Common Law Constitutionalism under a Codified Constitution

Abstract

This essay was written to mark the retirement of Dame Sian Elias, as Chief Justice of New Zealand. It examines the meaning and application of common law constitutionalism in common law states where the Constitution is codified. It argues that there are principles and practices associated with the common law that are revealed or assume enhanced significance when a codified constitution is brought into play. These justify inclusion in an extended conception of common law constitutionalism. The essay examines these features at the point of constitution making, in relation to the substance of codified constitutions and through the lens of constitutional interpretation. Most of the distinctive features of common law constitutionalism in this setting are driven by the characteristics of codified constitutions: the sources of legitimacy, the accoutrements of status and the need for integrity over time. These differences are significant for comparative purposes. Equally significantly, however, they need to be understood in moving from uncodified to codified constitutional arrangements. The essay uses Australia as a case study throughout, with the usual disclaimers about the limitations of a single case study in a project of this kind. Australia has enough in common with other common law states with codified constitutions to illustrate the argument at a level of generality. The unusually thin Australian Constitution has one other advantage for present purposes as well; it enables a question to be raised about whether and how theories of common law constitutionalism developed for common law states without codified constitutions can thicken or supplement a codified constitution of the kind that exists in Australia.