Must Politics Rest on Law?

Abstract This chapter challenges the critique of political constitutionalism as being committed to a self-defeating view that disagreement goes ‘all the way down’, committing them to an ‘infinite regress’ with no basis for arguing for the superiority of political over legal processes. Drawing on Bernard Williams’s account of realism, this chapter contends that political constitutionalism merely insists that politics goes all the way down, because any juridical order must first provide an answer to what Williams called ‘the first political question’ by offering a stable and reliable form of political authority. Moreover, any satisfactory response to this question must meet what Williams termed the ‘Basic Legitimation Demand’ by offering a process that acknowledges the need to frame such authority in a non-coercive or authoritarian manner by recognizing the disagreements and conflicts that give rise to the necessity for politics in the first place. Because politics goes all the way down, the authority and legitimacy of even ‘legal constitutionalist’ mechanisms must be political and processual rather than moral. Rejecting the need for an impartial ‘Archimedean point’ capable of determining which set of political processes are the most just, the chapter argues that constitutional legitimacy must be rooted in historically contingent, ongoing public negotiation of a kind favoured by political constitutionalists in which politics is constitutive and not merely constituted by law.