3
1 The Purposes of Constitutional
Law
1.1 Introduction
Constitutional law regulates the government of a state. It is concerned
with the struggle between rival contenders for power and the question of
what limits should be imposed on the government. Sir John Laws (1996)
described a constitution as 'that set of legal rules which governs the
relationship in a state between the ruler and the ruled. All constitutional
questions are about the laws which identify the ruler, define the nature and
extent of their power and set the conditions for its exercise.'
In this introductory chapter I shall draw attention to some themes
which pervade constitutional law. They centre upon the conflict between
communitarian goals and individual freedom. Constitutional law makes it
possible for us to act collectively by co-ordinating the wishes of many
individuals, for example by voting and representative mechanisms. It also
protects the people against abuses by those to whom we entrust power.
Two further themes, the political and customary nature of our unwritten
constitution and the absence in English law of a distinctive concept of the
state, will be introduced in Chapter 2. The overarching theme of the book
is the need for a constitution to respect disagreements.
Broadly speaking, law comprises rules of human behaviour imposed in
accordance with some form of organised system. The distinguishing
feature of the law of the state, as opposed for example to those of clubs,
churches and other voluntary bodies, is that it authorises a minority within
the community to impose their will by force; the need to justify this being a
pervasive issue.
The political system can be anything that the dominant groups in the
community manage to impose on the people by appeals to morality or self-
interest or by means of violence, charismatic leadership, bribery or reliance
upon apathy. It might be that, in the interests of survival, our biological
nature divides us into leaders and led. Many if not most of us are content
to be led, obtaining our gratification, once our basic needs have been
satisfied, by following others. A minority are leaders who satisfy their need
for gratification by seeking the admiration of others, by imposing their
personalities on others, by organising others or in creative enterprises. It is
by and for this minority that constitutions are constructed. Bagehot (1925,
p. 9) said of the English (sic) Constitution that '(i)t is the dull traditional
habit of mankind that guides most men's actions, and is the steady frame
in which each new artist must set the picture that he paints'.
J. Alder, Constitutional and Administrative Law
© John Alder 1999
4 General Principles
Constitutions can be broadly classified according to Aristotle's models
of monarchy, aristocracy (government by the 'best') and democracy
(government by the people). These models do not exist in pure form. Even
a dictator needs supporters and modern constitutions mix the models in
different permutations. The UK constitution claims to be democratic as it
is based upon the 'consent' of the people. The eighteenth century radical
Thomas Paine, exiled for denying that Britain has a constitution, argued
that a constitution must be imposed on government by the people.
However, the people cannot act without a framework of procedural rules
which enables them to co-ordinate their efforts, these rules being made by
elite constitution makers. Indeed Lord Hoffman (1999), referring to
political parties, described the UK constitution as 'aristocratic'.
1.2 Three Constitutional Models: Individualism,
Liberalism and Communitarianism
I shall outline three influential models of government which I suggest
embody the fundamental themes which dominate constitutional law.
These are firstly the individualistic model proposed by Thomas Hobbes
(1588-1679), secondly the 'rights' model of John Locke (1632-1704) which
is widely regarded as a liberal model and thirdly the democratic
communitarian model of Jean-Jaques Rousseau (1710-1788). None of
these models can be applied directly to a real life system of government
and elements of all three can be combined in different ways. The UK
constitution has been influenced by each of them in different ways at
different times and the core ideas embedded in them continue to dominate
debate.
A convenient starting point is the emergence of the concept of the
independent nation state in the sixteenth century. The state emerged for
military reasons in order to protect communities against foreign invasions
but eventually displaced the Church and local community structures as the
source of general political authority. The rise of the state corresponded to
the beginning of the Enlightenment which reached a high point in the late
eighteenth century and which still provides the dominant mode of thinking
in European societies. Enlightenment or 'modernist' thinking regards
reason, progress and individual freedom as the key to human happiness,
an idea congenial to the common law which claims to be based on reason
but whose origins lay in the authority of the royal courts.
One task of the Enlightenment was to justify state power by reason. The
experience of the twentieth century in which states use technology as a
means of mass extermination and set up regimes designed to subjugate
communities by terror may have damaged the credibility of the
'enlightenment project' and in recent decades there has been a reaction
against the supremacy of reason and indeed the validity of the state. This
has taken the form of self-consciously 'post-modern' and 'critical'
approaches to law which have emphasised law as a propaganda