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Original Article
Tinkering with theconstitution
John Buick-Constable
AbstractFor the third time since the new millennium, New Zealand is undertaking a significantinvestigation into its constitutional arrangements. The latest development was the release inDecember 2013 of the final report of the Constitutional Advisory Panel established by theNew Zealand government to consider constitutional issues. Among the report’s recom-mendations is the invitation for all of us to ‘continue the conversation about our consti-tutional arrangements’. This article seeks to contribute to that conversation by drawing alink between our beliefs about the authority of government – its right to rule – and theshape and manner in which our government is constituted. It is contended that this providessome much-needed context, revealing why the conversation is important and offering anopportunity to set some direction for continued dialogue in terms of exploring our beliefsabout governmental authority and how those beliefs are or should be embodied in constitu-tional detail.
KeywordsAuthority, constitution, government, moral and political beliefs, New Zealand
A modern state, then, emerged with the appearance of an office of rule and the acknowl-
edgement of its authority . . . and since authority is always an endowment by those whom it
obligates . . . nowhere [has a state] survived without change. Such changes make up a state’s
constitutional history which, at bottom, is the history of a succession of beliefs about
authority.
Michael Oakeshott, ‘Talking Politics’, in Michael Oakeshott, Rationalism in Politics
and Other Essays (Indianapolis, IN: Liberty Fund, new and expanded edn, 1991), pp.
442–443.
Corresponding author:
John Buick-Constable, Ministry of Business, Level 5, 86 Customhouse Quay, Wellington, 6011, New Zealand.
Email: [email protected]
Political Science1–7
ª The Author(s) 2014Reprints and permissions:
sagepub.co.uk/journalsPermissions.navDOI: 10.1177/0032318714557141
pnz.sagepub.com
For the third time since the new millennium, New Zealand is undertaking a significant
investigation into its constitutional arrangements.1 This may come as a surprise to some,
but it should not. Our state is certainly no stranger to constitutional change. Of the more
than 80 sources identified as currently comprising New Zealand’s constitution, at least
half of them post-date 1970, and, of those, more than half again post-date 1990.2 This, of
course, takes no account of the myriad updates and amendments of those sources that
occur on an almost continuous basis.
What explains this incessant (and seemingly accelerating) need to revisit our con-
stitutional arrangements? Why do we tinker constantly with our constitution? The
answer, I think, rests in an understanding of what we believe about the authority of
government, and how these beliefs influence what we may consider as proper consti-
tutional arrangements for government.
In this article, I wish to say something about such beliefs and their relationship to our
constitution. Little of what I say here is novel,3 but I consider that this account gives
some much-needed context to the latest investigation into our constitutional arrange-
ments with the hope that what I point to here offers something like a way forward in our
continuing constitutional ‘conversation’.
1. For full details of the current investigation, see: www.ourconstitution.org.nz and
www.cap.govt.nz. The earlier investigations were the Building the Constitution conference in
2000 (subsequently published as Colin James (ed.), Building the Constitution (Wellington:
Institute of Policy Studies, 2000)), and the inquiry of the Constitutional Arrangements
Committee, a parliamentary select committee established in 2004 to review New Zealand’s
constitutional arrangements (whose report was presented to the House of Representatives in
August 2005).
2. See Matthew S.R. Palmer, ‘What Is New Zealand’s Constitution and Who Interprets It?
Constitutional Realism and the Importance of Public Office-Holders’, Public Law Review,
Vol. 17 (2006), p. 133. For a more conventional account of the major sources of our con-
stitution, see Sir Kenneth Keith, ‘On the Constitution of New Zealand: An Introduction to the
Foundations of the Current Form of Government’, in Cabinet Manual (Wellington: Cabinet
Office, Department of the Prime Minister and Cabinet, 2008), pp. 1–2. However, I note here
Professor Joseph’s salutary reminder that ‘[u]nder an uncodified constitution, constitutional
laws are indistinguishable from ordinary laws, leaving no obvious ‘‘start’’ and ‘‘end’’ points
to the study of public law’, in Philip A. Joseph, Constitutional and Administrative Law in New
Zealand (4th edn) (Wellington: Brookers, 2014), p. 25.
3. Much of what follows is heavily indebted to the writings of the English philosopher Michael
Oakeshott. For a helpful introduction to his mature thinking on these and other themes, see
Michael Oakeshott, ‘Talking Politics’, in Michael Oakeshott, Rationalism in Politics and
Other Essays (new and expanded edn) (Indianapolis, IN: Liberty Fund, 1991), p. 438. Support
for what follows may also be had from another English philosopher, Sir Bernard Williams, in
his concept of the legitimacy of the state as what ‘makes sense’ to its citizens, here and now, as
an authoritative order and structure. See, for example, Bernard Williams, ‘Realism and Mor-
alism in Political Theory’, in Bernard Williams, In the Beginning Was the Deed: Realism and
Moralism in Political Argument (Princeton, NJ: Princeton University Press, 2005), pp. 1–17.
2 Political Science
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 law-
fulness, 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 author-
ity 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.
� Likewise, if I should disapprove of a new law or fail to comply with it on such
grounds, that is not a denial of its authority as law nor a denial of the authority of
the government that prescribed it.
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
4. For a profound and rigorous account of the concept of authority on these terms, see Michael
Oakeshott, ‘The Vocabulary of a Modern European State’, Political Studies, Vol. 23, Nos 2–3
(1975), pp. 198–210.
Buick-Constable 3
to, the exercise of power by government or the authority of specific laws, policies, deci-
sions 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 pro-
cedure 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 embodies 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
� that the shape and manner in which government is constituted should in some way
be consented to by the governed.6
5. See, for example, Michael Oakeshott, Lectures in the History of Political Thought (Exeter:
Imprint Academic, 2006), pp. 429–430.
6. For an important historical and philosophical treatment of these and other beliefs about the
authority of government to govern, see Oakeshott, Lectures in the History of Political
Thought, pp. 426–468. See also Michael Oakeshott, ‘The Concept of Government in Modern
Europe’, Collingwood and British Idealism Studies, Vol. 12 (2006), p. 17.
4 Political Science
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, spe-
cific 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 acknowl-
edgement 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 ade-
quately 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
7. The classic consent theories of this nature are those of Hobbes, Locke and Rousseau. For a
recent attempt to construct a consent theory in terms of active participation in the institutions
of the state, see Peter J. Steinberger, The Idea of the State (Cambridge: Cambridge University
Press, 2004), pp. 212–222.
Buick-Constable 5
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 reflect our constitutional monarchy and par-
liamentary 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:
1. 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.
2. Such beliefs cannot be proved ‘true’ or ‘false’; they are, instead, pragmatic,
simply giving us reasons for attributing authority to government by virtue of the
shape and manner in which it is constituted and the extent to which we find this
persuasive.
3. Such beliefs can and do overlap and conflict with one another.
It is, I think, the combination of these and other uncertain footings – including the vague-
ness 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
8. Article 21(3) reads: ‘The will of the people shall be the basis of the authority of government;
this will shall be expressed in periodic and genuine elections which shall be by universal and
equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’
6 Political Science
‘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 author-
itative 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
Author’s note
The views expressed in this article are personal to the author and do not represent or reflect the
views of the Ministry or the Crown
9. Take, for example, our parliamentary system of government, which is not, I think, seriously
questioned; however, there may be interest in a continuing conversation about some of its
details, such as the length of term of our Parliament. See the perspectives and reflections on
this at: http://www.ourconstitution.org.nz/store/doc/FR_Full_Report.pdf
10. In this regard, some may wish to pursue a formal place for the Treaty of Waitangi in our
constitutional arrangements beyond references to the Treaty and its principles in some of our
constitutional sources. See the perspectives and reflections on this at: http://www.ourcon-
stitution.org.nz/store/doc/FR_Full_Report.pdf
11. For his account of political activity as the ‘pursuit of intimations’, see Michael Oakeshott,
‘Political Education’, in Oakeshott, Rationalism in Politics and Other Essays, p. 43.
Buick-Constable 7
