Unwritten Constitutionalism: A Study of the Principles and Structures That Inform New Zealand's Distinctively Unwritten Constitution

Abstract

A constitution is concerned with the legitimacy of public power. Liberal theories of political morality understand the legitimacy of a constitutional order in terms of those substantive values that inform representative democracy, the rule of law and fundamental human rights. The majority of modern nations seek to achieve these normatively desirable ends through reliance on a ‘written’ constitution. Such is the popularity of the written constitutional form that its key features — an authoritative commitment to substantive values, enforceable limits on public power, and formal entrenchment of the constitution — are the standards against which claims of constitutional legitimacy are measured internationally. New Zealand’s constitution is premised on a distinctive form of constitutional settlement. It makes some use of constitutionally significant text, but does not rely on an entrenched, constitutive document in the same way as a written constitution. This distinction has important implications for theories of liberal constitutionalism. While New Zealand purports to practise constitutionally legitimate government, the usual standards used to assess such claims are closely associated with the written constitutional form. This thesis theorises the New Zealand constitution in a manner that takes seriously its unwritten structure. It contends that the contemporary dominance of the written constitutional form risks obscuring the distinctive ways in which unwritten constitutions respond to the challenges facing modern liberal democracies. Once these distinctive characteristics are understood from the point of view of their own constitutional context it is possible to recast liberal constitutionalism in a manner that is sensitive to, and more appropriate for, an unwritten constitutional framework. Unwritten constitutions are capable of constraining without limiting, promoting stability without formal entrenchment, and allowing for governments to make meaningful commitments in the absence of an authoritative statement of constitutional principle. In short, unwritten constitutions provide for constitutionalism without text. Accordingly, an unwritten constitution may make a serious claim to constitutional legitimacy, but that claim must be judged on its own terms. Rather than relying solely on theories of constitutional legitimacy associated with the written constitutional form, New Zealand’s constitution establishes its legitimacy with reference to a distinctive but equally valid liberal model of ‘unwritten constitutionalism’.