Study with the several resources on Docsity
Earn points by helping other students or get them with a premium plan
Prepare for your exams
Study with the several resources on Docsity
Earn points to download
Earn points by helping other students or get them with a premium plan
Outline of Content 1. Meaning of term "Constitution" 2. The theory of constitutionalism 3. Historical Development of Constitutional Principles 4. Constitutions in the USP Region
Typology: Study notes
1 / 20
This page cannot be seen from the preview
Don't miss anything!
WHAT IS A CONSTITUTION, AND WHAT IS THE
PURPOSE OF A CONSTITUTION
Meaning of term "Constitution"
The theory of constitutionalism
Constitutionalism as post-colonial theory
Historical Development of Constitutional Principles
Social contract theory
Constitutions in the USP Region
U n i t 1 c o n c e p t m a p This map represents the core concepts that we will be covering in this unit, and the relationships between them.
L e a r n i n g O u t c o m e s
Upon successful completion of this topic students will be able to:
Explain the concept of a constitution; Demonstrate the sense in which a constitution is a legal as well as a political document; Describe the connection between constitutions and the doctrine of constitutionalism; Discuss some of the different purposes functions served by constitutions; and Describe the process of constitutional formation in the South Pacific countries.
Meaning of the term " C onstitution" The Oxford English Dictionary defines the term ‘constitution’ as "… the system or body of fundamental principles according to which a nation, state or body politic is constituted and governed ". Note that the terms state, nation and body politic are interchangeable, although they have different shades of meaning themselves. Sometimes you will find the use of the term in this sense a little confusing. Be careful to distinguish between two sub-senses. The first is when we are referring to a specific document which is known as the Constitution of a particular country. Usually this occurs with a capital 'C'; e.g. the Constitution of Tuvalu. But when we are talking about constitutions in a broader sense we will use it with a small 'c'; e.g. when we say "a constitution embodies certain fundamental values and norms of a country" or the Constitution of Solomon Islands does not represent the whole of the constitution of that country" Other organisations also may have their own constitutions. In this course, we are looking at constitutions of countries or nation states (as they are more properly called). You should be aware however that the term constitution is not only used to describe the fundamental legal documents that establish a nation and determine the way in which politics and law making are conducted in that country, smaller entities also have constitutions. Companies and corporations, charitable organisations and sporting organisations have constitutions, these are purely internal documents that set out how that organisation or company is established, and how meetings will be run and how decisions are made. These constitutions perform the same role that they do for nation states, but they only apply to the organisation and its members. Such organisations are also controlled by the general law of the country in which they operate. In this course we are not concerned to study the constitutions of companies and small organisations, we will only study the constitutions of nation states.
P u r p o s e o f C o n s t i t u t i o n s
Let us start with an activity.
Write down now, solely to clarify your own thinking, all of those purposes which you think might be served by a constitution. It would be interesting to compare your list of purposes with those compiled by other students. .
No doubt there will be some variation of opinion on this basic question. There usually is. One of the reasons is that constitutions are political documents as well as legal documents. They express a kind of political bargain or compact between peoples. But there is still often some degree of dispute about some of the
What we refer to as 'constitutionalism' is just one such theory. It attempts to explain why we need constitutions and what they are all about.
Theories can be of different types.
They can be descriptive when they just try to describe what a given situation is. They can be empirical where it is claimed that an explanation is supported by or based on well established facts, Some are what we call normative theories; they try to explain not only what is the case, but what ought to be the case.
Thus the following sentences are examples of normative theory: 'Human beings ought to act unselfishly, for this is contributes to the common good of society...' or ' Politicians should be restrained in their exercise of political power otherwise they will act corruptly and out of self interest.'
Actually nearly all theories are normative, because nearly all theories are suggesting the way things ought to be, it's just that some theories do this more obviously than others.
Constitutionalism is a theory about politics. It is not just a theory of government, although that is part of it. It is a theory about what form the political organisation of a society should take. It is certainly a theory about how constitutions work and what role they play in a society. Yet it is more than that because it is trying to tell us that it is a good thing to have constitutions and to explain why this is so.
Constitutionalism is a particular political view that sees constitutional government as a good thing, and other less structured forms of governance as undesirable. Not all people would agree with the constitutionalist view.
Before going further let us consider what kind of theory constitutionalism is. We want you to do some thinking about it.
Let us consider the following statement. We will approach it as if you were analysing it for the purposes of an assignment or an examination answer (Note: it is not the course assignment for this course).
"Constitutional law is concerned with the role and powers of the institutions within the state and with the relationship between the citizen and the state. The constitution is a living dynamic organism which at any given point in time will reflect the moral and political values of the people it governs, and accordingly, the law of the constitution must be appreciated within the socio-political context in which it operates." from Bennet H., Constitutional and Administrative, Cavendish, London, 2002, p. 3
The activity you now have to undertake is to critically analyse this statement and, in doing so, to explain what theory of a constitution and constitutional law it is presenting.
So how are you going to approach this? First of all, read the question again and make notes of the main things which you think it is telling you about constitutions; what they are and how law might be involved with them. Then think about it for a while before proceeding further.
You have to answer the question. Have you done enough already? Certainly not. You certainly wouldn't start writing an answer yet, although people frequently do at this point. They just jump in boots and all and start writing anything they want about the subject of constitutions (not that they would know much at this point in the course). If you about answering the question properly and proceed to invent your own question (e.g. let's write an essay about constitutions in general) the result will = FAIL.
Let us try to provide you with some ideas on what you should do in approaching a question like this. At the same time we will seek to provide you with some insight into the kind of thing that the author is trying to explain here.
We have distinguished here between a constitution, (which is a legal document) on the one hand, and constitutionalism (which is a theory about why we need constitutions), on the other. Are you sure that you understand the distinction? Very often people do not. Very often people assume, for example that a constitution just is and that we should just confine ourselves to describing how it operates.
The descriptive approach is very much like saying law is just law. That laws are not based on morality or ethics, or that even if they are, that as lawyers we should not ask about this aspect. Those who take this approach are often referred to as "legal positivists". The problem with taking such a narrow view of law, is that it doesn't help explain what law means, where it came from and how it might be likely to change in then future.
What these legal positivists seem to be saying is that there is no reason or justifying principle behind a constitution, or that even if there is, that lawyers
these schools of thought in fact have slightly different yet similar enough versions of popular sovereignty based on modern constitutionalist doctrine. (Ibid. p. 63ff.)
It is these seven features which, so Tully claims, enabled adherents of modern constitutional theory to suppress alternative conceptions of a constitution based, for example, on historical principles relying tradition and custom.
These seven conventions noted by Tully are as follows:
C o n s t i t u t i o n a l i s m a s p o s t - c o l o n i a l t h e o r y
A great problem with the idea of modern constitutionalism is that it does make the assumption that it is desirable for the world to be divided into nation states, for these states to have stable constitutions and systems of law making, and that particular principles of constitutional governance should be present in all such societies. this vision of modern constitutionalism, certainly describes the way most nations now take part in international affairs, but it certainly seems to describe the world from a distinctly European standpoint and is very much grounded in the history of Europeanization of the world through the process of colonisation in the 18th and 19th centuries. Prior to European colonisation, many parts of the world had very different, and quite stable systems of governance that did not closely resemble the constitutionalist model at all. This was certainly the case in the South Pacific.
According to Tully modern constitutionalists continue to exclude the voice of diverse minority interests and intercultural groups from political or constitutional argument. The principles of modern constitutional theory support the claim that the principles thus developed are supposed to be of universal validity (i.e. valid everywhere in the world regardless of individual cultures or differing ethical and moral beliefs). In this way attention of the constitutional thinker is diverted away from inter-cultural, as well as regional, diversity on the global scale in a context that continues to devalue and debase local custom, as well as cultural and social diversity.
This in many ways is the one of the core political issues faced by nations designing constitutions for themselves, namely: how to develop a constitution that will assist the nation to participate in the community of nations, build a strong economy and legal system but without devaluing the diverse local customs and traditions of the people of the nation.
You may at this point ask yourself, how well do your think your county's constitution has balanced the interests of the nation state with the underlying traditions and cultures of the people.
To fully assess the merit of Tully's argument at this point would lead us well away from the current task. But let's have at least a preliminary look at it. We will look at the Constitution of the Republic of Fiji in terms of the following activity.
H i s t o r i c a l D e v e l o p m e n t o f C o n s t i t u t i o n a l
P r i n c i p l e s
The importance of constitutionalism - i.e. the importance of the existence of fundamental principles to bind the State together - has been recognised since earliest recorded European history. Much of this is described in the extract from the Encyclopaedia Britannica, Vol. 5, 19 77, pp. 84-88, 93-98. You will
The ideas of the present are a product of the ideas of the past.
find this in the readings. The following attempts to summarise and supplement, where necessary, the most important parts of that reading.
The great Greek philosophers Plato (428-347 BC) and his pupil Aristotle (384- 322 BC) devoted much thought as to how one could ensure that a good system of government could be put in place. They asked themselves what particular factors it might be that produced good governments rather than bad systems of government. Plato preferred at some points to put his trust in the education and training of individual rulers - so that they became, in effect, enlightened philosopher kings. If philosophers ruled then government would be in the hands of people who had contemplated and understood the Good. Seeing only philosophers were capable of contemplating the good then they should rule.
Aristotle was rather more practical. He preferred to place more emphasis on the forms of government, preferring a mixed or balanced government which he called a polity containing elements of monarchy, aristocracy and democracy. He thought this mixed constitution as he called it somewhat more practically attainable in Greek society than any other ideal form of government. In fact he claimed that government by a good monarch would be the best form of government of all. The difficulty is to find one and to ensure that they remain the best.
For best here were can understand someone who governs in the interests of others rather than himself/herself. The biggest problem with finding a "good ruler" is the experience that placing too much power in one persons hands tends to also tempt them to act in selfish ways.
The Roman lawyer Cicero (106-43 BC) sought to identify some higher laws based on universal reason and nature which he thought could then prevail over human law to ensure that the fundamentals of a given society were preserved. A constitution could thus be taken as something which was framed according to principles of universal validity.
Whilst one form of thinking about constitutions is like that of Aristotle - it is practical and focused on the nature of particular states - the other is like that of Cicero - based on some endeavour to establish political systems or states on principles which are universal; i.e. they are based on principles which apply everywhere and anywhere regardless of culture. Constitutional theory has never perhaps freed itself from this basic dichotomy of approaches although there seems little doubt that the latter approach has become the predominant one.
Stories about power: In practice however, whatever ideals we may have about how systems of governance should be designed, governance is associated with political power and political power often has much more pragmatic and even violent beginnings than some idealized philosophical theory. There are a number of ways in which powerful groups may come to dominate a society, most commonly, they initially achieve this power through force, violence or military superiority. Despite this nearly all systems of governance seek to justify their power by making up stories to explain why people should obey them. these stories have included, religion, magic, constitutionalism, democracy. The paragraph below gives an account of how this process can work in a society.
During the Dark Ages, Europe was overshadowed by invading hordes from central Asia and Scandinavia, and was plunged into anarchy and chaos. The only means of survival was for people to gather together under the protection of powerful warriors, and to provide each other with mutual support and assistance. As the invaders were gradually repulsed or absorbed, some of the feudal warlords expanded their areas of power into princedoms and kingdoms and persuaded the Christian Church to endorse and legitimise their expanded powers.
From this developed the claim by many rulers and their supporters of an approach to the justification of their own rule known as the Divine Right of Kings; i.e. a right granted by God for kings to rule their subjects. By virtue of this divine endorsement of their rule kings owed certain obligations to God to care for their subjects, but these obligations were not very strict or very tight, and they were obligations for which the rulers were answerable to God alone, not to their subjects.
Other supporters of the power of the kings and princes who established themselves in Europe relied not only the divine right theory, but also upon the realities of community life of that time. There were different ways of justifying the same thing. The might of a strong ruler was necessary in order to save the people themselves from destruction - even where that was self-destruction.
As Europe entered a phase of intellectual growth known as the 'enlightenment' or "age of reason" people started to question ideas of divine right to rule, and so alternative explanations for the concentration of power in the hands of powerful individuals such as kings were developed.
Thomas Hobbes (1588-1679) in his work The Leviathan (1651) argued that in their natural state, the life of the individual human being was "solitary, poor, nasty, brutish, and short". Indeed left to themselves and their self interest they would destroy themselves. It was because of the fear of doing so that they entered into a covenant in the first place to create a State which was to be understood as an all powerful sovereign entity. In fact it was what he called an Artificial Man (now we would call it a juristic entity, or a corporation). This sovereign person (which might be either an individual as in a monarchy, or a collective such as a parliament) was possessed of all political power.
Its right to rule was absolute even though it was, according to Hobbes created by the covenant or consent of the people themselves through fear of their own destructive tendencies in the State of Nature - meaning roughly a condition without law or a state - a condition of human life without all the apparatus of government and regulation. It was needed to govern people and to impose on them the order which they could not achieve for themselves. However, whilst the
their consent to be governed and by revolution if necessary, could legitimately remove a ruler who failed to act in accordance with the basic terms of the social contract.
Constitutionalism grew from this idea, because constitutions were seen to embody the terms of the social contract by which rulers governed and even as a constraint upon the powers of the ruler.
Although this approach had its opponents, and it still does, it became rather widespread. It was of course originally a potentially very radical theory but it became conventional in many respects. It was in that respect a modern approach to theories of government or political theory. By the seventeenth and eighteenth century, it was widely recognised in Europe that there were fundamental principles that should regulate the kingdoms and the relative positions of rulers and the ruled, although there was great difference of opinion as to what those principles were, and the conditions as to their enforceability.
It was not until the English colonies in North America successfully asserted their independence from Britain, that written Constitutions were enacted for each of the former colonies, now republican states, and for their federation, the United States of America. These examples were followed in France, when the French people successfully overwhelmed the monarchy and established a republican government in 1792.
Since that time in all the countries of Europe and most of the states of the world it has been recognised that there are certain fundamental principles upon which the state is based that should be recorded in writing. Thus, as we said before, most of the constitutions of the countries of the world are now embodied in one written document.
So how do we judge a good and a bad constitution then? : Stability and fairness
The truth is that there is no way to define what would make a good or a bad constitution without first making some political assumptions based on an ideological approach to how governance should take place. But, if we wanted to reduce the main themes of the debates down to very basic laymen’s terms we could say that the tow most recurring themes are stability and fairness.
From the philosophical speculations of Plato and Aristotle , through to the attempts by Cicero to identify fundamental principles of good governance through to more modern ideas of social contract and constitutionalism, there is an implicit emphasis upon achieving a system of governance which is both stable and fair. Stability means that it should enjoy sufficient support and be resilient enough to endure over a long period of time, and fairness means that there should be some mechanisms to ensure that supreme political power is not used entirely for the promotion of the interests of the powerful few, but should serve the interests of the entire population.
The problem is that stability and fairness may not always come together in the same package.
C o n s t i t u t i o n s i n t h e U S P R e g i o n
Before the countries of the USP region fell under the control of European governments- Britain, Australia, New Zealand, France and Germany - in the latter part of the nineteenth century, The European powers did not recognise the existence of any notion of fundamental principles binding the island communities together. In most cases the various island communities did not exhibit features of governance that the Europeans would have recognised as constituting nation states. The one exception was Tonga where in the mid- nineteenth century a ruler of great power and ability asserted his dominance over the islands of Tonga. He established a state supported by a written constitution which was promulgated in 1875, and which has remained in place ever since, even during the period 1900-1970, when Tonga was a protected state of Britain.
This is not of course to deny that there were at that time highly developed systems of governance and highly complex societies with their own distinct cultures, values and even systems of law and law making in place in the islands of the South Pacific, but simply that these were not of a form that the invading Europeans were prepared to recognise.
When the countries of the region, apart from Tonga, fell under the control of European governments in the latter nineteenth century, the controlling governments were determined to establish firm control throughout the country. They enacted written laws to provide the fundamental principles of the colonies and protectorates that they established. In Cook Islands, including Niue, and Samoa these fundamental principles were established by Acts of the New Zealand Parliament, in Papua New Guinea and in Nauru by Acts of the Australian parliament.
In Fiji, the Gilbert and Ellice Islands (now Kiribati and Tuvalu) and British Solomon Islands Protectorate, the laws establishing the state were enacted by the Queen and the British Privy Council in the form of letter patent and orders in council. In New Hebrides (now Vanuatu) the fundamental principles of the joint sphere of influence were established first in the Convention of 1906, and then in the Protocol of 1922 agreed to between the British and French governments. These laws establishing the fundamental features of the systems of government in the controlled countries are sometimes described as constituent laws.
As the countries approached independence it was obvious that the previous constituent laws would not be appropriate for their new condition and status as independent or self-governing countries, and in all countries it was decided that written Constitutions should be enacted to provide the fundamental principles for the soon-to-be independent or self-governing states. It was also decided that, unlike the situation with the earlier constituent laws, there should be extensive consultation with the leaders of the respective countries
In Nauru and Samoa, and also in Papua New Guinea, these constitutions were enacted by a Constitutional Convention, consisting of members of the legislative body and, in the case of the first two, some other members of the community. In Cook Islands and Niue the written Constitutions were enacted by Acts of Parliament of New Zealand- Cook Islands Constitution Acts 1964 and 1965 , and Niue Constitution Act 1974 after extensive consultation had been held in the two countries by New Zealand constitutional advisers. In Fiji, Kiribati, Tuvalu and Solomon Islands the written Constitutions were enacted by orders-in-council
K e y T e r m s a n d P h r a s e s
Use the online dictionaries to make sure that you clearly understand the meaning of these terms. Where they don't appear in a legal dictionary try a political science or social science dictionary.
Constitutional government
Government appointed and operating according to the terms of an existing constitution.
Constitutional monarchy
A system in which the powers of an hereditary monarch are limited by the terms of a constitution that provides for day to day governance by a parliament or other representative body.
Monarch A^ head^ of state^ appointed^ on the basis^ of^ family inheritance (king Queen).
Democracy A^ system in which power^ is believed to derive^ from the consent of the people and where institutions and practices are in place to ensure that government is ultimately controlled by the people, usually through a system of Elections. A process for testing popular consent for government through allowing citizens to vote for against particular parties and/or candidates.
Liberal An influential ideological tradition that places overarching importance upon the liberty of the individual.
Constitutionalism A theoretical system that asserts that government regulated by the rule of law and by constitutional practice is the most desirable form of government.
Letters patent Specific legal documents created in colonial times to establish an office under the crown.
Order in Council An order made by the executive government (cabinet ministers) with the assent of the head of state, of less legal status than parliament-made legislation.
Rule of law The idea that law should be a process that binds all persons including those in powerful positions.
Social contract A^ story^ used^ to explain the origins^ of^ centralised authority and to assert that at some imagined point in time there was an act of consent by the governed.
Sovereignty A^ concept^ that describes^ the power that a^ system^ of centralised authority has to make laws for a particular place or country.
State Another word for country or nation.
