Constitutional Settlement Research Articles

The British system of government and its historical development

The basic rules and implications of every state's system of government provide an authoritative and objective basis to guide and judge the actions of the state's decision makers, including courts. Christopher Taucar provides a detailed history of the British system's development from state power being exercised by centralized royal courts to its present-day distinct legislative, judicial, and executive bodies with diverse powers. The British System of Government and Its Historical Development fills a large and important gap in contemporary understandings of British legal and political history by providing a broad overview of a system that influenced political systems across the world. The main constitutional settlements are examined, including the development of parliamentary sovereignty, courts, and the common law, emphasizing the supremacy of law and natural law. Thus, the findings question the assumptions held by many contemporary scholars and judges by reaffirming the centuries-old view of the supremacy of law as an objective and external standard. The British System of Government and Its Historical Development argues that knowing this system is vital not only to our understanding of systems of government in Britain and elsewhere, but also as the basis to hold governments accountable to their most basic rules and imperatives.

Back to the future?: How May 2015 could be February 1974 all over again

If the latest opinion polls play out in the general election, argues John Curtice, the ensuing fracas of post‐election negotiations and the real prospect of a minority government filling Downing Street are likely to provoke serious debate about Britain's electoral system and wider constitutional settlement.

Class forces, transition and the Arab uprisings: a comparison of Tunisia, Egypt and Syria

This article intervenes into an ongoing debate on authoritarian regimes in the Arab world following the uprisings of 2011, in particular addressing the perceived failure of those uprisings to bring about “transition” to liberal democratic models. Drawing upon the method of comparative historical sociology used in seminal analyses of democratization and dictatorship in Europe, Asia and the Americas, the article seeks to explain the varying trajectories of the Arab Uprising states in terms of several structural factors, namely the balance of class forces, the relative autonomy of the state and the geo-political context. The article provides an empirical comparison of the cases of Egypt, Tunisia and Syria as points on a continuum of outcomes following the Arab uprising. The article mounts a critique of the absence of class analysis in mainstream transition theory and hypothesises instead an important role for workers’ movements in bringing about even basic elements of liberal democracy. The empirical comparison is shown to support this hypothesis, demonstrating that in Tunisia, the state where the worker's movement was strongest a constitutional settlement has been reached while Syria, the state with the weakest and least independent workers’ movement has descended into counter-revolution and civil war: the case of Egypt lying between these two poles.

Putting Political Constitutionalism in its Place

The question of the legitimacy of judicial review of legislative and to a lesser extent, administrative, action is a perennial theme in constitutional studies. However recent years have seen particular attention to this question in political theory, notably in the work of Jeremy Waldron and Richard Bellamy, who have provided robust normative defences of legislative supremacy in questions of constitutional design. Both of their approaches, however, through their insistence on ‘disagreement all the way down’, have come up against the challenge that their positions are ultimately self-defeating. This paper attempts to take up this challenge to theories of political constitutionalism by adding an additional layer of moral arguments to defend legislative supremacy through a minimal theory of legitimacy. As it relies on providing moral reasons for resisting a move from political to legal constitutionalism only in those jurisdictions where it is actually currently practiced, as opposed to a more general argument as to why political constitutionalism is the most legitimate form of constitutional design in constitutional democracies, it is therefore only a partial defence of political constitutionalism. However, given that the defences of political constitutionalism are self-defeating on their own terms, the paper concludes that this partial defence is the only feasible defence of political constitutionalism in debates in constitutional theory. As such constitutional settlements which already exercise legislative supremacy are the appropriate and exclusive context for theoretical arguments defending legislative supremacy.

Between the Constitutional Document and the Constitutional Settlement

Ten years ago, as the European Constitutional Treaty was made ready for signature, this journal was made ready for launching. Both events would take place at the end of October 2004. Our first issue was, of course, devoted to the Treaty. It broke down the document's substance into twenty-four key topics, each dealt with in turn by the members of the editorial and the advisory boards. From that first issue, the course of this journal would become inspired less by the document, however, than by the events concerning the constitutional settlement as it evolved for the Union.

A Need for ‘Truth’

The origins of the South African trc process, which made such a dramatic contribution towards opening up a new more inclusive political culture in post-apartheid South Africa, are usually found in the constitutional negotiations and settlement reflected in the Postamble of the 1993 Interim Constitution. This article starts from the apparent paradox that a secretive amnesty pact by political elites could have been responsible for a public truth process uncovering human rights violations in past political conflicts. It suggests that an alternative trc genealogy may rather be found in the public amnesty debate since mid-1992 that issued in a civil society-based proposal for a truth and reconciliation process. The ‘amnesty for truth’ compromise, conjoining the political elites’ concerns for amnesty with the human rights quest for a victim-based truth and reconciliation process, resulted in the incoherence of the actual trc process. The ambivalent legacy of the trc, shaped both by secretive elite political deals as well as by the quest for public truth in politics, still informs unresolved tensions in the Marikana Commission, and those between the Promotion of Access to Information Act and the controversial Protection of State Information Bill.

Devolution in the Round: Can Britain Continue to Muddle Through?

September's no vote in Scotland kept the United Kingdom intact, but raised once again the vexed question of Britain's ad hoc constitutional settlement. As the clamour for devolution reform grows, Alan Trench examines the debate across the UK.

Britain's Integration Debates

The quality of argument over constitutional settlements for Scotland and England has been low. On Europe, both sides need to offer positive, intelligent visions of the future, or risk a decision based on xenophobia rather than principle.

‘Royal supremacy restored?’ Scottish parliamentary independence in the Restoration era, 1660–88

SUMMARYThe constitutional settlement instituted by the Scottish Parliament in 1661–63 has traditionally been seen as a victory for the crown and a disaster for the parliamentary estates, since all of the hard-won constitutional gains introduced during the Covenanting era were largely swept away in favour of a complete reassertion of the king's prerogative powers. Nevertheless, despite the initial flourishing of royalist enthusiasm that marked the early Restoration period, in only a matter of years Scotland's political elites were once more engaged in battle with an authoritarian monarch and his increasingly dictatorial ministers of state. By as early as the mid-1660s, armed rebellion had erupted in the localities, religious non-conformity threatened to fragment the church, and rumbles of dissent within the parliamentary chamber itself were becoming more difficult to ignore. Can it be concluded, therefore, that it would prove impossible to imagine away the momentous events of the Covenanters' radical experiment in government, and that some of those constitutional and ideological principles survived into the Restoration era, effectively sowing the seeds of what would become the Revolution of 1689–90?

Constitutional Constraints, Organizational Preferences, and Qualitative Methods: A Replication and Reassessment of North and Weingast

Douglass North and Barry Weingast’s 1989 article, “Constitutions and Commitment” (“N&W”) is a landmark contribution to a plethora of social science literatures. The authors’ broad argument, namely that the balanced constitutional settlement following the 1688 Glorious Revolution in England was the primary cause of the Financial Revolution that followed, is a staple of countless comparative politics, economics, and legal studies courses. Yet despite the substantial attention that the study has garnered, to this author’s knowledge there exists no study that assesses the validity of N&W’s claims on their own empirical terms: namely, through a qualitative replication and examination of the sources upon which their contribution is based. Given recent drives to improve the transparency and replicability of qualitative research, particularly on the part of the American Political Science Association Council, this paper replicates, assesses, and extends N&W, and constructs a transparency appendix in accordance with the “Active Citation” standard to encourage independent engagement and assessment of the arguments made here. Part II provides an overview of N&W’s argument. Part III discusses alternative approaches/critiques of N&W, and argues that the most relevant alternative accounts emphasize the organizational preferences of Parliamentary interests following the Glorious Revolution over the constitutional constraints that play a more central role in N&W. Part IV details the results of this replication, discusses the potential problems of relying exclusively on secondary source evidence (as N&W do), and concludes that N&W correctly interpreted the evidence they extract. However, I find that no more than a couple of citations clearly speak to the causal mechanism underlying N&W’s constitutional constraints thesis. Part V uncovers further evidence, exclusively drawn from the very same secondary sources, to adjudicate between N&W’s hypothesis and the organizational preferences hypothesis introduced in Part III. I find that N&W’s sources more strongly support the organizational preferences theory, and thus conclude that while N&W do not commit errors of misinterpretation, they do engage in sins of omission. Finally, Part VI concludes.

The New Zealand Constitutional Review: Tradition and Change

What do we want a constitution to do? Do we want it definitively to settle deep political disagreements about our fundamental commitments as a nation or do we want it to set out a process out of which a settlement can evolve over time? The Constitutional Review terms of reference reflect 3 constitutional traditions which are often viewed as rival and conflicting : monism (governments hold plenary power between elections and any external controls on such power are antidemocratic); constitutional foundationalism (we already have a formal constitution in the Treaty of Waitangi which continues to speak to the form of our political institutions and to our law); and constitutional patriotism or cosmopolitanism (which appeals to universal rights and freedoms independent of history, time and place). The current unwritten constitution accommodates all three important traditions in a mutually limiting way. If we should decide to formalise further our constitutional arrangements we should learn from our experience of our unwritten constitution: our aim should not be to decide between these traditions in the abstract, or to resolve these issues one at a time, or to replace entirely our existing ordinary processes of constitutional change for a single high stakes constitutional settlement.

Constitutional Amendments and the Constitutional Common Law

Constitutions obsolesce rapidly, and must be updated over time to reflect changes in the polity's circumstances and citizens' values. What institution or process should be entrusted with the authority to do the updating? If periodic wholesale replacement of the constitution is infeasible, the plausible choices are the constitutional amendment process set out in Article V, flexible interpretation by judges under the banner of constitutional common law, or some mix of the two. Here I explore the question by comparing the relative merits of formal amendments and the constitutional common law as means of constitutional updating. I attempt to dispel some prominent arguments that unjustifiably privilege constitutional common law over the amendment process, and also attempt to sketch the empirical conditions under which either process proves superior to the other. My principal target is a standard academic view that I shall call "the generic case against constitutional amendment." On this view, there are good general reasons to reject, or to indulge a presumption against, any proposed amendment. Among these reasons are the following claims: it is bad to "tamper" with the Constitution; the Constitution should not be "cluttered up" with amendments that will "trivialize" its majesty; constitutional amendments are "divisive" or "polarizing"; constitutional amendments may have bad unanticipated consequences; and constitutional amendments diminish the coherence of the constitutional text or of judicially-developed constitutional doctrine. Something like this view has become the conventional wisdom in the legal academy, following explicit arguments by Kathleen Sullivan and others. I argue that the generic case against constitutional amendment fails. The generic case rests on a nirvana fallacy that implicitly contrasts a jaundiced view of the amendment process with a romanticized view of common law constitutionalism. The real alternative to constitutional amendment is flexible judicial interpretation that updates the Constitution over time - a practice that can also be seen as tampering with or trivializing the Constitution, that is at least as polarizing or divisive as constitutional amendment, that equally risks bad unintended consequences, and so on. Once we have dispelled the nirvana fallacy underlying the generic case against amendment, constitutional updating is seen to pose a comparative institutional question. Constitutional amendment, on the one hand, and constitutional common law, on the other, are alternative institutional processes for managing the inevitable updating of constitutional law over time. Under what circumstances might one process or the other prove superior? What institutional considerations, or variables, determine their relative performance? I consider the strengths and weaknesses of each process: relative to common-law constitutionalism, the amendment process is less focused on the facts of particular cases (both for good and ill); puts less weight on the views of past judges (both for good and ill); allows for the participation of decisionmakers from a broader range of professions and backgrounds (both for good and ill); produces more enduring constitutional settlements, albeit at higher initial cost; and trades the benefits of flexibility for the benefits of rigidity. Amendments show to best advantage, relative to common-law constitutionalism, where the constitutional changes in question involve large value choices as opposed to technical improvements in the law, where constitutional change must be systemic and simultaneous rather than piecemeal, and where irreversible change is more valuable than reversible change.

Political morality and constitutional settlements

This paper presents a way of thinking about how to respond to the pluralism of modern societies that avoids any commitment to contractualist norms of political justification. The argument developed appeals to the notion of a constitutional settlement. Constitutional settlements are complex on-going social practices that both express certain values to which political societies are committed and establish procedures for resolving disputes among members of these societies. As such, they are a product of both moral commitment and the balance of power. The paper shows how constitutional settlements relate to issues of stability and non-subjugation in politics, and explains how they can ground a distinction between justice and legitimacy.

Royal Agency and State Integration: Ireland, Wales and Scotland in a Monarchical Context, 1840s–1921

This article assesses the utility of the British monarchy as a hegemonic institution consolidating the British state from the mid- nineteenth to the early twentieth centuries. It does so by examining its relationship with the ‘Celtic’ regions—Ireland, Wales and Scotland. It was a relationship that fluctuated over this period. While a close personal as well as constitutional relationship existed between the monarchy and Scotland during the reign of Queen Victoria, as against her more distant—even antagonistic at times—relationship with Ireland and Wales, the personal dimension to monarchical allegiance underwent significant change under Edward VII and George V, with Ireland and, to a lesser extent, Wales, a closer focus of royal attention as these regions apparently posed serious threats to state stability in the early twentieth century. The article demonstrates how the monarchy's relationship with the ‘Celtic’ regions was shaped by a variety of interacting factors—historical, socio-economic, constitutional, political and personal—that illustrated its strengths and weaknesses. Thus a combination of reform and royal conciliation could function to unite Ireland with Scotland and Wales in defence of King and country in 1914, while the troubled post-1916 period posed problems royal influence had greater difficulty addressing. Nevertheless, the monarchy was a central institution in the constitutional settlement of 1921, which served to maintain, if in changed circumstances, its relationship with the three ‘Celtic’ regions.

Crisis in Mali: Ambivalent Popular Attitudes on the Way Forward

This article asks what Malians think about their country’s political crisis, including its causes, status, and possible solutions. An Afrobarometer survey of public opinion conducted at the end of 2012 finds the electorate in an apprehensive and ambivalent mood. Malians express declining faith in democracy as well as considerable (but diminishing) trust in the army. In a sign of democratic resilience, however, a large and broad majority continues to believe in elections as the best way to reconstitute a government. But only in the context of a stable and intact state – with an inclusive constitutional settlement, trustworthy civilian institutions, and engaged citizenry – will Mali be ready again for routine presidential and legislative elections.

Europe Against the Left? On Legal Limits to Progressive Politics

The EU »economic constitution« systematically biases EU policy making in a neo-liberal direction. Historically speaking, this was not the intent of the EU founding fathers. The original constitutional settlement of embedded liberalism was significantly redefined in the next major revisions of the Rome Treaty. The neo-liberal foundations of the single market and the EMU have imposed real and significant institutional constraints for progressive policy making. However, the role of the European Left was crucial in this alteration of the EU constitutional order. Despite the strong neoliberal consensus among the key political actors of that time, such a change would have not be possible without the Left' retreat towards »centreleftism «, particularly in France. Furthermore, while constraints of the EU economic constitution are significant, we should avoid the »naturalization« of the EU project. The European Left, while in power, failed to leave its distinct imprint on the EU economic constitution. The Left policy agenda remained firmly embedded in the logic of the nation state. The euro crisis pushed these developments even further and, for the first time in the EU history, explicitly challenged the constitutional balance of the EU legal order. The new Austerity Union, a project in the making, profoundly altered this constitutional balance.

Europe Against the Left? On Legal Limits to Progressive Politics

The EU »economic constitution« systematically biases EU policy making in a neo-liberal direction. Historically speaking, this was not the intent of the EU founding fathers. The original constitutional settlement of embedded liberalism was significantly redefined in the next major revisions of the Rome Treaty. The neo-liberal foundations of the single market and the EMU have imposed real and significant institutional constraints for progressive policy making. However, the role of the European Left was crucial in this alteration of the EU constitutional order. Despite the strong neoliberal consensus among the key political actors of that time, such a change would have not be possible without the Left' retreat towards »centre-leftism«, particularly in France. Furthermore, while constraints of the EU economic constitution are significant, we should avoid the »naturalization« of the EU project. The European Left, while in power, failed to leave its distinct imprint on the EU economic constitution. The Left policy agenda remained firmly embedded in the logic of the nation state. The euro crisis pushed these developments even further and, for the first time in the EU history, explicitly challenged the constitutional balance of the EU legal order. The new Austerity Union, a project in the making, profoundly altered this constitutional balance.

PREROGATIVE POWERS: NEW LABOUR'S FORGOTTEN CONSTITUTIONAL REFORM?

PREROGATIVE POWERS: NEW LABOUR'S FORGOTTEN CONSTITUTIONAL REFORM?

On Dealing with Euroscepticism

AbstractThe article examines if and, if so, why and how political parties opposing the European Union have thrived. It looks at the role of national parliaments and national media in failing to engage convincingly with the European dimension of politics, and asks why the forces of European federalism have been so relatively ineffective. By analyzing the tensions between national and European political parties especially in the conduct of elections to the European Parliament, the article traces the rise of the nationalist forces within the EP and assesses their impact on the legislative and other work of the institution. It concludes by proposing measures to tackle the nationalist challenge to European unification, including more differentiated forms of integration, more direct democracy, the development of federal political parties and the constitutional settlement of a federal union.

The Secularisation of the British Constitution

In recent years, the relationship between law and religion has been subject to increased scholarly interest. In part this is the result of new laws protecting religious liberty and non-discrimination, and it may be that overall levels of litigation have increased as well. In all this activity, there are signs that the relationship between law and religion is changing. While unable to address every matter of detail, this article seeks to identify the underlying themes and trends. It starts by suggesting that the constitutional settlement achieved by the end of the nineteenth century has often been overlooked, religion only appearing in the guise of inadequately theorised commitments to individual liberty and equality. The article then considers the role of multiculturalism in promoting recent legal changes. However, the new commitment to multiculturalism cannot explain a number of features of the law: the minimal impact of the Human Rights Act 1998, the uncertain effect of equality legislation, an apparent rise in litigation in established areas of law and religion, and some striking cases in which acts have been found to be unlawful in surprising ways. In contrast, the article proposes a new secularisation thesis. The law is coming to treat religions as merely recreational and trivial. This has the effect of reducing the significance of religion as a matter of conscience, as legal system and as a context for public service. As a way of managing the ever-deepening forms of religious diversity present within the United Kingdom, such a secularisation strategy is implausible.1