09 April 2014

ARTICLE: Sir Geoffrey Palmer QC on The hazard of making Constitutions: some Reflections on Comparative Constitutional Law

The Hazard of making constitutions: some reflections on Comparative Constitutional Law
Roles and Perspectives in New Zealand Law: Essays in Honour of Sir Ivor Richardson, David Carter and Matthew Palmer, eds., 2002 (Victoria University of wellington Legal Research Paper Series Palmer Paper No. 4) by Geoffrey Palmer QC, Victoria University of Wellington
Email: geoffrey.palmer@vuw.ac.nz 

Abstract:
The organisers of this Conference invited the author to contribute a paper on making constitutions, which drew on his perspectives as a lawyer, academic, and former politician. A number of the observations flow from his experience practicing exclusively in the field of public law, of dealing with governments on a variety of issues on behalf of clients and seeing, on a daily basis, the subtleties, complexities, and mutations that occur constantly within the New Zealand system of government. The second strand of the paper comes from teaching comparative constitutional law in the United States of America, concentrating upon a comparison of the Westminster system and congressional government, or in the more modern characterisation, presidential government as practised in the United States. The degree of suspicion of State power and the manner in which it is exercised is one of the eternal themes of constitutional law in all countries. There are some wonderful harmonies and dissonances between the United States system and the Westminster system. These two systems are the competing model for emerging nations to emulate, at least to some degree, when approaching the task of constitution building.

The paper considers matters such as superior law constitutions, constitutional protection of fundamental rights, constitutional design, and different constitutional examples in the South Pacific. Outcomes do not necessarily flow from constitutional structures, but what they do result from is frequently a mixture of so many variables of such complexity that they cannot be effectively calculated. Economic factors, resources, geography, demography, and history are all likely to be as influential in shaping outcomes as a constitution. Law is a subset of the social system. Social and political conditions determine the law, particularly constitutional law, rather than the other way around. But New Zealand could do with some self-reflective comparison. A comparative perspective may be one way of distancing ourselves from our own dominant legal consciousness. If comparative constitutional law does anything, it forces the analyst to think more deeply about his or her own domestic orthodoxies.

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