Ian Ward

Beyond Constitutionalism: The Search for a European Political Imagination

Two recent books, Joseph Weilers The Constitution of Europe and Larry Siedentops Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ‘new’ Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weilers and Siedentops books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibnizs ‘universal’ jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ‘new’ Europe; just as, indeed, it was for the ‘old’ Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibnizs jurisprudence requires that we think, not merely ‘beyond’ sovereignty, or even beyond democracy, but beyond constitutionalism.

Shabina Begum and the Headscarf Girls

The issue of headscarves has generated much cultural and political commentary in recent years. It has also been the subject of recent legal proceedings in the UK in the case of SB. The purpose of this article is to examine this case within its broader cultural, textual and interdisciplinary context. The article opens with a discussion of SB. The second part then introduces some of the broader debates which oscillate around the issues of headscarves and their cultural implications. Subsequently, the third and fourth parts argue the case for a specifically narrative intervention in these debates, one that resonates with the poetical aspirations of ‘law and literature’ scholarship. The final part includes a focused discussion of headscarves as a central theme in Orhan Pamuks recent and much admired novel, Snow.

THE ECHO OF A SENTIMENTAL JURISPRUDENCE

This article revisits what the poet Samuel Taylor Coleridge termed the ‘rage of metaphysics’, the grand intellectual engagement that defined the late eighteenth and early nineteenth century Enlightenment. It does so in order to retrieve an alternative jurisprudence, one that described itself as much in terms of sentiment as of sense. It is suggested that one of the most striking expressions of this jurisprudence can be found in Adam Smiths Theory of Moral Sentiments. This attempt to retrieve a sentimental jurisprudence chimes with a wider intellectual movement, headed by the likes of Richard Rorty and Martha Nussbaum, which seeks to reinvest a ‘new’ humanism in both domestic and trans-national legal and political order. It speaks more particularly to recent debates surrounding the nature of human and civil rights, and enjoys an added resonance in the context of recent attempts to fashion a jurisprudence of ‘reconciliation’ in South Africa and elsewhere.

Fairyland and its Fairy Kings and Queens

‘Fairyland and its Fairy Kings and Queens’ is a review article of a collection of essays examining the responses to the death of Princess Diana, entitled ‘After Diana: Irreverent Elegies’. The purpose of this article is to trace the origins of the Diana phenomenon, and particularly that variant which possessed the English political imagination in late summer 1997; and in so doing to investigate further the cultural context of a constitution that is presently the subject of considerable debate regarding its potential reform. The first part will take a closer look at ‘Diolatry’. The second part will then concentrate upon the ultimate Diana figure in English constitutional history, Gloriana herself, Elizabeth I. The third part of the article discusses the residual authority of monarchical iconography in the English constitutional culture. The conclusion will then suggest why, rather than testifying to a supposed mood of fundamental constitutional change abroad in the country, reactions to Diana’s death evidence the innate strength of a constitutional imagination that still craves the reassurance of its Fairy Kings and Queens.

Emily Brontë and the Terrorist Imagination

Emily Brontë’s Wuthering Heights has long enjoyed a place at the heart of the nineteenth-century literary canon. For much of this time, criticism has focused on the metaphysical, even mystical, elements of the text; and rather less so on the more prosaically political. Yet, there is, of course, no easy separation of the poetic and the political, and the purpose of this article is to take Emily’s novel and place it within the context of one very pressing contemporary political debate; that which oscillates around the ‘‘war on terror’’. Elizabeth Gaskell famously observed that Wuthering Heights is full of ‘‘grim and terrible criminals’’, its author too obviously entranced by narratives of ‘‘positive violence’’. As her near contemporary Emile Montegut confirmed Wuthering Heights is a novel of ‘‘terror’’ and ‘‘criminal passions’’. Of course, connotations and conceptions of terror change over time; that is part of its enduring fascination. Just as we today are warned that we live in an ‘‘age of terror’’, so too were those who read Wuthering Heights. Of course, we are supposed to be terrified by Islamic fundamentalists rather than by Jacobins and revolutionaries, haunted by images of ranting clerics and deluded suicide-bombers rather than by images of rioting slaves and demonic orphans. But the expectation is just the same. The threat which Emily Brontë insinuated, of an English idyll visited by an ‘‘other’’ of dark and apocalyptic violence, is a familiar one. In casting it before her audience in early 1847, Emily was adopting the position of a radical, ‘‘even revolutionary’’ writer;

A Man of Feelings: William Godwin's Romantic Embrace

Abstract William Godwin is remembered as one of the leading radical philosophers in late Enlightenment England. His three-volume Enquiry Concerning Political Justice remains one of the most compelling accounts of the philosophy of anarchy in the English language. Godwin wrote other tracts and treatises on a number of issues in political and moral philosophy. And he wrote novels, too; increasingly so in later life. In the wake of the apparent demise of English radical ism, like many of his more politically engaged compatriots, Godwin saw literature as the most effective means of perpetuating this radical tradition. This article discusses a number of Godwin’s novels, at the same time providing a broader contextual introduction to late Enlightenment political romanticism.

The prejudices of Mary Hays

During the 1790s, Mary Hays was one of the most influential radical novelists and polemicists in England. She counted amongst her closest friends and mentors the likes of Joseph Johnson, William Godwin and Mary Wollstonecraft. During this tumultuous final decade of the century, she published two novels, The Memoirs of Emma Courtney and The Victim of Prejudice . Both were controversial in the extreme, attracting the opprobrium of conservative critics. What caused such consternation was not merely their vivid description of the myriad political and social injustices suffered by her female compatriots, but the role of the law in perpetuating such injustices. For much of the last two hundred years Hays has been a largely forgotten figure, her novels occasioning rare interest amongst literary critics and historians, rarer interest still amongst jurists. The purpose of this article is to address this neglect, and to recommend Hays as one of the most intriguing and urgent prophets of modern literary and jurisprudential feminism.

Terrorists and Equivocators

On the Feast of the Invention, 3 May 1606, Father Henry Garnet was strapped to a hurdle and dragged to his place of execution. According to Protestant accounts, he looked guilty and terrified. According to Catholic accounts, he looked innocent and serene. Rather irritatingly, at least for the assembled dignitaries, he refused to confess his treason, and further denied that he was merely equivocating. Then, rejoicing in the fact that he had ‘found my cross’ he embraced the opportunity to die a martyr’s death. It was all rather unsatisfactory, and the fact that a group of suspected Catholic sympathisers ran up and pulled on his legs to make sure that he died whilst being hanged, and so did not suffer the peculiar agonies of being drawn, really quite ruined the day. By the time his heart was being torn out, and his body quartered, the crowds were drifting home, and those left were reported to have been murmuring rather ominously.1 Traitors, particularly Jesuit ones, were supposed to suffer rather more, their spectacular demise a matter of altogether greater celebration. And Garnet was no ordinary Jesuit. He was the Superior of the order of Jesuits in England. God’s ‘chosen people’, of whom Garnet was most definitely not one, imagined themselves living in an ‘age of terror’; terrorised, primarily by men like Garnet, the imagined puppet-master of a vast, if shadowy, network of Jesuit insurgents dedicated to (2007) 1 Law and Humanities 111–131

A love of justice: the legal and political thought of William Godwin

William Godwin was one of the most highly regarded of late English Enlightenment radicals. Yet today, he remains one of the least appreciated, and least understood. The purpose of this article is to present a broad introduction to Godwins legal and political thought, focusing both on his various political essays and novels, as well as his more renowned Enquiry Concerning Political Justice. It will be suggested, in conclusion, that the ‘species of anarchly’ which Godwin espoused resonates very particularly with contemporary debates surrounding the shape of a distinctive postmodern legal humanism.

Introduction: The Written Constitution

The morning of 28 June 1838 began well. Light showers gave way to bright sunshine. Awakened at four by a gunnery salute, the nineteen-year-old Princess Alexandrina Victoria was understandably excited. Eventually, at ten she clambered into the Gold State Coach for the short journey from Buckingham Palace to Westminster Abbey.