Review 1
Dr Sarah Nason (Bangor University)
In Keepers of the Common Good (‘Keepers’), Professor Galligan seeks to study constitutional orders from the point of view of the people, through a social understanding focusing on the relationship between government and the people. At the end of the book, Galligan acknowledges that the journey has been long, full of adventure and full of knowledge, and that sums up my experience of reading it. There are many rich insights. The book is beautifully written, full of metaphors, descriptions, history, philosophy, art and the natural environment, most specifically the concept of a ‘field’ which people can openly cultivate as compared to a ‘fortress’ of strong rule.
Several Shakespearean characters join us along the way as companions in the journey. Whilst these are stories of Kings, Queens, and noblemen, they are also the stories of everyday ordinary people, many of whom have been scripted some of the most iconic lines, and demonstrate the most knowledge, indeed wisdom. And I think this is what Keepers also conveys about the nature of constitutional authority and people’s relationships too it. Keepers uncovers a ‘lower register’ of constitutional discourse, stories under the surface that are compelling and timeless. The ‘lower register’ is ‘lower not in status but arising from below, cultivated among the people expressed in many ways and forms’ (p.197). It is a ‘hinterland of wellbeing’, where the sentiments and dispositions encountered among the people are made plain. The ‘upper register’, in contrast, seeks to preserve the settled social order. This order includes several main landmarks, e.g., agencies, officials, and sites of power, understood through concepts including sovereignty and consent. In the ‘lower register’, the people can stand back from the upper register constitutional discourse of social institutions, uncovering the foundations on which they rest, and, in particular, assess their potential contribution to wellbeing.
I focus here primarily on Part III of Keepers where Galligan discussed several models of constitutional authority confronted by the people at the ‘lower register’. The close of Part III is, as Galligan puts it, not a destination, nor ‘port of perfection’, because there is not such perfection to be found. Instead, the aim is to explain something of the insight and the wisdom of the constitutional field.
The first model of constitutional authority is Princely Rule, and in a way, this acts a foil for the other models. The prince has power to rule firmly and effectively for the common good as judged by himself. He is not a tyrant, his rule is bounded, the relationship with his people being structured by rights and duties, law and convention. He must acquire virtue, and his power is channelled through processes, which include taking counsel. He is aided by a core of officials, and other agencies performing administrative and judicial functions. He relies on support from select sectors of society; the people are expected to obey as the prince knows the common good and is striving to achieve it for them. The people are encouraged to have positive sentiments and dispositions towards such rule, in part cultivated by a paternalistic image of the prince as firm but affectionate. He is diligent in enabling people to make complaints through courts. Here, justice in applying the law and respecting rights is seen an important part of the common good. The prince expects loyalty in return though. On this model the people know little about the workings of government, have few avenues for scrutiny, and no real means of censure. In projecting an image of justice and virtue, and in providing for redress, the prince distinguishes himself from a despot; his rule might be said to be a matter of honour and not of fear.
The image of the prince as constrained to act for the common good, however, breaks down in practice; anyone who has power is led to abuse it. In effect, the agencies of government serve the prince rather than constrain him, and the people obey without question. The prince needs discretionary power, running the risks that he is incapable of ruling well or that he uses powers other than for the common good. The value of counsel can be overstated, with the prince relying on selected advisers; and the professional administration compromises its guidance to him, through self-interest or fear.
This inescapably draws one to consider examples of princely rule in modern society. In Keepers, Professor Galligan discusses princely rule as being seen as suited to dangerous times, and that the prince claims to have some ‘unique insight into the good and the power to achieve it’ (p.253). In recent years strong and apparently princely leaders have become prominent, particularly claiming to possess unique knowledge of how to maximise the good in their respective nations. But such leaders often also exhibit the unconventional behaviour, the defiance of norms and customs, and the privileging of select sectors of society, that Galligan argues will ultimately lead the people to reject princely rule. Nevertheless, the pull towards strong leaders is clear, as is the benefit to princely rule of sustaining a sort of perma-crisis situation, one that does not fully distinguish between exceptional measures and routine government.
Notably, a recent FGS Global Radar poll found that more than one in five people under the age of 45 in the UK agree with the statement: ‘The best system for running a country effectively is a strong leader who doesn’t have to bother with elections’. Part of the explanation here may be in the word ‘effective’, assemblies of decision makers are not seen as effective in making timely decisions, especially during crises. I think also that ‘democracy’ as perceived by the respondents to the FGS poll has not met expectations around the more refined aspects of civility and humanity that Professor Galligan discusses in Keepers. Galligan does not claim to provide a study of democracy, but through an original and grounded understanding of the people and their interaction with constitutional orders, a fresh perspective nevertheless emerges.
For Professor Galligan the people would not ultimately want to cultivate the constitutional field of princely rule, because it is repressive, ‘and brings to mind the image of the fortress, success is invariably partial and never permanent, because repression is never enough to quash the human spirit or stamp out disquiet’ (p.267).
The second proposed model, then, is Self-Rule, where the people decide the main issues of governing and its boundaries. Whilst some functions are delegated to agencies, the people themselves engage at all levels in whatever ways are practicable, and avenues of vigilance are accessible. Agencies and officials must account for their actions and the people have ample means of censure.
This model is founded on both the intrinsic and instrumental value of liberty. There is freedom to enter and engage with the field of governing. The people themselves seek to find a balance between power and liberty. The instabilities are the difficulty of finding a balance, and that sometimes there is none to find, the risks of dither and delay, and difficulties in keeping agencies to purpose, the inevitable rise of leaders and the shift of power from the people to one or a few. The openness to discord and an inherent lack of discipline can render self-rule prone to factionalism, select interests come to dominate. The risk of self-rule ending with the same lack of liberty from whence it began later gives way to a discourse of rule by representatives. As Galligan concludes, however, for most people and in most cases the benefits of engaging in governing seem small as compared to goals more personal, pressing, and within reach. This is a crucial finding, and through harnessing it a deeper understanding of engagement with constitutional authority is expressed.
Professor Galligan proposes that the people have come to realise constitutional authority relies in paring back hopes of perfection. A more modest notion of rule by representatives, is where the people elect leaders with power to govern, and who have a duty to do so for the common good, where the separation of powers contributes to good government and the courts are accessible to the people. The relationship between people and leaders is both defined and confined by elections and the model neither requires nor prescribes a wider role for them. The many create a relationship with the few, and the few act in the name of the many. The justification being that an assembly of representatives can act wisely and decisively, either as agents of the people (acting on their behalf) or as substitutes for them (assuming their identity and power).
The power of the people passes to representatives, the community retains the right to form a common will advancing well-being but entrusts the right to exercise that power to others. The people make no pretence of ruling, but concentrate instead on selecting rulers, influencing their actions, and holding them to account. Galligan explains, however, that around and below the elected leaders are many sites of power each capable of serving one or other aspect of the people’s well-being whether protection, welfare, or enablement. Much of the process of governing requires a deep dive into the discretionary space, where people might, at first look, be seen as having limited scope to engage. But the aim of the people is not to fill the space with standards, rather to watch over it, exert influence over the use of power, and urge explanations and justifications for action, using practical measures of engagement, vigilance, and censure, framed by their powers to withdraw support and relax self-restraint. The keepers have an open role, an unlimited authority to find ways and means of keeping government to the purpose of protecting and advancing their well-being.
The power of election is crucial, but valued principally for the influence it allows people over the course of governing. The people accept the need for balance and expect officials to act for the overall good, they are aware of the discretionary space around sites of power and find ways to watch over it. Acknowledging the processes of governing to be imperfect and the scope for influence limited, the people’s expectations are moderate. Even to achieve a reasonable regard for their well-being across the sites of governing requires determination and effort, tempered with patience and persistence, seasoned with realism.
As an administrative lawyer, I am especially interested in the claim that it is administrative law, including how discretion is handled in practice, which provides evidence to match the keepers model and how it works. In this context, the people are said to share the sentiment of justice and its value, and support concern for due process to ensure accurate outcomes. The keepers expect diverse and competing notions of justice to have been aired, argued and considered while setting standards. Considering the uncertain line between the justice of rules and the justice around the rules, the courts and administrative agencies need guidance in steering a course between them. Professor Galligan says this is assisted by the relationship between courts and other agencies of government, how power is distributed among them, and the contribution of each in achieving the common good. The keepers are said to know the functions of each, how design follows function, and the competing accounts of the judicial process. My only reticence is, are we really convinced that everyday people do know this, or understand it sufficiently well, and are sufficiently empowered, to be vigilant, and/or to engage in censure, or to withdraw their support when the design of administrative functions and processes no longer serves their well-being? In administration, interests compete, and notions of well-being are in contest, making plain the need for the agency’s power to reach down to the foundations of purpose; the process lays the path to an outcome, but the agency settles the destination. But how much is it reasonable to expect people to understand about administrative processes, in order for them to keep those processes to purpose?
According to Professor Galligan then, the keepers model in practice depends on a genuine, albeit modest, capacity to understand and engage in administrative processes. The people remain on the lookout for ways to extend the reach of process by engaging with officials and having influence, by encouraging deliberation, explanation and justification. They are vigilant in watching over the actions of officials within the space, while attentive to forms of censure, from criticism at one end to legal remedies at the other.
The question for the keepers is how to enter the deep space of the constitutional order and have influence within it. Although Galligan stresses that the keepers’ model is not intended to be normative, or prescriptive of how constitutional authority ought to be practiced in the field, I am nevertheless drawn to consider how well our constitutional order fits with the keepers model it in practice, and how it might be improved to better fit.
Key elements supporting the keepers model are the power of election, but also the power of gaze, which is something different, it describes a sense of the pressure leaders feel to account for their actions, their intentions, and their reasons. Other practicalities are a free press, free speech, and the right to public protest. When we also consider access to courts and to administrative agencies, the transparency of administrative processes, the impact of automated decision-making and AI, there are a lot of developments which the keepers might need to be especially vigilant about. Perhaps there is more that could be said in future, not that should have been said here as the book is so rich and full as it is, but maybe a future research agenda on how the keepers model of constitutional authority both is, and could be, reflected in administrative law, and how that might help us meet contemporary challenges.
I have focused here on Part III, but the significant value in the book is the full journey, expanded across each Part and chapter, and the connection back to everyday notions of well-being. Not to grand visions of the common good, but to grounded notions of sentiments and dispositions that really make up day to day living. Akin to Eleanor Roosevelt’s human rights in ‘small places, close to home’, and Tom Ginsburg’s administrative law as ‘where the rubber meets the road for constitutionalism’. A unique contribution of Keepers is how it makes us see the millions of everyday interactions between individuals and officials/agencies/politicians/judges, in a different way. When the grand notion of the people ruling themselves, the parliament as the embodiment of the people, as representative or agent of the people, falls away as a fiction, the keepers occupy the field in a way that is more modest and yet also more empowering than is the case with other models.
Review 2
Professor Francesco Bilancia (Sapienza, University of Rome)
1. Among the many studies on the social foundations of law, and constitutional law in particular, Denis Galligan’s Keepers of the Common Good stands out as a profound inquiry into a central question: What constitutes constitutions? Structured into three parts, Social Foundations, Constitutional Field, and Constitutional Form, the book offers a deeply original perspective on sovereignty and the foundations of law, grounded in historical and social experience. Before delving into this crucial dimension, however, it is worth pausing to reflect on the significance of the book’s title.
For centuries, from Machiavelli to the classical thinkers of ancient Greece, political thought has revolved around various models of governance: Princely Rule, popular sovereignty, and representative democracy, where rulers are, in essence, re-presented by their electors. Yet, Galligan challenges this conventional framework, directing our attention instead to an intellectually revolutionary perspective, which he encapsulates in the phrase The Keepers of the Common Good.
Even a cursory glance at the book’s explanatory note presents a striking proposition: “Keepers of the Common Good provides a social understanding of constitutional authority from the point of view of the people.” Notably, Galligan does not engage with democracy as a central theme, a deliberate choice that renders his analytical and theoretical approach all the more original and thought-provoking. Despite placing the constitutional role of the People at the heart of his inquiry, he makes the intriguing declaration: “Democracy has not been the focus of my analysis.”
Nevertheless, his work does not overlook the mechanisms that have contributed to the erosion of democratic systems. His discussion of plebiscitarianism, plebiscitary democracy, and the dynamics of factionalism offers one of the most incisive analyses of the contemporary crisis facing democratic institutions on a global scale.
At the core of Galligan’s argument lies the question of perspective, how the People observe, scrutinize, and respond to the workings of government. Gaze, vigilance, engagement, sentiment, and opinion emerge as the defining forces shaping constitutional legitimacy. Without anchoring his study in the theoretical debates on democracy, Galligan turns his attention to the People’s role in the current democratic malaise. This, in turn, raises a compelling question: Does the author suggest that the common citizen bears some responsibility for the democratic crisis, or does he merely illuminate its unfolding reality? This issue is inextricably linked to the rise of direct political appeals to the People and the consequent weakening of constitutional constraints, what Galligan aptly describes as “crossing the constitutional boundary.”
2. Returning to the gaze of the People, Galligan writes: “The people’s being able to gaze on leaders is a form of engagement, subtle but potentially effective, a form the leader finds hard to escape. Vigilance…” Here, vigilance takes centre stage. The focus is not on whether the People are, or ever have been, the foundation of constitutional authority, but rather on their evolving relationship with government, shaped by historical transformations and shifting systems of governance.
This relationship has undergone a profound evolution: from submission to acquiescence; from the mere power to elect and dismiss rulers to a more nuanced ability to influence the few through sentiment and disposition; then through opinion, engagement, vigilance, scrutiny, and ultimately, censure. Yet, this influence has always been tempered by a measure of self-restraint, carefully avoiding the threshold of outright rebellion. As Galligan asserts: “If government is to serve the people’s well-being, the people need to be on the inside, able to exert influence on rule, keep it under watch, and hold it to account.”
This, I believe, encapsulates the central theoretical argument of the book: “The people are (may we say “should be”?) the keepers of the common good who watch over those with power to make sure it be used properly” Their role is not to govern but to ensure that government remains aligned with its purpose. The fundamental question at stake, in my view, is this: How can the constitutional order provide governance that is both effective and responsive to the People? This enduring dilemma finds in Galligan’s work a remarkably clarifying response.
The originality of this book also lies in its radical reassessment of traditional concepts such as sovereignty and representation, which Galligan boldly qualifies as fictions. His approach seamlessly integrates multiple disciplines, History, Philosophy, Political Theory, and Law, through a socio-legal lens, while also drawing on literature, notably the works of Carlo Levi and Shakespeare, to enrich its depth and perspective.
3. From this multidimensional approach, another fundamental issue emerges: the role of language as a methodological tool. Much like Wittgenstein in his Tractatus Logico-Philosophicus, Denis Galligan constructs a theory of language, more precisely, a theory of meaning, to explore the connections between constitutional questions and the conceptual use of specific terms, categories, and legal constructs. In doing so, he develops and employs a distinctive discourse on constitutional authority, one that situates the People not merely in relation to it but, I would argue, within it. His aim is to grapple with the place of the People in constitutional theory, particularly after identifying sovereignty and representation as, to some extent, fictitious concepts.
This, I believe, is a crucial point: if something remains undiscovered, something real, yet unarticulated within traditional legal and political frameworks, then it must first be reworded, and only after being unearthed and examined, spoken into existence. This necessity of linguistic and conceptual innovation is, in my view, what makes Galligan’s book such an important, original, and path-breaking contribution to legal history, social theory, and constitutional thought.
Let us, then, turn our attention for a moment to the lexicon of this new constitutional language, where each term invites broad reflection and debate: Form and Substance, and the balance between them; People, Constitution, Authority; Opinion, Sentiment, Disposition, Taking Action, Purpose, Interests, Field, Power.
While I will set aside Galligan’s key constructs, his concept of the Constitutional Field and the Keepers Model, as they deserve their own dedicated analysis, I would instead like to highlight two particularly thought-provoking elements in his work, both of which offer further insight into the ways the People may enter the constitutional order.
The first is his reference to the Peasants of Gagliano and their estrangement from the Italian State. As is widely known, this reference is drawn from Christ Stopped at Eboli, Carlo Levi’s seminal book, published in 1945 but recounting his exile in Aliano, Basilicata, during the years 1935–1936, under Fascist rule. The title itself is of profound significance to Galligan’s argument. Although the narrative unfolds not in Eboli, but in Aliano, deep in the country’s impoverished southern interior, Eboli represents a symbolic frontier. It is where roads and railways ceased, leaving travellers to venture onward through the remote and desolate landscapes of Basilicata. In Levi’s account, Christ is a metaphor for civilization, which, in the perception of the local people, had stopped far to the north, never reaching Gagliano (the fictional name for Aliano).
Levi records the words of the Gagliano peasants:
“We are not Christians,” they say. “Christ stopped at Eboli.”
In their dialect, Christian simply means human being. They continue:
“Christ has really stopped in Eboli, where the road and the train abandon the shore of Salerno and the seaside, and turn through the desolating lands of Lucania[1]”, “Christ has never arrived here, (…) nor the Reason, or History (…) not even the Romans, the Greeks (…) no one (…) not even the western state’s theocracy (…) if not as a conqueror, or an enemy” (Christ Stopped at Eboli, Italian edition, Einaudi, Torino, 1990, pp. 3–4).
This passage encapsulates the historical and social conditions of a population that viewed the Italian State, unified only in 1861, as a distant, alien force, if not an outright adversary. These people had no political opinions, no engagement in civic life, and not even the impulse to rebel. Instead, they exhibited a profound indifference, an absence of interest, a total detachment.
For Galligan, this represents the negative model, the antithesis of the Keepers of the Common Good. The peasants of Gagliano stand on the opposite end of the social spectrum, their condition marked by marginalization: first economic, then social, and ultimately political. Carlo Levi’s Christ Stopped at Eboli, a historical novel in its own right, remains one of the foundational texts for analyzing Italy’s North-South divide, the so-called Questione Meridionale. It serves as a powerful metaphor for the exclusion of an entire segment of the nation’s territory and population from the institutions of the State.
4. Now, let us turn to the second issue: the historical context of David Hume and Giambattista Vico’s thought. After grappling with Hobbes’s theory of sovereignty (Leviathan, mid-17th century), scholars have often examined the apparent contradictions in Hume’s political philosophy a century later. Yet, the brilliance and originality of Hume’s thought lie not in contradictions within his own reasoning, but in his engagement with the contradictions of his time, the tensions of a rapidly transforming socio-political landscape.
Hume wrote during a pivotal transition: from a world governed by well-defined social orders, each with its own established structures and stable rules, to an emerging reality characterized not by outright disorder, but by what might be termed a new order, one in which individuals, for the first time, were forced to carve out their own place in society. Here, personal beliefs, what we might now call opinions, took on unprecedented significance. A new social system was taking shape, one in which personal and group relationships played a crucial role in generating opinion, which, in turn, became an instrument of power.
Despite its profound importance, Hume’s conception of opinion in political thought remains relatively underexplored. Few studies have examined the role opinion plays in his political theory, which is precisely why Denis Galligan’s work is so valuable. He offers a theory of constitutional order in the wake of the English institutional crisis of 1646–1648, a period marked more by disorder than by the establishment of a new order. This was an era of dangerous instability, where sovereignty itself was in question, and the Glorious Revolution was still on the horizon.
It is worth recalling that Hume did not live to witness the American and French Revolutions, yet he was able to anticipate and analyze the conditions for a world of liberty, individual liberty, emerging from social and political turbulence. He saw a world in transition, undergoing a profound philosophical and political transformation. This was not a moment of rupture but of evolution, a gradual yet radical process through which a new political and institutional order was being forged. Hume’s writings not only reflect this transformation but actively contribute to its theoretical foundations.
A Brief Reflection on Giambattista Vico
To conclude these notes, a few remarks on Vico’s thought. Galligan draws our attention to the essential relationship between reality and its meaning, how meaning is shaped through historical reconstruction and narrative. In this context, modernity is understood not in terms of religious transcendence, but as a shift toward immanence, toward a society no longer governed by divine authority but by human agency. This shift marks a fundamental separation between knowledge and power, making way for an understanding of reality grounded in individual potential rather than in the official, state-sanctioned narrative.
Modernity, then, begins when humanity recognizes that gods and divinity are indifferent to the human condition. Once again, we find ourselves at a crucial turning point: a world in which individuality and opinion gain significance precisely because knowledge itself has entered an ontological crisis. In legal thought, this transformation parallels the weakening of formalism, a theme particularly relevant given that Vico’s primary focus was Roman Law.
One final point: La Scienza Nuova, Vico’s magnum opus (published in 1725, 1730, and 1744), was written not in Latin, the traditional language of academia, but in Italian, the volgare. This linguistic shift reinforced the growing divide between philosophy and philology, a point Galligan astutely underscores in his analysis. It also speaks to the broader centrality of speech, and the emergence of a new language of science.
Closing Thoughts
This, I believe, captures the essence of Denis Galligan’s analysis and theoretical assessment, at once succinct and profound. Through his work, we embark on a journey through historical and political transformation, guided by an evolving semantic and analytical framework. His study is not merely an inquiry into legal conceptualization; it is an intellectual expedition that seamlessly weaves together history, philosophy, social and legal theory, and literature, offering a rich and multidimensional perspective on the ever-evolving nature of constitutional thought. (Edited by Zichen Hu)
[1] Lucania is the historic name for the Italian region that is now known as Basilicata.