The Case for Subsidiarity as a Constitutional Principle in New Zealand

Abstract

This doctoral thesis uses historical analysis, constitutional economics, and complexity theory to furnish positive and normative arguments for subsidiarity as a constitutional principle in New Zealand. The principle of subsidiarity is the hypostasis of the Treaty of Waitangi, both in its English and Māori texts. It is also evident in the thinking behind the New Zealand Constitution Acts of 1846 and 1852. This constitutional tradition has been occulted since the abolition of the New Zealand provincial system in 1876. Constitutional economics suggests an optimal limit to jurisdictional footprints (territories). This entails preference for political orders where sovereignty is shared between different cities rather states where capital cities dominate. The resuscitation of subsidiarity as a foundational element of our constitution holds the key to economic prosperity in a globalising world. Moreover, insights from complexity theory suggest that sustainability is a response to the ‘problem of scale’. It is a fitness trait that prevents highly complex systems from collapsing. The nation state is a highly complex system within which cities function as ‘attractors’. The collapse of such systems would ensue if there were strong coupling between attractors. Such coupling obtains under legal monism. Only subsidiarity can make this eventuality improbable. Understanding the ‘emergent properties’ of sustainability and the ‘selforganizing’ properties of subsidiarity entails a shift in policy emphasis towards the latter. The thesis recommends changes to the Constitution Act 1986 to reinstitute subsidiarity as a constitutional principle. New Zealand cities, in particular the Auckland supercity, would benefit from wider local autonomy under this vision. Nevertheless, constitutional change will have to start with public opinion, especially in relation to subsidiarity and its role in shaping the relationship between cities and the central government.