Constitutions Without Faith: The Good, the Bad and the Weak
by Philip Jones
Ecclesiastical law is the law which regulates the administration of the Christian religion. It is a manifestation of the state’s acceptance both of (1) the Christian religion and (2) its own duty to administer that religion to its subjects.
Modern secular states, of course, tend to distance themselves from religion, regarding it as a private matter. Yet it is easier to reject religion as the source and object of political authority than to decide on what ideology, ‘values’ or religion-substitute to put in its place.
In his famous work Introduction to the Study of the Laws of the Constitution (1885), Albert Venn Dicey identified certain conventions of the British Constitution, which he defined as ‘a body … of constitutional or political ethics’ (10th edition, 1959, p.417). The genius of these conventions is that they bridge the gap between a legal structure that was settled in the (Christian) middle ages and the political concept of government that developed in the (secular) modern era after 1688. The theocratic mediaeval structure was left in place, but the principle of popular sovereignty was discreetly substituted for that of divine law. God was not explicitly rejected by the Diceyan constitution, but He was tactfully eased out, or ‘kicked upstairs’, rather like a long-serving principal who is liked and respected by his colleagues but is nevertheless judged to have outlasted his usefulness.
Dicey’s conventions were based on the premise that the British Constitution is unwritten. Moreover, when he wrote, popular sovereignty was not very democratic by present-day standards. It was exercised by a small and relatively homogeneous electorate consisting only of men of property. Less privileged men were excluded from the electorate, along with all women.
Two interesting contributions to the debate on constitutional authority (among many others, no doubt) have been published recently in legal journals. The first is entitled ‘The Good Constitution’ (2012) 71 Cambridge Law Journal 357, by John Laws, better known as Lord Justice Laws, one of the more overtly secularist of Her Majesty’s judges (though he sits, somewhat incongruously, on the editorial board of the Ecclesiastical Law Journal). His Lordship’s thesis on the relationship of the state to religious truth in the case of McFarlane v Relate Avon (2010) Industrial Relations Law Reports 872 is discussed in a blogpost entitled ‘Ecclesiastical Law and Equality’ which is filed below.
According to Laws, the object of the ‘Good Constitution’ is the common good, or ‘benefit of the people’ (p.568). This in turn demands 2 ‘moralities’:
(1) the autonomy of every individual. This is the ‘morality of law’, and is primarily the concern of the courts.
(2) the interests of the people as a whole. This is the ‘morality of government’, and the concern of the legislature and the executive (p.572).
The Good Constitution is pluralist. It must allow for ‘difference and disputation’ (p.568). Democracy is justified on the basis that it serves ‘the imperative of pluralism’. Democracy ‘is a means and not an end [because] it tends to promote pluralism and to disable would-be tyrants’.
The modern British Constitution, as analysed by Dicey, is based on the supremacy of Parliament. Parliament is the legal sovereign of the nation, the electorate is the political sovereign. In Laws’ view, the principle of Parliamentary supremacy has not (yet) been abandoned, but it is slowly yielding to a principle of constitutional supremacy, similar to that which obtains in the USA. Constitutional supremacy means that certain fundamental rights are determined by the courts. Hence ‘the British system [is] at an intermediate stage’ (p.570).
It is argued that this thesis misunderstands the relationship between pluralism and democracy. Why is it ‘imperative’ for there to be difference and disputation in a society? Democracy and pluralism are only possible if society agrees about more than it disagrees about. Democracy will not succeed in a society which is fundamentally divided. The history of Northern Ireland makes this point.
It could even be argued that the British Constitution is at a stage of fragmentation, rather than at an intermediate stage. Parliamentary sovereignty was based on agreement as to fundamental rights. Recent constitutional changes (e.g those concerning the right to marry and ‘equality’) may indicate that political consensus about rights has broken down.
There may also be a false dichotomy in Laws’ thesis between individual autonomy and public interest, and the functions of law and politics. The work of politics does involve striking a balance between different ‘autonomies’, but so also does much legal process. Most human rights are qualified rights only, not absolute. A balancing exercise is therefore required to determine if rights have been infringed. The most that can be said is that the courts apply a different balancing exercise from that of politics.
The Lord Justice’s thesis is strongly secularist. It deprecates ‘the suggestion that the public good inheres in a single set of ideas that can be conclusively ascertained … [This suggestion] takes wing only as an article of faith, secular or religious’ (p.568). A single set of ideas is dangerous. It ‘offers … a spurious justification for suppression and arbitrary rule’. Faith is tyranny. The Good Constitution is therefore the opposite of the God Constitution. The God Constitution is the Bad Constitution.
However, it is argued that democracy requires faith of some sort. This is because democracy only works if there is general acceptance of certain values by the democratic community. The Christian religion is the source of these values. Democracy must therefore be faith-based. A democracy cannot function within a plurality of values that are incompatible with each other. Far from disabling tyranny, a plurality of incompatible values gives tyranny its opportunity. Democracy becomes a charade, merely the tyranny of the majority over the minority (or indeed vice versa – the tyranny of a well-organised and articulate elite over the less privileged and less articulate majority).
It is true, of course, that a healthy democracy involves ‘difference and disputation’. However, disagreements concern only the precise application of shared values in particular circumstances. Democracy is an end, not a means. It involves the expression and application of shared values. The justification for a democracy is that the values of the democratic community are better than the values of a tyrant. If democratic values are not better than those of a tyrant then democracy loses its raison d’etre.
The question of individual autonomy illustrates the difficulty with ‘pluralism’. It is not possible to ascertain individual autonomy without making a faith-based or value-based judgement on what an individual is.
This may explain the recent controversies between secularism and traditional Christianity in which Lord Justice Laws has played such a distinguished role. The problem is not human rights per se. Everyone agrees that a human being has rights, but they no longer agree about what a human being is.
While this may not have been the author’s intention, ‘The Constitutional Imagination’ by Martin Loughlin (2015) 78 Modern Law Review 1 helpfully identifies the difficulties with the Lord Justice’s faith in a faith-less constitution whose subjects are somehow united only by being in perpetual disagreement with each other. When juxtaposed with Laws’ ‘The Good Constitution’, Loughlin’s work might have been better entitled The Weak Constitution.
The governance of the state by written constitution is a modern invention, a creature of the Enlightenment. The USA produced the first written constitution in the late 18th century.
The intellectual inspiration for modern constitution-making came from Hobbes, Locke and Rousseau. Locke was the principal inspiration for the American constitution. Rousseau inspired the post-1789 governance of France.
Locke argued that government was based on a social contract, according to which the people delegate the power of governance, for the better protection of their natural rights. Certain natural rights of individuals are thereby relinquished for the sake of the common good. This is the philosophy of the minimalist state.
Rousseau, by contrast, was the prophet of equality. His social contract does not protect natural rights, but replaces natural inequality with political equality. All people must be acknowledged as equal, but they also all have a duty to promote the greatest good of all.
Loughlin’s account indicates the innate weakness of modern written constitutions. They have no basis in custom, history, nationality or religious belief, only in abstract philosophical values. They are test-tube constitutions.
The abstract quality of constitutional rights also makes for a difficult relationship with the law: ‘there can rarely be a correct answer in law to any important constitutional question’ (p.15).
Indeed most written constitutions have not been very successful. France has had no fewer than 12 constitutions since 1789! The adoption of constitutions by totalitarian dictatorships has also undermined their credibility. The success of the American constitution is ‘thoroughly exceptional’ (p.17). (And it should be remembered that the American constitution was not successful enough to prevent a terrible civil war. The American civil war also reinforces the point about the inadequacy of law to determine constitutional questions. The civil war was fought, in part, over different interpretations of the American constitution.)
Constitutions face two challenges today:
(1) ever bigger government and
(2) ever increasing social diversity.
Nowadays government is expected to intervene more and more in society, in response to the political demands that are made on it for expenditure and regulation. Increased social diversity (of race, language, religion, lifestyle etc) in turn creates a diversity of new political demands.
Political demands are represented as human rights, but there is little assertion of corresponding duties. Thus human rights have become (1) politicised and (2) ever more difficult to reconcile with each other. This gives rise to the danger of social and political fragmentation.
Early constitutions had a utopian character. They asserted only a small number of fundamental rights. They were concerned with the emancipation or improvement of humanity.
Modern constitutions, by contrast, are subject to much greater conflicting ideological pressures. They must needs be concerned not with emancipation, but rather with integration, to hold state and society together. Yet integration is hard to reconcile with individual freedom.