The basis for legitimacy says Hayek in a constitutional system is the existence of a system of laws that cannot be easily changed. The basis of legitimacy is the rule of law, not popular sovereignty.
A quote:
"The fundamental distinction between a constitution and ordinary laws is similar to that between laws in general and their application by the courts to a particular case: as in deciding concrete cases the judge is bound by general rules, so the legislature in making particular laws is bound by the more general principles of the constitution. The justification for these distinctions is also similar in both cases: as a judicial decision is regarded as just only if it is in conformity with a general law, so particular laws are regarded as just only if they conform to more general principles. And as we want to prevent the judge from infringing the law for some particular reason, so we also want to prevent the legislature from infringing certain general principles for the sake of temporary and immediate aims." F.A. Hayek, The Constitution of Liberty
Does that mean the people cannot change the liberal constitution through a referendum?
I raise the question naively because there is a tension betwen the idea of liberal constitutionalism ( that the powers of government should be exercised within strict limits) and democracy (the will of the people is paramount). Democracy represents a threat to the rule of law.
Update
For Hayek the organization of society is already given, as the market order has evolved spontaneously.The institutions which define the market order and protect liberty and progress are in existence. The rule of law as a set of general rules is constitutive of the market order and has emerged and evolved with it.
So the task of politics is to protect the sphere of liberty from encroachment. Moving beyond this spells disaster and leads to the dark night of totalitarianism.
Posted by Gary Sauer-Thompson at December 11, 2004 03:42 PM | TrackBackGary - You are determined to find anti-democrats under the bed. All this means is that he thinks it is undesirable for legislatures to be able to change their own fundamental rules - to stop temporary majorities rigging things in their favour. This theoretically threatens democracy as much as freedom. There are numerous mechanisms for slowing down such changes - larger majorities within the parliament, referendums, etc.
Posted by: Andrew Norton on December 11, 2004 05:09 PMAndrew,
My question was naive.It was designed to open up an issue--the tension, if not, contradiction between liberal constitutionalism and democracy.
It is not the case that I'm "determined to find anti-democrats under the bed."
I take constitutional liberalism seriously, given my concern about the doctrine of parliamentary sovereignty in the hands of a dominant executive after June 30 3 2005, with few checks and balances on what the executive could do.
Just like Hayek I am concerned that the doctrine of parliamentary sovereignty in the hands of a democarically elected Howard Government claiming a mandate to represent the popular will will provide the basis for legimating a vast extension of government powers (for the national security state.) So we have the willingness to sacrifice liberty to provide security through strengthening the coercive and surveillance powers of the state.
Hayek was concerned that parliamentary sovereignty could be penetrated by socialists and collectivists who would destroy the market order. I am concerned that parliamentary sovereignty will be penetrated by big government conservatives.
So I accept Hayek's insight that the constitution is a constitution of liberty, which can protect the individual against government becoming unlimited. (eg. the way our federalism enables a balance of power between central and state centres of government)
Hayek's insight is that we agree to be governed by the Coalition because we trust that Howard & Co within the limits set by the Constitution.
However, I think that Hayekian reading of the Australian constitution is on shakey ground, as the Australian constitution was designed rather than evolved, and it is grounded on popular sovereignty.
Posted by: Gary Sauer-Thompson on December 11, 2004 11:23 PMI think it would be more correct to say that the Australian Constitution was designed but has evolved, due largely to the High Court. The most important aspect of this from the point of view of 'liberal constitutionalism' is the discovery of protections of freedom of political speech.
The Constitution as originally designed was based on popular sovereignty (as you would be aware, with a handful of exceptions it divides popular sovereignty between levels of government). However it was popular sovereignty limited in time - a crucial point.
Though the current situation of the government controlling both houses contains risks, I am not keen on writing more substantive controls on the government into the Constitution. I'd rather have power misused by people I can throw out in a couple of years time, than have it misused by people who are there until they start going senile on the bench.
Posted by: Andrew Norton on December 12, 2004 07:11 AMAndrew,
okay the design & evolved bit is acceptable.I can accept the revisionism by Australian Hayekian liberals.
You write:
"Though the current situation of the government controlling both houses contains risks, I am not keen on writing more substantive controls on the government into the Constitution. I'd rather have power misused by people I can throw out in a couple of years time, than have it misused by people who are there until they start going senile on the bench."
But we have a problem re the High Court and the Constitution. Read this post. There Chief Justice Murray Gleeson says:
"In the last resort, it is for the judiciary to determine the powers of the Parliament and of the executive. When federalism was first established in the United States, this was not seen as inevitable. Thomas Jefferson, for one, had a different opinion. But long before the Australian federation came into being, the principle of the judiciary as the body which resolved disputes about the powers of the other branches of government was established. The precedent was followed here, virtually without question."
I'm not entirely clear on the problem here - the HCA is constrained by the wording of the Constitution, and the Gleeson court is more constrained than the Mason court (by choice). However the legislature can, in extreme circumstances, dismiss judges, and can also call referendums to change the Constitution's wording. I don't want to give the judiciary more power than is needed to make the basic structures work, but I accept the need for undemocratic institution like the HCA to adjudicate disputes.
Posted by: Andrew Norton on December 13, 2004 07:21 PMAndrew,
It is difficult to get the problem clear. I'll try.
What we have in common is this: "Parliament is constrained by the Constitution as interpreted by the High Court."
The implication?
What I take from this is that the notion of parliamentary omnipotence in lawmaking (eg., the writings of Professor A. V. Dicey) can, and should be rejected as erroneous.
Why so?
Because judges have the power to invalidate an extreme law made by parliament which the Court held to be in conflict with the Constitution.
The problem or issue?
Does the view that the foundation of the constitution is the sovereignty of the people implicitly reserve some rights to the people which a parlaiment could not invade?
Does that pose a problem for you?
Posted by: Gary Sauer-Thompson on December 16, 2004 01:37 PM