The American Journal of Jurisprudence, 2024, 69, 189–204

https://doi.org/10.1093/ajj/auae019
Advance access publication 9 November 2024
Article

What’s The Point of

Constitutional Monarchy?
N. W. Barber�
Professor of Constitutional Law and Theory and Fellow, Trinity College, University of Oxford.

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Email: nick.barber@trinity.ox.ac.uk

ABSTRACT
The article examines the point of constitutional monarchy as a form of leadership. It considers five func­
tions of leadership and examines the extent to which constitutional monarchy fits these functions. It con­
cludes the best argument for monarchy is found in the role of leader as exemplar, the capacity to act as
prototypical group member. As such, the monarch exemplifies the values of state membership, acting as a
point of reference and reassurance. Moreover, as the monarch can embody a range of differing concep­
tions of prototypicality, she can possess different meanings for different state members, providing a shared
point of identification for those who would otherwise disagree. However, the mode of selection of the
monarch is problematic, making it improbable officeholders will invariably possess the capacity to fulfil
the role and bringing moral costs. In consequence, monarchy is a time-limited constitutional form, a tran­
sitional mode of leadership.

K E Y W O R D S : Political philosophy, Monarchy, Constitutionalism

I. INTRODUCTION
This is an article about a particular type of leadership, that of constitutional monarchy. Though
a great deal has been written about the powers of monarchy, far less has been written about its
point, that is, the function or functions it plays within the constitution. The article begins by pre­
senting constitutional monarchy as an ideal-type, identifying the characteristic structures of the
institution that distinguish it from other constitutional forms. The second part of the article
then identifies the possible functions of monarchy, asking what, given its structure, its role
within the constitution might be. The article concludes by assessing the attractions of monarchy
and argues that whilst monarchy may sometimes play a valuable role within the constitution, its
structures and functions are in tension. The attractions of monarchy are contingent on the char­
acter of the person occupying the role, but the selection processes attached to the institution are
such that it is improbable that the office will be consistently filled by someone capable of meet­
ing its demands. When monarchy is working well, it is an asset to the state, but, in contrast to
some other forms of leadership, it is, despite its longevity, a necessarily time-limited constitu­
tional form, a transitional institution which will eventually give way to some other type of leader­
ship institution.

�With thanks to Robert Hazell, Dean Knight, Hannah Dongsun Lee, Bob Morris, Rebecca Probert, and Ewan Smith.

© The Author(s) 2024. Published by Oxford University Press on behalf of University of Notre Dame.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs licence
(https://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial reproduction and distribution of the work, in
any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-
use, please contact journals.permissions@oup.com
190 · The American Journal of Jurisprudence, 2024, Vol. 69, No. 3

II. CONSTITUTIONAL MONARCHY AS AN IDEAL-TYPE

This article is concerned with the type of monarchy found in several states including the United
Kingdom, Spain, the Netherlands, Sweden, and Norway.1 Though these institutions differ in their
details, they share a broad range of features that permit us to describe an ideal-type of constitu­
tional monarchy, a model which captures the significant features of that office whilst acknowledg­
ing that its real-world instantiations will occasionally depart from the model, sometimes in
significant ways. Given the focus of this article is on the functions of constitutional monarchy
rather than an examination of its various manifestations, so is not an exercise in comparative con­
stitutional law, this ideal-type can be sketched relatively broadly. Constitutional monarchy has
four groups of attributes. First, it is a personal office, one held by an individual and, moreover,
held by virtue of the identity of the office-holder. Second, it is a form of leadership, with the mon­

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arch possessing genuine, if limited, power over others within the constitutional order. Third, the
office has symbolic significance, the monarch is identified by the constitution as head of state and
is commonly identified as head of various institutions within that state. Finally, the office is one
half of a paired form of constitutional leadership, with the monarch partnered with a prime minis­
ter, a second leader, who possesses an indirect democratic mandate.2 Each of these four features
requires further examination.

A. Monarchy as a Personal Office

Monarchy is a constitutional institution, established by the rules of the constitutional order. It falls
within a subset of constitutional institutions, constitutional offices, which are institutions occupied
by a single person. As such, it is similar in form to other offices such as citizen, judge, or legislator.
Unlike these offices, though, there is only ever one monarch, and only one office of this type can
exist in the constitution at a given point in time. There are other singular offices in the constitu­
tion, such as, for instance, prime minister, lord chief justice, or head of the Basingstoke Council
taxi licensing team, but, in contrast with these offices, the monarch is a personal office in a further
sense, in that it is held by virtue of the identity of the individual. Whilst there have been, and are,
examples of monarchies that are based on election, the type of monarchy discussed in this article
is hereditary, one conferred by right of birth.3 As such, the office is never empty. Whilst other con­
stitutional offices could, in principle at least, stand vacant for a time, there is always a monarch,
though the line of secession may be disputed and we might not be sure who occupies the office.
Constitutional monarchies present themselves as democracies and within democracies the exis­
tence of hereditary offices is very unusual. Though there are some other offices in European states
that are hereditary, these are normally little more than constitutional relics, titles greatly enjoyed
by their possessors but of no real constitutional moment. Monarchy, in contrast, is a hereditary
personal office of great significance.
The oddity of a hereditary constitutional office is worth emphasizing. Though it is law that
defines the entitlement to occupy the office, the underlying rationale of the law presents this enti­
tlement as grounded in a bloodline, the monarch holds office because of their parentage. Most
officeholders in democratic states can be removed from office without their consent. The mon­
arch, in contrast, holds office until they die, become incapacitated, or choose to abdicate. This can
change in exceptional circumstances. In a constitutional monarchy the legislature could alter the
rules regulating the monarch to enable their removal, though in some monarchies such legislation
would, under the existing rules of the system, require the assent of the monarch.4 In addition, as
Edward VIII and King Carlos I discovered, on rare occasions popular pressure is sufficient to trig­
ger abdication. Absent these unusual circumstances, it is for the monarch to decide when and if
1
This section is indebted to The Role of Monarchy in Modern Democracy: European Monarchies Compared, ed. Robert Hazell &
Bob Morris (Oxford: Hart Publishing, 2020), which provides a detailed survey of monarchies of this type.
2
In Spain the office that would commonly be described as a prime ministership is labelled a presidency.
3
Though see, on the echoes of election in the English monarchy, Rodney Brazier, “A British Republic,” Cambridge Law Journal 62
(2002): 352-5.
4
The capacity of the legislature to eject the monarch is often unclear. Even if, under the existing legal structures, the King’s assent
was required for legislation ejecting him from office, it is possible that legislation that lacked such assent would still be treated as valid
within the system in a time of crisis.
 Constitutional Monarchy · 191

she exits office. A little like a piece of private property, monarchy is held at the discretion of its
possessor, so long as that possessor retains the capacity to make use of it.

B. The Power of the Monarch

As well as being personal, the office brings discretionary power; it is a form of leadership, and not
a mere honorific. In terms of legal powers, monarchs commonly, though not invariably, possess
the right to veto legislation, to appoint the prime minister and members of the cabinet, and to
summon and dissolve the legislature.5 Of course, in a constitutional monarchy the monarch’s ca­
pacity to exercise these powers is radically curtailed. It is, for example, vanishingly rare for a con­
temporary constitutional monarch to veto legislation, and their involvement in the appointment of
prime ministers is normally limited. But even if these legal powers are heavily constrained by con­

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vention and political pressure, their bare existence renders them of constitutional significance. In
part, this is because of the possibility of constitutional crisis, where, because of these legal powers,
the monarch is put in a position where she is either compelled to intervene or put in a position
where it is arguable that she ought to intervene. For example, the monarch might be compelled to
intervene when she is required to appoint a prime minister, and the normal political processes that
generate a candidate for her to appoint have failed.6 Then the monarch must either pick between
possible candidates, or appoint someone to structure the political processes to generate a candi­
date. In either case, the monarch is given some input into the choice of prime minister. Even ap­
parently clear conventions can struggle to regulate the conduct of the monarch at the margins,
especially when there is plausible disagreement over the content of those conventions. In the
United Kingdom, for instance, there is disagreement over the duty of the King if advised to veto a
bill by the Prime Minister.7 Some say the King should always follow advice, and must veto, others
say the point of the convention requiring the King to follow prime ministerial advice is to protect
the position of Parliament in the constitution, and, in consequence, he should refuse.8 Whatever is
thought of the merits of these claims, the mere existence of the debate means that neutrality is not
an option for the monarch.9 At a moment of crisis the King would have to choose between the ri­
val views. And finally, of course, the bare fact that a monarch possesses a legal power gives them a
tool they can use. The risk they might try to exercise the power, even the possibility that they will
consider its exercise, can shape the behavior of others in the system.10 Robert Hazell, and others,
have written of the United Kingdom’s monarch as playing a “long-stop” role in the constitution,
able to act in extreme situations.11 That they can act in these situations, or even that they can plau­
sibly threaten to act, confers discretionary power upon the monarch, and, given that it is for the
monarch to decide when such situations have arisen, the “exceptional” pushes back into
the ordinary.
Discussion of the legal powers of the monarch slides into a discussion of their soft power, the
capacity of the monarch to influence and persuade, even when lacking the power to command.12
Some, perhaps much, of the soft power of the monarch depends on the character of the individual
holding the office and their ability to harness respect and influence, but the legal structures of
monarchy protect and foster this influence, ensuring that the office comes with some capacity to
shape state policy and decisions.13 In part, this is due to the legal powers discussed in the previous
5
Hazell & Morris, ch. 3. For the definitive discussion of the powers of the monarch in Westminster systems, see Anne Twomey,
The Veiled Sceptre: Reserved Powers of Heads of State in Westminster Systems (Cambridge: Cambridge University Press, 2018).
6
Twomey, The Veiled Sceptre, ch. 3.
7
Ibid., ch. 9; Adam Tomkins, Public Law (Oxford: Oxford University Press, 2003), 63-4; Robert Blackburn, “The Royal Assent to
Legislation and a Monarch’s Fundamental Human Rights,” Public Law [2003]: 205-210; Rodney Brazier, “Royal Assent to
Legislation,” Law Quarterly Review 129 (2013): 184-204.
8
Robert Hazell, “Constitutional Functions of the Monarchy in the UK,” in Hazell & Morris, 24-6; Robert Hazell and Timothy
Foot, Executive Power: The Prerogative, Past, Present, and Future (Oxford: Oxford University Press, 2022), ch. 6.
9
Robert Blackburn, “Monarchy and the Personal Prerogatives,” Public Law [2004]: 546-63.
10
Luc Heuschling, “Luxembourg: Grand Duke Henri’s Refusal, in 2008, to Sign the Bill Legalising Euthanasia,” in Hazell &
Morris, 52-7.
11
Helle Krunke, “The Monarch’s Constitutional Functions in Denmark,” in Hazell & Morris, 26; Brazier, “A British
Republic,” 361.
12
Walter Bagehot, The English Constitution, ed. Richard Crossman (London: Watts & Co 1964), 111; Rodney Brazier,
Constitutional Practice 3d ed. (Oxford: Oxford University Press, 1999), 184-9.
13
Asif Hameed, “The Monarchy and Politics,” Public Law [2016]: 401-409; Tomkins, Public Law, 70-72.
192 · The American Journal of Jurisprudence, 2024, Vol. 69, No. 3

paragraph: even if not exercised, these powers still shape the interaction of the monarch and
others in the constitution.14 But it is also common for the monarch to be given protected access
to the prime minister and other senior figures in government.15 Whether they like it or not, and
one minister robustly described his meetings with Queen Beatrix as “a nuisance,”16 these audien­
ces are often obligatory, sometimes with the obligation grounded in law rather than convention.
The monarch’s soft power can be significant and extensive.

C. The Ceremonial Roles of the Monarch

The third aspect of constitutional monarchy, its symbolic significance, is the hardest to pin down
but might be of greatest importance. The monarch is standardly identified as Head of State, and
acts as a figurehead for the state both domestically and internationally. In addition, the monarch is

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commonly identified as head of branches within the state, or is the object of loyalty oaths required
of state officials. For example, in the United Kingdom the monarch is the commander-in-chief of
the armed forces, whilst judges, members of parliament, and police officers in England, Wales, and
Scotland all swear allegiance to the King. The symbolism of monarchy is an active form of symbol­
ism, one buttressed by ceremony and ritual. The monarch is presented as the focal point for the
state and many state institutions, and the parades, services, investitures, and garden parties
attended by the monarch are important parts of the office.

D. Monarchy as Paired Leadership

Finally, constitutional monarchy is a paired form of leadership. A curiosity of leadership at the top
of institutions is how often it is shared between two people—and, indeed, how rarely it is shared
between more people than this. For instance, companies and charities often have a chairperson
and a chief executive officer, and even in non-monarchical states leadership is often split between
a president and a chancellor. Where such pairing occurs, it is reasonable to suppose that these
leaders play different roles, not just in the sense of having different legal powers or jurisdictions,
but meeting different leadership needs within the state. The combination of the two leaders may,
it might be hoped, produce more than the sum of its parts. The monarch is partnered by a prime
minister, a very different form of leadership office. Whereas the monarch’s office is hereditary, the
prime minister’s office has a democratic mandate, mediated through the legislature. Partly as a re­
sult, prime ministers tend to be more transitory than monarchs, a monarch’s reign often spans
multiple prime ministers. By having such radically different modes of appointment, one that has
clear implications for the relative legitimacy and powers of the offices, the risk of conflict, inherent
in paired leadership models, is mitigated.

E. A Note on Governors-General
Those constitutional monarchies that possess a governor-general, such as Australia, Canada, Jamaica,
and New Zealand, provide a variant form of constitutional monarchy. The powers of governors-
general are, in broad terms, those of the monarch they represent, but their mode of appointment is rad­
ically different. Though nominally appointed by the monarch, governors-general are normally chosen
by the governments of their states, and, though it is not invariably the case, the office is often held for a
limited term. In these systems the monarch, back in London, becomes a remote figure, little more than
a cypher, and the paired leadership characteristic of constitutional monarchies is between the
governor-general and prime minister. In the next section the possible functions of a constitutional mon­
arch are discussed. This discussion does not directly extend to systems which include governors-
general. That the office of governor-general is grounded in a political appointment alters the types of
functions the governor-general could play within the constitution, and the range of constitutional bal­
ances that might usefully exist between the governor-general and prime minister. For instance, the ap­
pointment process opens the possibility that the governor-general will have been selected for the skills
they bring to the constitution. In addition, this process confers a political legitimacy on the governor-
general that a constitutional monarch lacks: governors-general are, if indirectly, the products of a
14
Paul Bovend’Eert, “The Netherlands: From Personal Regime to Limited Role,” in Hazell & Morris, 39.
15
Hazell & Morris, ch. 4.
16
Rudy Andeweg, “Political Functions of the Dutch Monarchy,” in Hazell & Morris, 69.
 Constitutional Monarchy · 193

democratic process. Indeed, it could be argued that in these systems the monarch, as a constitutional
figure, is in the process of atrophy, with a constitutional form emerging akin to a semi-presidential sys­
tem, though without the direct election of the head of state.17 It is possible that this, or something like
it, could prove a durable constitutional model.

III. THE FUNCTIONS OF CONSTITUTIONAL MONARCHY

The term “function” is a loaded one in the social sciences. It is sometimes used as a way of explain­
ing the emergence of an institution or practice, and provides a form of causal claim, one which
seeks to explain why the institution exists within a community.18 In this article, in contrast,
“function” is equated with point, that is, the function of an institution is to be found in the need

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which it satisfies of the community of which it is a part. Consequently, the article is seeking to
identify the justifications for monarchy rather than to explain its operation and existence. This un­
derstanding of function is tied to legitimacy. When we have reason to want to see this need satis­
fied, and when the institution is satisfying the need, this gives us a reason, though not necessarily a
conclusive one, to support the institution, support which includes accepting its authority over us.
It may be that this also supplies an explanation of the emergence or existence of the institution—
perhaps people have, in the past, recognized that it meets this need and have supported it for this
reason—but this is not necessarily the case. When we examine constitutional monarchy, the expla­
nation of its emergence and flourishing may be found in the function or functions it currently
plays in the constitution, but need not be. Constitutional monarchy could have emerged for rea­
sons radically disconnected from those we have for supporting it in its present form.
The previous section presented monarchy as a particular type of constitutional leadership, one with
real, if limited, discretionary power over others within the constitution. This section turns to the possi­
ble functions that leaders can play within constitutions and examines the extent to which the structures
of monarchy, discussed in the previous section, map on to these functions. These functions are not ex­
clusive, and most forms of leadership, including monarchy, engage multiple functions.

A. Technical Capacity
The most obvious reason for leadership within a group is that the leader brings technical capacity,
that she possesses skills that help the group achieve its goals. This may be direct, where the leader
is the most skilled person in the group and the others should follow her lead, or indirect, where
the skill of the leader lies in the coordination of group members, helping them work together suc­
cessfully. This is a form of transactional leadership: followers get a benefit from the actions and
decisions of their leader, and this benefit grounds an argument for their acceptance of leadership,
the leader’s commands should be accepted, and their occupancy of office should be supported, be­
cause those within the group are more likely to achieve their goals through the leader than through
their own decision-making. It is what Joseph Raz styled, perhaps overly expansively, the “normal”
justification for authority: others in the group should accept the commands of the leader because,
by so doing, they are more likely to act on the reasons that apply to them than if they relied upon
their own judgement.19 Sometimes this model of leadership is used to defend the leaders of auto­
cratic states. In a bold argument for the legitimacy of China’s leadership, Daniel Bell argues that
China’s political system produces leaders who are technically competent administrators, and who
enjoy legitimacy for this reason.20 Under this model of leadership, the process of selection should
tally with the technical skills we hope the leader will possess. Exams and assessment are the most
obvious modes of selection for leaders of this type, and, indeed, these processes are used within
the Chinese system.21 For some technical skills it could be argued that elections, both nationally
and within political parties, provide an appropriate selection process. Max Weber argued that the
17
Dean Knight, “Patriating our Head of State: A Simpler Path?,” in Reconstituting the Constitution, ed. Caroline Morris, Jonathan
Boston, and Petra Butler (London: Springer, 2011)
18
Alexander Rosenberg and Tyler Curtain, Philosophy of Social Science, 5th ed. (London: Routledge, 2015), ch. 10.
19
Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press 1986), 53-7.
20
Daniel Bell, The China Model (Princeton, NJ: Princeton University Press, 2015). See also Frank Dik€otter, Dictators (London:
Bloomsbury, 2019), 130-3.
21
Bell, The China Model, 168-175.
194 · The American Journal of Jurisprudence, 2024, Vol. 69, No. 3

rough and tumble of British parliamentary politics provided a good testing ground for political
leaders: those who rose to the top were able to communicate effectively and work constructively
within committees.22 These leaders possessed the technical political skills needed to marshal polit­
ical power, drawing people together behind the policies of the state.
Arguments from technical capacity play an important part in the justification of many types of
state leadership, but their significance for the discussion of constitutional monarchy is ambiguous.
An oddity in discussion of constitutional monarchy is that it is commonly argued, sometimes in
the space of a few pages, both that the monarch is politically inert, so there is no democratic prob­
lem with their existence, and that they possess technical skills of some sort, so we should be glad
of their input into the constitution.23 Looking back at our ideal-type of monarchy, many elements
of this model imply a need for technical skill. Most obviously, the areas of discretion accorded to

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the monarch are ones which require some type of technical expertise to exercise successfully. Even
the claim that the monarch has a “longstop” constitutional function in moments of crisis requires
some level of skill, both in terms of their identifying the crisis and being competent to resolve it.24
And the expectation that the monarch will engage with political leaders, through their regular
meetings the prime minister and others, implies they will make some sort of contribution to the
governance of the state. Robert Hazell moots that that monarch might play a ‘mentoring’ function
in these meetings, acting as a sort of coach for the political leaders with whom they are paired.25
For these meetings to have a point, the monarch must bring to them something of value, asking
the right questions to enable her ministers to reflect on and develop their policies. Such a coaching
role may require technical expertise of a different type to that found in relationships in which a su­
perior conveys practical knowledge to a junior, but it is a form of technical expertise none the less,
with the monarch needing to possess sufficient background knowledge in the relevant area to act
as a mentor, and the educative skills necessary to enable them to help their mentees develop their
own thoughts on the topic.
Older arguments for monarchy were grounded in strong religious claims: the monarch was se­
lected by God or, more ambitiously still, was an emanation of God on earth.26 If either of these
arguments were accepted, the monarch might, indeed, be relied upon to possess the technical skills
needed to acquit their office successfully.27 God would have ensured that they possessed the skills
to tackle the tasks they faced. Such religious arguments are no longer widely persuasive, and few, if
any, would accept the monarch is likely to possess technical skills because of God’s intervention in
our affairs. Given that monarchy is hereditary, the chances of the monarch possessing a set of tech­
nical skills is likely to be roughly the same as any other member of the state, perhaps slightly
higher than the median, given the effort and expense invested in the fledgling monarch’s educa­
tion. It is likely, indeed inevitable, that, over time, monarchs will be appointed who lack the techni­
cal capacity to successfully perform this function. If we want a leader to exhibit technical capacity,
the hereditary principle is a very poor mode of selection. As a response to this, it might be con­
tended that the monarch herself does not need to possess these skills, it is enough that those
around her have these capacities and can advise her. But this just pushes the need for technical ca­
pacity back one step: now the monarch’s technical skill rests in identifying competent advisors and
processing their guidance successfully. Monarchs are rarely short of advice.

B. Decisional Capacity
A second leadership function is raw decisional power, the capacity to make a choice, and, by
choosing, to end discussion and dispute within the state. Whereas technical capacity related to the
22
Max Weber, “The Profession and Vocation of Politics,” in Max Weber, Political Writings, ed. Peter Lassman and Ronald Speirs
(Cambridge: Cambridge University Press, 1994), 342-4, see also 324-5.
23
Helle Krunke, “Day-to-Day Functions of the Monarch in Denmark,” in Hazell & Morris, 78; Robert Hazell, “Day-to-Day
Functions of the Monarch in the UK,” in Hazell &Morris, 80-82.
24
See also Helle Krunke’s discussion of the monarch as the guardian of democracy: Helle Krunke, “Modern Forms of
Legitimisation of the Monarchy,” in Hazell & Morris, 216-7.
25
Robert Hazell and Bob Morris, “Towards a New Theory of European Monarchy,” in Hazell & Morris, 271.
26
King James I, “Basilicon Doron,” in King James I, Political Writings, ed. Johann P. Sommerville, (Cambridge: Cambridge
University Press, 1994), 12-13; Ernst Kantorowicz, The King’s Two Bodies (Princeton, NJ: Princeton University Press, 1957), ch. 3.
27
Even a wicked king was divinely chosen for a reason: King James I, “The Trew Law of Free Monarchies” in Political
Writings,78-9.
 Constitutional Monarchy · 195

special expertise possessed by the leader, decisional capacity requires no special knowledge or skill,
merely the possession of a power. Indeed, taken by itself, under this model of leadership it does
not matter what is decided, all that matters is that an effective decision is taken. This decisional ca­
pacity was central to Thomas Hobbes’s account of the state and the sovereign. The existence of
Hobbes’s sovereign was justified by its capacity to make political decisions that were effective; al­
most irrespective of the substance of those decisions, what mattered was that the sovereign
brought order, and, according to Hobbes, this order was preferable to the anarchy of the state of
nature.28 In Carl Schmitt’s writings, which drew on Hobbes’s work, the connection between deci­
sional capacity and leadership is tighter still.29 Schmitt’s sovereign can remain in the background
but steps forward at times of crisis to define the boundaries of state membership. The sovereign
has the capacity to answer what was, for Schmitt, the foundational political question of the state,

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drawing the line between friend and enemy.30 Sometimes Schmitt claimed, following Hobbes, that
institutions can possess sovereignty, that, for example, the capacity could be vested in a legislature,
but the process by which Schmitt’s sovereign is identified cuts against this.31 Schmitt’s sovereign
emerges at a moment of crisis, but, if an institution played the role of sovereign, what if the crisis
then infects that institution? Then the institution would fragment, revealing a smaller group or
sub-institution that could make the decision, and the fragmentation could continue, moving down­
wards, until finally a “sovereign” individual is revealed, the irreducible unit at which a decision can
be made. Schmitt’s account of sovereignty is, then, an account of leadership, one which is centered
on the claimed necessity of an individual with decisional capacity for the existence of the state.
The persuasiveness of Schmitt’s account of the constitution can be put to one side for now.32
What it does provide, though, is a leadership model that turns on the bare capacity to decide. The
utility of this decisional capacity could extend beyond the foundational question identified by
Schmitt. Whenever we find ourselves in constitutional deadlock, when the rules and institutions of
the constitutional system are unable to resolve a dispute, the existence of a person able to step in
and resolve this deadlock is of value to the state. The legitimacy of this form of leadership is
grounded in a combination of necessity and ability, in contrast to the technical skill in the previous
section. Once more, it is a form of transactional leadership. We have reason to support that person
in a position of leadership and to accept the decision that is made simply because we need a deci­
sion to be taken, and this person can take it.
It might be that, occasionally, monarchs exercise a decisional role when situations arise in which
normally effective processes fail to produce an outcome.33 Perhaps, for example, when the parties
in the legislature are unable to identify a candidate for prime minister and the current holder of
the office declines to continue to serve, or an appointment panel for a senior role is deadlocked. It
is, though, hard to think of examples of where we would want the monarch to play this role. Most
of the possible cases, when looked at closely, collapse back into the previous section. We do not
simply want the monarch to decide, to play the role of a flipped coin, but, rather, we want the
monarch to resolve the crisis in a skillful way, either by helping restore the effectiveness of the con­
stitutional process, making it work once more, or by achieving the outcome that the process ought
to have reached. In those very rare situations in which what is needed really is just a decision, and
the merits of the options decided between are irrelevant, the capacity of the monarch to undertake
this task will depend on their political capital, the extent to which their decisions will be accepted
within the constitutional community. Where the constitution explicitly confers a power on the
monarch, such as the power to appoint the prime minister, it is likely, though not inevitable, that
28
Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1991), 117-121.
29
John MacCormick, “Teaching in Vain: Carl Schmitt, Thomas Hobbes and the Theory of the Sovereign State,” in The Oxford
Handbook of Carl Schmitt, ed. Jens Meierhenrich and Oliver Simons (Oxford: Oxford University Press, 2016).
30
Carl Schmitt, The Concept of the Political, trans. George Schwab, (Chicago: University of Chicago Press, 1996), 49; Carl Schmitt,
Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab, (Chicago: University of Chicago Press, 2006),
12-13.
31
Hobbes, Leviathan, 184; Renato Cristi, “Carl Schmitt on Sovereignty and Constituent Power,” in Law as Politics: Carl Schmitt’s
Critique of Liberalism, ed. David Dyzenhaus (Durham, NC: Duke University Press, 1998).
32
See further Nicholas Barber, The Constitutional State (Oxford: Oxford University Press, 2010), 121-123; Nicholas Barber, The
Principles of Constitutionalism (Oxford: Oxford University Press, 2018), 28-29.
33
Rodney Brazier, Constitutional Reform: Reshaping the British Political System 3d ed. (Oxford: Oxford University Press, 2008),
94-5.
196 · The American Journal of Jurisprudence, 2024, Vol. 69, No. 3

the monarch’s political capital will be sufficient to allow them to make a choice. In other situa­
tions, where the constitution does not provide an explicit power for the monarch to resolve dead­
lock, their political capital will depend on how they are regarded within the community, whether
they have the respect and influence necessary to make the decision stick. The capacity of the mon­
arch to play a decisional role in the constitution will be contingent on both the circumstances of
the constitution and on the character of the monarch.

C. The Leader as a Product of their Mode of Selection

The last two models of leadership looked at what the leader, through their actions, can do for the
group. The following models, in contrast, turn on the presence of the leader in office: rather than
benefiting the state through their actions, under these models the bare presence of the leader

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bestows a benefit upon the state. The first of these models turns on the mode of selection. In
many states the process by which the leader is selected is regarded as of inherent value. The demo­
cratic process is the most obvious example of this. Whilst there are many strong instrumental argu­
ments for democracy, contending that it produces good government, the process is often regarded
as intrinsically valuable, as a way in which states acknowledge the basic moral equality of people
through their constitutional structures.34 Everyone gets a vote, everyone’s vote is given the same
significance. More generally, the democratic process permits the creation of citizenship, the opti­
mal form of state membership, one in which the constitution confers the maximum amount of po­
litical influence on an individual that is congruent with the moral equality of others in the state.
When a leader is selected through democratic processes, the leader stands as a product of those
processes, and, as such, benefits the state simply by their presence in office. They stand as a sign
of the commitment of the state to this mode of selection, and the democratic process can only op­
erate if their authority as leader is accepted. The function of the leader is, by their bare presence in
office, to support and render viable their mode of selection. Under this model, their technical or
decisional capacity is not significant. In some ways this is a more robust argument for the leader’s
legitimacy than that found in the two previous leadership models. Even if we disagree with the
leader, we still have reason to accept her decisions and support her in office.
Democracy is the most obvious form of selection process that might be ascribed inherent value,
but it is far from the only candidate. Under the old justifications for monarchy, those grounded in
divine will, an argument of this type could be made for the monarch: perhaps we should accept
the authority of the monarch because she had been selected by God, and her continued occupancy
of office amounts to an expression of the faith of the community, and their embrace of His divine
plan.35 Once God is removed from the picture, the mode of selection of the monarch becomes a
problem, not a strength. Having a leader selected by birth implies problematic claims about how
authority and prestige are conferred within the state, ones that are set against the basic idea of con­
stitutional equality that underpins citizenship.36 One of the most significant of all constitutional
roles, the Head of State, no less, is awarded by right of birth and, in consequence, is not an office
other state members can aspire to occupy. This mode of selection implies a statement about how
the community views entitlement and reward, a statement that has implications stretching beyond
the selection of the monarch. It stands in opposition to social mobility and equality of opportunity,
tying merit to birth. Moreover, it is a family rather than an individual that is rewarded and empow­
ered, a social unit within which duties between family members will inevitably be in tension with
their duties towards the state.37 This aspect of monarchy, its hereditary nature, provides a standing
argument against the institution: all else being equal, we should work towards its removal. All else
is not, of course, equal, and the injustice of the mode of appointment may be counterbalanced by
other advantages that the institution brings. But monarchy is an institution that requires a positive
34
Jeremy Waldron “Participation: The Right of Rights,” in Waldron, Law and Disagreement (Oxford: Oxford University Press,
1999); Ronald Dworkin, Justice for Hedgehogs (Cambridge MA: Harvard University Press, 2011), 388-392; Barber, The Principles of
Constitutionalism, ch. 6.
35
On the continuing links between monarchy and religion, see Ian Bradley, “The Religious Dimension of Monarchy,” in Hazell &
Morris, 94-106.
36
Adam Tomkins, Our Republican Constitution (Oxford: Hart Publishing, 2005), 139–40.
37
I am grateful to Ewan Smith for this point. See also Tom Nairn, The Enchanted Glass, 2d ed. (London: Verso, 2011), ch.1.
 Constitutional Monarchy · 197

justification, and, because of the hereditary nature of monarchy, any debate over its future begins
with a powerful argument against its existence.

D. The Leader as Exemplar

Social psychologists write of ‘prototypical’ group members, figures who embody the essence of the
group.38 These prototypes are constructions of the group, and possess a set of attributes character­
istic of the group which serve to distinguish the group from other entities.39 The prototype stands
as a picture of what it means to be a successful group member. This need not be an actual person,
and even fictional, or semi-fictional, figures, such as the Soviet Union’s Alexey Stakhanov or
China’s Lei Feng could play the role, but real people, including leaders, can also act as prototypes
within the group. There are instrumental advantages in having a leader who possesses the qualities

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of the prototype, advantages which may make the leader more likely to succeed in the first two
models of leadership discussed in this section. The leader’s prototypicality may, for example, mean
they have a strong grasp of the values and beliefs of the group and are more likely, for this reason,
to reach decisions that are counted as correct within group ideology.40 Relatedly, their prototypi­
cality may enhance their capacity to make effective decisions within the group, given their fol­
lowers perceive them as oriented towards group values.41 Alongside these instrumental
advantages, there are also potentially intrinsic advantages for the group when the leader plays the
role of group prototype. As prototype, the leader functions as an exemplar within the group, an
embodiment of the group’s values and beliefs. The leader then acts as a reference point, a means
by which group norms are expressed back to the members, and acts as a source of reassurance
about these norms. Moreover, as some may find it easier to connect with a person than an institu­
tion or set of rules, the prototypical leader serves as a point of identification within the group, em­
bodying group norms in a relatable form. Where group membership is seen by a member as a
positive feature of her identity, their connection with this person can be an important part of their
connection to the group: in the prototypical leader they see an element of their own identity
within the group, perhaps an idealized element, reflected back to them. Their identification with
the leader becomes a strand of their identification with the group. As a consequence of this reflec­
tion, the prototypical leader is invested with charisma, a mode of legitimation that is as hard to un­
derstand as it is commonplace to experience.42 As Max Weber wrote, a charismatic leader is one
who is obeyed and supported because group members believe in her, rather than necessarily think
her practically competent or legitimately selected.43 They support and obey the leader because, by
so doing, they affirm their support for a group which is constitutive of their identity.44 To put it
another way, charisma is a relationship based directly on attachment: charismatic leadership exists
when followers are emotionally bonded to the leader. For those under the sway of charisma, cha­
risma embodies a reason to support the leader that is analogous to those which underpin family
relationships, reasons grounded in identity rather than in the practical, transactional, capacity of
the other party to help us with our projects and goals. Perhaps, we could speculate, this structural
similarity with family relationships points to the underlying basis of charisma, suggesting that cha­
risma arises when leaders persuade their followers they are all members of a family group, a kin­
ship unit, with the leader at its head. For the harder-headed, unswayed by the lure of charisma,
there is a second, indirect, mode of legitimation that a charismatic leader brings. That some state
members experience this form of attachment helps shore up the effectiveness of the state and,
where the effectiveness of the state is an attractive goal, the leader’s apparent prototypicality pro­
vides a reason to support her leadership, even to those who do not identify with her.
38
Rupert Brown and Sam Pehrson, Group Dynamics—Dynamics Within and Between Groups 3d ed. (Oxford: John Wiley & Sons,
2019), 20, 110-112; Leonie Huddy, “From Group Identity to Political Cohesion and Commitment,” in The Oxford Handbook of
Political Psychology, ed. Leonie Huddy, David Sears, Jack Levy (Oxford: Oxford University Press, 2013), 749-750.
39
Dann van Knippenberg and Michael Hogg, “A Social Identity Model of Leadership Effectiveness in Organizations,” Research in
Organizational Behaviour 25 (2003): 245.
40
Ibid., 251.
41
Ibid., 247.
42
Ibid., 271-277.
43
Weber, “The Profession and Vocation of Politics,” 311-313.
44
Wendy Brown, Nihilistic Times: Thinking with Max Weber (Cambridge MA: Belknap Press, 2023), 36-8.
198 · The American Journal of Jurisprudence, 2024, Vol. 69, No. 3

This discussion of the prototypical leader is echoed in much of the writing on monarchy: of all
the possible functions of monarchy, the monarch as a prototypical leader is, perhaps, the most
plausible. In a brilliant, and sharply critical, essay on monarchy, William Hazlitt wrote:

Man is an individual animal with narrow faculties, but infinite desires, which he is anxious to con­
centrate in some one object within the grasp of his imagination, and where, if he cannot be all
that he wishes himself, he may at least contemplate his own pride, vanity, and passions, displayed
in their most extravagant dimensions in a being no bigger and no better than himself. Each indi­
vidual would (were it in his power) be a king, a God: but as he cannot, the next best thing is to
see this reflex image of his own self-love, the darling passion of his breast, realized, embodied out
of himself in the first object he can lay his hands on for the purpose. The slave admires the ty­

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rant, because the last is, what the first would be. He surveys himself all over in the glass
of royalty.45

The passage provides an evocative expression of the idea of the monarch as prototypical group
member. For Hazlitt, royalty is a mirror, a glass, in that the monarch is seen to resemble each per­
son who gazes upon her. Moreover, it is a mirror that distorts: the viewer sees the best version of
themselves in the monarch, the aspects of their identity they find most attractive. The trick of
monarchy, then, is that the monarch appears differently to each person or, to put it another way,
contains a range of versions of the prototypical group member within themselves. Hazlitt doubt­
less saw this as a mark of the duplicity, or at least the hollowness, of monarchy: after all, as he ro­
bustly reminds us in the following paragraphs, monarchs are people, and often flawed people at
that. However, the capacity of the monarch to both act as a prototypical group member and to sat­
isfy multiple conceptions of what a prototypical group member should be, is a significant asset for
the state: the monarch, through her person, serves to unify and strengthen the state. She unifies,
by providing a point of identification that a wide range of state members can accept, and, by mak­
ing the state relatable, gives a human face to its institutions and structures. As Walter Bagehot ar­
gued, the monarch, as a person, renders the constitutional system intelligible to the people.46 She
performs this role for people with a wide range of political (and, indeed, constitutional) views.
Though they disagree over the direction of the state, they agree that the maintenance of this insti­
tution, monarchy, is part of that vision; the monarch provides them with common ground, a point
of agreement. The monarch helps achieve what Dieter Grimm has described as the “integrative”
function of the constitution, facilitating the containment and regulation of disagreement within
the state.47 Grimm writes that the constitution “is expected to unify the society that it has consti­
tuted as a polity, regardless of the difference of opinions and conflicting interests that exist in all
societies.”48 If the monarch can act as a prototypical group member to a broad range of state
members, she helps the constitutional order satisfy this function by enabling disagreement be­
tween state members to occur without that disagreement undermining their identification with
the state.
This argument for monarchy, based on identification, should be distinguished from a superfi­
cially similar argument grounded in representation. It is occasionally argued that monarchy pos­
sesses a representative function, with the monarch representing the people as a whole within the
governing apparatus of the state.49 The argument turns the tables on democratic objections to
monarchy: perhaps the monarch is more democratically legitimate that an elected official, as the
elected official represents only the fraction of the community that voted for her, whereas the mon­
arch represents all state members.50 As with the argument from identification, the monarch plays
45
William Hazlitt, “On the Spirit of Monarchy,” in Hazlitt, On the Spirit of Controversy and Other Essays (Oxford: Oxford
University Press, 2012), 206.
46
Bagehot, The English Constitution, 82.
47
Dieter Grimm, “Integration by Constitution’ in Grimm,” Constitutionalism (Oxford: Oxford University Press, 2016).
48
Ibid., 144
49
Thom Brooks, “No Rubber Stamp: Hegel’s Constitutional Monarch,” History of Political Thought 28 (2007): 99-103.
50
A similar argument is sometimes made for the legitimacy of the courts: Christopher Eisgruber, Constitutional Self-Government
(Cambridge MA: Harvard University Press, 2001), ch. 2; Kim Lane Scheppele “Democracy by Judiciary, Or, Why Courts Can Be
More Democratic Than Parliaments,” in Rethinking the Rule of Law After Communism, ed. Adam Czarnota, Martin Krygier, and
Wojciech Sadurski (Budapest: CEU Press, 2005).
 Constitutional Monarchy · 199

a unifying role in the state, but, now, the unifying function is accomplished through the active ex­
pression by the monarch of the popular will. The attraction of this argument may partly turn on a
play on words. Hanna Pitkin has identified a range of meanings that can be ascribed to representa­
tion.51 In one sense of representation, symbolic representation, a person can represent a group by
standing for that group, being a symbol of the group both to group members and to outsiders.52 In
this sense, monarchs do frequently act as representatives of the people, after all, the monarch is
head of state, and, as such, represents the state in various formal contexts. This account of the
monarch as representative is congruent with the account of monarch as exemplar developed in
this section. A second, distinct, set of senses of representation is substantive representation, where
the representor acts on behalf of those they represent.53 Ascribing this second sense of representa­
tion to the monarch is far more problematic. There is no reason to suppose the monarch will be

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able to identify the will or the true interests of the people successfully if the political processes of
the constitution have failed to do so. In a constitutional monarchy, which, by definition, includes a
functioning democratic element, it is unlikely that elected representatives will ignore the wishes or
interests of the people on those rare occasions when there is a unified will or interest to be identi­
fied. Far more commonly, of course, there will be a range of wishes and interests contained within
the mass of those who constitute ‘the people’, and one of the aims of the democratic structures of
the state is to process and accommodate this disagreement. In these instances, the monarch could
not speak for “the people” as this presupposes unity where there is, in fact, division. In the back­
ground of claims of this type lurks the hope that the monarch can transcend the messy compro­
mises and defeats of the political world by accessing the true and undiluted will of the people,
enabling the state to make decisions without these unattractive costs. But this is a fantasy: the
monarch cannot both engage in political dispute and rise above it. The argument for the monarch
as exemplar, in contrast, does not require the monarch to attempt to articulate the will of the peo­
ple and to shape public policy, it merely requires that the monarch be present. The monarch as ex­
emplar unifies through identification rather than action, and this allows her to act as a point of
unity for those within the state who hold radically different political views.
These two points, the capacity of the monarch to render the state relatable through their person
and the capacity of a diverse range of people to experience this relationship, may tie to a further
observation raised by Bagehot, that the idea of there being a family on the throne is significant.54
When monarchy is working well, it may succeed in establishing a form of charismatic leadership,
one which brings a suggestion of the nation as a family, with the monarch as the head of that fam­
ily unit.55 The monarch’s spouse, children, and sometimes even their wider family, are given prom­
inence in the public realm, whereas the families of prime ministers rarely receive equivalent
attention. In part, the monarch’s family helps reinforce the relatability of the monarch. It grounds
the monarch as family member, and, as most of us live within families, we can understand and em­
pathize with the challenges this brings. It also broadens the points of identification by bringing a
cast of royal characters of differing ages, genders, and identities through which people can engage
the monarch. But a second reason could be that the prominence of the monarch’s family encour­
ages the impression that the office is grounded in kinship, with the implication that we, in our
turn, are part of this kinship group. The royal family becomes understood as the visible part of the
national family.56 The relationship between the people and the monarch may, then, sometimes be
grounded in the identification with, rather than rational endorsement of, the leader, and it is for
this reason that it is a bond that can be shared with others who hold different political views.57 As
such, it may complement the second type of leadership with which monarchy is standardly paired.
Prime ministers possess democratic authority, mediated through the legislature, and are chosen
because of their political views. That the prime minister is elected through a competition in the
51
Hanna Pitkin, The Concept of Representation (Berkeley, CA: University of California Press 1972).
52
Ibid., ch. 5.
53
Ibid., ch. 6. For our present purposes, it is unnecessary to distinguish between the various forms of substantive representation.
For discussion, see Barber, The Principles of Constitutionalism, ch. 6.
54
Bagehot, The English Constitution, 85.
55
Ibid., 60.
56
See generally, Wim Voermans, The Story of Constitutions (Cambridge: Cambridge University Press, 2023), ch. 3.
57
Vernon Bogdanor, Monarchy and the Constitution (Oxford: Oxford University Press, 1995), 301.
200 · The American Journal of Jurisprudence, 2024, Vol. 69, No. 3

state and is chosen for her policy platform hinders her capacity to establish an emotional, charis­
matic, bond with state members. It is her policy platform and democratic mandate, technical ca­
pacity and mode of selection, that normally legitimates the office. These are rational, rather than
emotional, modes of legitimation. When monarchy works well, the pairing of monarch and prime
minister allows the rational legitimation brought by the prime minister to be complemented and
bolstered by the emotional connection established by the monarch.
Many scholars have identified this symbolic role as a core function of monarchy.58 But it is far
from inevitable that the officeholder, the monarch, will be able to play this role. Whilst the glam­
our of monarchy may be such that people are drawn to treat the holder of the office as a prototyp­
ical group member—the bestowing of crowns, the fancy ceremonies, and, indeed, the
identification of the monarch as Head of State are formal indications that the monarch is worthy

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of respect and admiration—the capacity of the monarch to acquit this function will vary depend­
ing on the officeholder and the context in which they operate. To enable a wide range of state
members to see you as a prototypical group member requires considerable skill. Partly, this
requires the monarch to give the appearance of being above or outside of political debate, by
avoiding expressing views that could alienate sections of the community. At the same time the
monarch cannot simply remain silent, she must say enough to establish a character within the pub­
lic realm: to play the part of prototypical group member, there must be something of substance
with which people can identify. The monarch must engage in political discourse without being
seen to do so. There are at least two ways in which this can be accomplished. First, the monarch
may speak out on issues that are uncontroversial but important, such as mental health or the im­
portance of caring for children, and when these views are expressed in sufficiently general terms,
they can allow the monarch to establish a public profile that just about everyone can support. The
potential longevity of a monarch’s reign can make this tricky, as what is seen as uncontroversial to­
day may become controversial in a decade’s time.59 Secondly, and more riskily, the monarch can
express opinions which can be construed in different ways by different group members, or can pre­
sent a range of statements in their public speeches such that people are able to pick and choose
the elements they find attractive. For example, a monarch might speak on the virtues of nature
and the need to protect our natural environment. For environmentalists, this sounds like a call to
tackle pollution and climate change. For traditionalists, this is a call for the protection of older
ways of rural life, the protection of, say, village communities with pubs, churches, hunting, and the
local squire. For farmers, this is an endorsement of their management of the countryside. For
those who love rambling, it is the preservation and enhancement of access to fields and woodland.
The list could go on, but, skillfully presented, on such a topic, the monarch can be almost all
things to almost all people. Sometimes this strategy can even be used in areas of political contro­
versy. The monarch can drop hints, or have hints dropped on her behalf, that she is sympathetic
to each side of the debate, containing the political contradiction within herself rather than rising
above it. So, for example, on an issue like gay marriage the monarch might present herself to its
supporters as a staunch upholder of equality, whilst to its opponents the monarch may play up the
importance of the traditional family unit and her commitment to religious teachings. Given there
are no mechanisms to compel the monarch to clarify her position—in contrast to a politician who
might be faced with a vote on the issue—she can, on some issues, be plausibly thought to be both
for and against a proposition.
As Hazlitt noted, for the monarch to succeed in this function requires the willing suspension of
disbelief by her people.60 Partly, this is because this is a trick performed in plain sight: we know
that the monarch’s speeches are written, and their actions choreographed, in such a way as to have
this effect. Each side plays its part. The monarch gives her people enough material to create a char­
acter with which they can identify, but it is those people who then tailor this to fit their model of
the prototypical group member. But the suspension of disbelief is also required as the monarch is,
by virtue of her office, radically politically divisive. Though we are often told the monarch is above
58
Robert Hazell & Bob Morris, “Towards a New Theory of European Monarchy,” in Hazell & Morris, 279-80; Brazier,
Constitutional Practice, 183-4; Bogdanor, Monarchy and the Constitution.
59
Helle Krunke, “Day-to-Day Political Functions of the Monarch in Denmark,” in Hazell & Morris, 74-6.
60
Hazlitt, “On the Spirit of Monarchy,” 209.
 Constitutional Monarchy · 201

politics or politically neutral, the mode of selection of the monarch is, as we have seen, deeply and
inherently political, cutting against the basic ideas of moral equality which should underpin the
state. The institution of monarchy is grounded in the claim that respect and reward should be con­
ferred by right of birth, that inherited privilege is legitimate. These are problematic political claims
that many, perhaps most, would reject if they considered them directly.
Given that the office of monarchy is politically controversial, for the monarch to play an integra­
tive function in the state is a challenge, but it is a challenge some monarchs clearly meet. Where
the monarch can provide a symbolic focus for a significant portion of state members, the office of
monarchy provides an important point of identification and attachment within the state. But the
capacity of an office holder to play this role will vary. It is far from easy to appear to remain politi­
cally neutral in an office which is inherently politically controversial, and to engage in political de­

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bate in a manner which permits as many people as possible to think you support their vision of
the state’s future requires significant skill.

E. The Leader as Scapegoat

The final function of the leader is the converse of that discussed in the previous section. Whereas
the last section discussed the role of the leader as the embodiment of the group’s ideology, the
leader can also become a counterpoint to it, an example of what the group defines itself against.
The group then constructs and reinforces its identity by focusing on what it is not. Often, this defi­
nition by negation focuses on those outside of the state. The “enemy” in Carl Schmitt’s work plays
this role, a conceptually necessary threat against which members of the state define their constitu­
tional identities.61 The leader can also play this role: just as the prototypical leader in the last sec­
tion reinforced group identity and solidarity by providing a symbol of the characteristics of the
group, the scapegoat leader can play the same function in reverse.62 The scapegoat provides a neg­
ative symbol of identity, an embodiment of the capacities that do not define the prototypical mem­
ber. Just as the prototypical leader could draw state members together in shared recognition of the
prototype, the scapegoat leader draws people together in shared condemnation of their leadership.
The scapegoat leader further serves the state by acting as an insulator from the consequences of
political mistakes. It was not the state that made these errors, but the leader, who did so by failing
to embody and pursue the qualities of the prototypical state member. It is the leader, and not the
state, that has failed. Such insulation can preserve the attraction of what might otherwise appear to
be a failing state to its members. As has often been noted, successful, high status, groups tend to
attract more support from their members than struggling or problematic groups.63 The scapegoat
leader helps maintain the success of the state by absorbing its failings and then, these errors
absorbed, being ejected from office, leaving the state cleansed.64
The legitimacy of scapegoat leadership differs radially from the preceding models. Once a leader
begins to play the role of scapegoat, the end point of the process is resignation or sacking, a sacri­
fice is needed, the scapegoat must be split from the state. But to play the scapegoat effectively, the
leader must be able to lead before ejection, it must be credible to lay the problems of the state on
the leader. Given the leader as scapegoat brings something of value to the state, there is reason to
support them in office, just as there was reason to keep the original, non-metaphorical, scapegoats
in good health before they were cast out. A scapegoat leader might remain in office for a consider­
able period, soaking up the blame for the problems of the state, especially, as is the case in a mon­
archy, if paired with a second, effective, leader.
Though potentially useful, scapegoating is cruel. To be rejected by a group that you identify
with strongly, one that forms a core part of your identity, can only be hurtful and damaging.
Compounding this, the scapegoat monarch is pilloried for failing in a role she did not choose to
undertake, a role which the state pushed her into occupying, and for which she may never have
61
Carl Schmitt, The Concept of the Political, 25-37; Benjamin Schupmann, Carl Schmitt’s State and Constitutional Theory: A Critical
Analysis (Oxford: Oxford University Press, 2017), 80-83.
62
Clifford Geertz, “Ideology as a Cultural System,” in Geertz, The Interpretation of Cultures: Selected Essays (New York: Basic
Books, 1973), 205; Brown and Pehrson, Group Dynamics, 20-22.
63
Henri Tajfel and John Turner, “The Social Identity Theory of Intergroup Behaviour,” in Psychology of Intergroup Relations, ed.
Stephen Worchel and William Austin (New York: Nelson Hall, 1986), 17-19.
64
See Leviticus 16:21-22, where the original, and literal, scapegoat played exactly this role for a political community.
202 · The American Journal of Jurisprudence, 2024, Vol. 69, No. 3

possessed the capacities to execute well. Moreover, sometimes, perhaps often, the elements for
which she is blamed will have been features of the state as a whole and not the products of her
personal, unfettered, decisions. Her scapegoating will sometimes be part of an act of forgetting by
the state, a pretense that systemic failings were personal errors, and, by cutting away the person,
an unjustified renunciation of the collective responsibility by state members for what has
gone before.

IV. CONCLUSION: ASSESSING CONSTITUTIONAL MONARCHY AS A

FORM OF LEADERSHIP
When we turn to real-world instantiations of leadership offices it is likely that they will combine a

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number of these functions, with the constitution providing multiple explanations of their legiti­
macy. Indeed, that might be a good thing: stable leadership may rest, in part, on there being a col­
lection of reasons for people to accept and support the leader, rather than a single explanation of
their authority, a single explanation which might prove fragile. When considering the inclusion of
a form of leadership in the constitution, there are four groups of considerations which are of rele­
vance: the importance of the function played by the office; the likelihood that those in the office
will be able to satisfy this function; the risks brought by the creation of the office; and, finally, the
potential for this function to be satisfied by other constitutional institutions or structures.
Recalling our discussion of the possible functions of monarchy, the first two, technical and deci­
sional capacity, are, in the broadest of terms, vital to the state, but the particular elements of these
capacities commonly linked to the monarch seem far from essential. The type of technical exper­
tise the monarch is expected to bring to the constitution is vague, and, often, impossible to assess.
The monarch may play an effective “mentoring” role and might, perhaps, act as a “longstop” in a
crisis, but it is hard to assess the significance of these roles. It is possible the state would function
perfectly well without them, and, in any case, the hereditary principle ensures monarchs are un­
likely to play them any more successfully than others in the constitution. In terms of decisional ca­
pacity, this tends to be required in unusual and unanticipated situations, those which the
constitution has failed to accommodate in advance of their occurrence. Perhaps a crisis of this
type will never arise, perhaps, if it does arise, the monarch’s intervention will make matters worse
rather than better. In either case, of technical or decisional capacity, the hereditary nature of the
monarch renders the exercise of these powers risky, a challenge to the democratic base of the con­
stitution. If there are other good reasons for our having or retaining a monarch, technical and deci­
sional justifications of their leadership role might add to their legitimacy, giving us extra reasons to
value the office, but, by themselves, are far from sufficient to justify its creation or retention; it
would be preferable to find other institutions in the constitution to cover these tasks.
This leaves us with the final two possible functions of monarchy, the monarch as scapegoat and,
its mirror-image, the monarch as exemplar. The scapegoat as a possible function of monarchy can
be dealt with relatively briskly. As it involves the eventual removal of the office, it could, at best,
only provide a temporary argument for the keeping of monarchy—and the cruelty of the function
is such that it would be hard to justify the inclusion of the office in the constitution on this basis.65
It is the function of the monarch as exemplar, and, in so doing, the creation of a point of identifica­
tion within the state, which provides the most plausible argument for the institution. Whilst there
are other ways in which the state can achieve this, when monarchy is working well, its appearance
of political neutrality, its grounding in a family, and its broader glamour, combine provide a relat­
able feature of the state, one which complements the rational arguments for legitimacy established
through democratic and technocratic institutions. If a substantial portion of state members regard
the monarch as a positive feature of the constitution, a feature with which they identify, this, in
itself, gives us a strong reason to support the office. The presence of the monarch helps the state
connect with its people, and helps draw together members of the state who hold differing
political views.
65
It is, perhaps, worth noting that the governor-general model of constitutional monarchy is better suited to the creation of scape­
goats, given that the governor-general is commonly a fixed-term role and easy to replace.
 Constitutional Monarchy · 203

However, it is very unlikely that monarchy will always play this role successfully. When an of­
ficeholder emerges who, because of their character or the broader political context, is unable to
act as a focal point, or, worse still, begins to divide the state, the justification for retaining monar­
chy as an institution vanishes. Unlike those forms of leadership whose justification is partly
grounded in their mode of selection, there is no intrinsic argument for monarchy. An elected pres­
idency is intrinsically valuable because it helps realize the principle of democracy within the consti­
tution; there is a strong reason to accept the legitimacy of an elected president, even if the
officeholder is failing radically in the role. When a president is failing, there is an election in a few
years’ time at which the problem can be resolved, but when a monarch is failing, the cure is not so
obvious. Monarchs are hard, though not impossible, to replace, and the range of replacements,
given the hereditary nature of monarchy, is limited.66 And, of course, once monarchy has failed,

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much of the glamour is lost and the underlying nature of monarchy, the unattractive claims of he­
reditary privilege on which it is founded, become exposed. Whilst the implications of the heredi­
tary principle are ignored by the political community, the selection of the monarch through birth
is an asset, appearing to put the monarch above politics, anchoring the monarch in family, and,
perhaps, allowing a faint echo of those earlier religious arguments for monarchy to remain at­
tached to the institution—or, as King James I put it, “adorned and furnished with sparkles of the
Diuinitie [divinity].”67 Once looked at squarely, though, the monarch’s mode of selection becomes
a liability, radically undercutting their role as an exemplar. Recalling Hazlitt’s claim that monarchy
depends, in part, on the self-deception of its followers, once this self-deception is lost it is unlikely
to be restored—and it would be hard to argue that the state should seek to restore it.
In addition to the risks brought by the mode of selection, monarchy also brings with it moral
costs. There are strong arguments of principle against the institution. As we have seen, monarchy
cuts against the basic idea of constitutional equality that should underpin state membership, giving
constitutional powers to one person that are not available to the rest. More generally, it includes
within the ideology of the state a commitment to class privilege. By virtue of their family, the mon­
arch is rewarded by the state with wealth, power, and respect, and it is likely that this aspect of
monarchy radiates out into society more generally, beyond the constitutional order, a statement
about the legitimacy of social inequality. Even if the monarch is popular with some state members,
there are good reasons why others may feel alienated from the state because of the monarch’s
presence. Buttressing these arguments against monarchy is a wide range of alternative ways that
states can use to establishing identification and integration. There are less problematic ways these
ends can be achieved. For instance, institutions such as the constitution or legislature can provide
a point of identification, and the state’s presentation of its history and mission can draw peo­
ple together.
For Graham Smith, in his recent book on monarchy, the arguments against the institution are
decisive: as a matter of principle, the constitution should not tolerate an undemocratic institution
to remain within its structures.68 There are certainly attractions to such a conclusion, but there is
also a case for pragmatism. When the monarch is succeeding in providing a point of identification
for a significant portion of state members, and is not a significant cause of alienation for others, it
might be a mistake to unsettle this position. We cannot be sure that alternative mechanisms of
identification will be equally efficacious, indeed, as there are many forms of republic to choose
from, the process of choice could alienate, creating winners and losers in the debate. More
broadly, the act of removing a monarch who does have support, even minority support, will be
destabilizing. The contents of those elements of the state which ground identification are often
hard, or impossible, to rationally defend, in that they establish an emotion connection with the
state rather than provide a rational argument for our support. This emotional connection is, never­
theless, exceptionally important in securing the support of state members for state institutions and
for shaping the ways state members interact with each other. The principled arguments against
monarchy show that a state must ensure that there are other ways of grounding this identification,
and that it be possible to be member of the state without supporting the monarchy. Constitutional
66
Brazier, “A British Republic,” 365.
67
King James I, “A Speech in the Parliament House,” in Political Writings, 147.
68
Graham Smith, Abolish the Monarchy (London: Torva, 2023), ch.3.
204 · The American Journal of Jurisprudence, 2024, Vol. 69, No. 3

monarchies, with their paired leadership, often accomplish this, providing a republican narrative
that runs alongside the monarchical.69 State members can then ground their identification with
the state on differing parts of the constitutional order. This is, though, a fragile argument for the
maintenance of monarchy. When monarchy is working well, and it can work well for a long time,
it is an asset to the constitution, but its mode of selection renders it a time-limited constitutional
form. Whereas democracy provides a standing argument for republican institutions, even when
those institutions are functioning poorly, when monarchy functions poorly the reasons for includ­
ing it within the constitution disappear. As Bagehot put it, a good monarchy is invaluable, but a
bad monarchy is irreparable.70

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69
Bagehot, The English Constitution, 94; Nicholas Barber, The United Kingdom Constitution: An Introduction (Oxford: Oxford
University Press, 2021), ch. 22.
70
Bagehot, The English Constitution, 120.
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The American Journal of Jurisprudence, 2024, 69, 189–204
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