Towards a Republican Revival?^†

There is today a widespread belief that the British constitution is in a state of flux. If the constitution is simply ‘what happens’,¹ then this may not be a matter of significant concern. But many constitutional scholars now seem convinced that a fundamental juristic shift is in the offing. This belief is, for example, implicit in Laws LJ’s recent statement that: ‘In its present state of evolution, the British system may be said to stand at an intermediate stage between parliamentary supremacy and constitutional supremacy’.² The general perception that we are now within a period of constitutional transition may be one reason for the apparent resurgence of interest in questions of theory.³ It may, more importantly, also explain why there is a significant trade in novel interpretations of the basic character of the British constitution.

Of these innovative restatements, the most influential would appear to be the claims of ‘common law constitutionalism’. This school of legal thought argues that the common law is a repository of the basic rules of governmental authority, that these common law rules can be understood to provide a framework of rights that operate to protect liberty, and that the judiciary is now becoming conscious of its duty to rework constitutional fundamentals by fully explicating the meaning of these rules in legal-rational terms.⁴ This is not the occasion for subjecting common law constitutionalism to general critical assessment.⁵ But its recent reinvigoration⁶ provides the essential context for understanding the significance of Adam Tomkins’ short and provocative book, the objective of which is directly to challenge the claims of common law constitutionalism and to argue the case that the British constitution rests on republican rather than liberal foundations.⁷ Being critical of the growing hegemony of common law constitutionalism, which he labels …