sort that civil servants and lawyers actually have in our system.

Anyhow, the point is that we don’t know exactly where to look. Perhaps we have to look at ourselves, and stop looking at others. This is in accord with what I think Cummings was telling the Lords.

I have recently been reading bits of Justus Lipsius, a Dutch scholar who flourished around the year 1600. I’ll spare you the details, but he was a political thinker (like Aristotle, he wrote a book called Politics) who said:

• It is no good depending on constitutional instruments. All we can do is encourage our politicians to be prudent.

Justus Lipsius, and his entire scholarly, quote-the-authorities, write-a-book-as-a-chain-of-quotations-from-Cicero-Tacitus-etc way of thinking, was soon displaced by Thomas Hobbes, and Hobbes’s insistence that we should not depend on authorities but get arguments clear. And Hobbes argued exactly the opposite of Justus Lipsius.

• It is no good depending on the prudence of politicians. All we can do is establish a sound constitutional instrument.

This is a serious question, the one between these two. I think we have set it to one side. Perhaps we all should reflect more on whether we think Lipsius or Hobbes was right. I take Dominic Cummings, in a way, to be more Lipsian than Hobbesian. If so, then our contemporary UK guardians of the constitution are more Hobbesian: they trust a sort of abstract system of rules, buttressed by ECHR, the UN and International Lore, pardon me, I mean Law.

What is interesting about relatively closed societies is that they like a clear answer to the question. If the party has an army and also is in some manner a church, then we have a closed, collectivist society. This still seems to be the paradigmatic Eastern model, in which elections are kurultays, i.e., ceremonial acts of acclaiming the leader who has seized power. (For this, see Iver B. Neumann and Einar Wigen, ‘The Legacy of Eurasian Nomadic Empires: Remnants of the Mongol Imperial Tradition’, in the book Legacies of Empire: Imperial Roots of the Contemporary Global Order (2015), pp. 99-127, at p. 111.) Whereas in the West we still hold onto the open society ideal whereby an election is a free emergence of a leader out of the undergrowth. This rules out party, army and church. And so we fall back on the civil servants, lawyers, those closed or unelected figures permitted within an open elected society, or we fall back on hopes like the People or perhaps even the King.

I certainly think Cummings is right to say that, for the United Kingdom, it should not be the civil servants. In addition, we should say that it should not be the lawyers either, and that the Supreme Court was a desperately misguided innovation: an exercise in increasing ministerial irresponsibility. But the rise of the officials and the lawyers, it seems to me, is because the ‘democratic’ and ‘undemocratic’ sides of our society are cracking and falling out of harmony with each other. Openly, we all exist in a happy haze of stories about Rayner, Farage et al. But more closedly, we look for an expert, a safe pair of hands, a heavily-suppressedly-biased political-correctaloid, to take over and delay Armageddon with one more layer of sticking plaster and soothing words and mentoring and monitoring and triple-locked pension.

This is all a consequence of the failure of modern Hobbesianism: that is, the failure of the view that we can establish the three-step-solution of a government, a constitution for the government, and a guardian for the constitution. Nay. The regress is infinite, and must be broken. Cummings is right: it must be broken by renewed responsibility. And Justus Lipsius is right: what we need is an education system that somehow reignites our interest in the value of Prudence, the great god Prudentia, the great virtue of Politics. (I should perhaps mention that the goddess Prudentia has two faces: yes, indeed, prudence is a two-faced virtue, designed to deal with the real world of snakes and fakes and takes.) Our ideas about Public Service should no longer be derived from Elizabeth II or the NHS nurses of that absurd Olympic display of 2012. They should be derived from, yes, Tacitus, and, I don’t know, Guicciardini, and Cummings’s old favourite, Bismarck.

James Alexander is a Professor in the Department of Political Science at Bilkent University in Turkey.