Tinkering with the constitution

The right to rule

I begin with a brief description of our beliefs about governmental authority, seeking to unpack the character of such authority as distinguished from certain other considerations about government, and then to draw in outline its relationship to our constitution.

To believe that our government has the authority to govern is for us to believe that it has the antecedent right to do so – that is, the ‘right to rule’. We are concerned here not with the authority of government to pass laws, issue and apply policies, make and enforce decisions, and so on – that is a second-order consideration relating to the lawfulness, rationality, propriety or otherwise of governmental action – but rather with the prior matter of the right of government to be our government. Furthermore, to believe in this right to rule is also to believe that we have the counterpart obligation (or duty) to acknowledge that authority and to obey or abide by its actions. Now, it is true that, as expressed, this is simply a logical connection between beliefs; however, it is, I think, the widespread belief that our government has this authority and that we have this obligation that is, in practice, at the heart of the relationship between government and the governed in our state. Importantly, in setting the terms of the relationship in this way, we can be seen to be properly respecting the moral standing of all of us as the governed, and we do this by recognising our attribution of authority to government as the source of its authority while also grounding our obligation to submit to its authority in that attribution.

So, what is the character of this authority that we believe our government has? We can approach an answer to this by first showing what such a belief does not entail. Here, believing in the authority of government – its right to rule – does not derive from our recognising its power to govern or our approval of what it does in governing. ⁴ While considerations about the power and activities of government are undoubtedly important, they are logically distinct from belief in the authority of government to govern. To illustrate this, consider the following:

The effectiveness of a government in compelling submission to its laws, policies, decisions and so on may result in obedient behaviour among the governed, but that power does not, of itself, give it authority to govern in that or any other way, nor does it give rise to a right to be obeyed. Conversely, a government that lacks the power to enforce a law does not, on that basis, lack the authority or right to have prescribed that law or to enforce it. In such cases, might does not make right.

The right to rule is an antecedent right – it is the ground of authority for the power and activities of government and is therefore to be distinguished from, and is logically prior to, the exercise of power by government or the authority of specific laws, policies, decisions and so on of government.

Now, in response to the question I posed earlier, what I contend (and I am not alone here) ⁵ is that government has the authority to govern – its right to rule – by virtue of what is believed about its constitution; that is, if it is constituted in a shape (democracy, monarchy, oligarchy, etc.) and manner (elections, representation, hereditary or divine succession, etc.) that is believed to be authoritative. To put this another way, just as the authority of a statute rests not in its terms or our approval of them, or the power of government to enforce them, but, rather, in our acknowledgement of the authority of its enacted form and of the procedure in which it is enacted (a form and procedure known to us that we recognise as authentic and authoritative), so government has its authority in our acknowledgement of the authoritative shape and manner in which it is constituted. Where government is thus constituted in such a way that we believe it to be authoritative, there is every reason for us to acknowledge that authority (and with it, our counterpart obligation to obey government and to comply with its laws) and to believe that government so constituted is legitimate.

On the view that I am offering, then, believing in the authority of government to govern us involves reflecting on how our government is, in fact, constituted – in shape and manner – and whether and to what extent that accords with our beliefs about how government should be constituted to be authoritative. For it is surely the case that the most substantial expression of our beliefs in this regard are the features of a constitution (real or imagined) in all its detail. Next, I wish to turn to some general beliefs that have commonly been put forward as reasons for believing in the authority of government that is constituted in a certain way.

Some general beliefs about the constitution of government

Among the various general beliefs about the authority of government that have been explored and propounded over millennia (such as the divine endowment of kingship, the ‘natural’ qualities of a ruler (such as blood, virtue or wisdom), the historical destiny of a ruling class, the ‘right’ of conquest or other expression of power, etc.), there are two beliefs – not mutually exclusive – that conform closely to the type of belief I have sketched in this article, but that also, I think, enjoy general currency and broad support in our state:

that the shape and manner in which government is constituted should not be alien to the governed – in other words, that the governed should only be subject to a government they identify as their own; and

Now, both of these beliefs are of very broad principle. They do not tell us how to constitute government, for they require no particular constitutional shape or manner of formation. However, they do give pointers to what is sufficient to establish the belief that government is authoritatively constituted, that it has the right to rule. The first belief – that government should recognisably be our government to be authoritative – involves reflecting on (among other things) the nature of our state as an association of peoples with a shared history, specific associational features and a plurality of cultures, interests and beliefs, and exploring whether and to what extent the shape and manner in which our government is constituted is adequately reflective of those circumstances and representative of that association such that we believe it to be authoritative. In this reflective vein, we can see that our acknowledgement of authority and obligation in respect of government goes hand-in-hand with our sense of identity, belonging, connectedness, allegiance and so on.

By contrast, the primary concern of the second belief – that government requires our consent to be authoritatively constituted – has been how such consent could plausibly be given. Many contenders have been offered up over time, including as an original founding agreement that is either postulated (a ‘social contract’) or historical (say, the Treaty of Waitangi), or as granted on specific or periodic occasions through formal procedures (such as elections of office-holders and representatives, or in reciting an oath of allegiance), or in the continuous tacit acknowledgement of the governed through obedience to laws, active participation in society and so on. ⁷ Whatever the form of consent believed to ground authoritative government, the assessment to be made here is whether that consent is adequately manifest in the shape and manner in which our government is constituted such that we believe its authority or right to govern is properly grounded in that consent.

Now, these general beliefs (or any others about the authority of government) need not be held in the same way or on the same terms by the governed. It is enough for the stability and cohesion of a state that, whatever their precise form and substance, beliefs in the authority of government to govern simply are commonly held. Moreover, where it is the case that government is widely acknowledged to be authoritatively constituted in accordance with beliefs of the general sort that I have been discussing, then there is also an important sense among the governed of being ruled by and for themselves, creating and sustaining a satisfactory ‘illusion of unity’ between government and the governed. Yet, this is not the end of the matter. In the final section, I wish to highlight some remaining features of the beliefs that I have been talking about and how all of this connects to the current investigation into our constitutional arrangements.

Reviewing our constitution

What I have sought to offer in this article is a signpost to a profound way to view our constitution, a view that explores beliefs about the antecedent authority of a government to govern – its right to rule – and how those beliefs are or should be embodied in constitutional shape and manner of formation and expressed or reflected in constitutional detail. It demands an investigation into our constitution not just in terms of a written document setting out the offices, functions, powers and procedures of government and enshrining ‘fundamental’ rights (a ‘Constitution’), or a collection of such documents, but in terms of the whole shape, manner and detail in which government is or may be constituted. This takes us beyond the familiar legal sources of authority for government (‘fundamental’, ‘supreme’ or otherwise) and into the realm of moral and political thought proper. Furthermore, it brings into play a variety of beliefs that seek to provide coherence to, and justify or legitimise, the relationship between government and the governed in our state.

Some of these beliefs have long been part of our constitution, while others have found their way into it more recently. They appear in the constitutional sources not so much as expressly laid down (although they can be), but as captured in terms and procedures such as the idea of freedom inherent in the writ of habeas corpus, and as denoted in the overall constitutional shape of those sources that comprise our constitutional monarchy and parliamentary democracy.

Finally, I wish to touch briefly on some other features of these beliefs that, to me, reconcile the apparent inconsistency between (i) the prevailing beliefs we already widely hold about the authority of our government to govern as embodied in our generally accepted constitutional arrangements, and (ii) the need for the current investigation into those arrangements. In this regard, there are three such features to observe:

Our beliefs about the authority of government can and do change over time. The rise and influence of the international human rights movement during the 20th century and, in particular, after 1945 is a prime example of this, culminating, perhaps for now, in Article 21(3) of the Universal Declaration of Human Rights and the demand for its form of political participation to be met in states where it is not so met. ⁸ On the view that I am offering, then, the current acceptance of the constitution of our government depends on whether it fits with our current beliefs about how it should be constituted to be authoritative.

It is, I think, the combination of these and other uncertain footings – including the vagueness or generality of our beliefs (however deeply felt) about the authority of government in terms of actual constitutional detail – that explain why we are having a constitutional ‘conversation’ at all and why we tinker constantly with our constitution in practice. We seek an amendment to constitutional laws here, and the addition of a new constitutional source there, in what is, in reality, an unending quest to give adequate expression to our beliefs about government’s right to rule with the aim of constituting a properly authoritative government or enhancing its authority in a way that we can accept. In doing so, we (rightly) respect our moral standing as the governed in our relationship with government. For we recognise that a government so constituted not only reflects and embodies many of our cherished beliefs, but also enjoys the attribution of its authority from us and thereby warrants our respect and submission.

It is in this spirit, then, that I consider we undertake our latest investigation into our constitutional arrangements. However, I will end by sounding a prudential note (echoing Michael Oakeshott) as my contribution to the constitutional ‘conversation’ we have embarked on. Where there is widespread consensus that our current constitution is, in large part, settled sufficiently for our government to be acceptably authoritative, then tinkering with specific constitutional detail is to be preferred over wholesale changes. ⁹ Where, however, it is widely believed that there is a gap in our constitution that should now be filled, ¹⁰ then we have a genuine adventure before us in exploring the intimations of what is already present in our history and society to see where its edges might be and how best to fill it by authoritative constitutional expression. ¹¹