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
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.
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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