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'Constant revolutionizing of production, uninterrupted disturbance of all social conditions, everlasting uncertainity and agitation distinquish the bourgeois epoch from all earlier ones ... All that is solid melts into air, all that is holy is profaned.' Marx

executive dominance, rule of law, citizenship « Previous | |Next »
December 19, 2004

Let me summarize several threads of argument in the recent posts about a dominant executive, constitutional liberalism and the rule of law, and the rethinking of citizenship.

The first thread comes from reading Margo Kingston's Not happy, John! This thread argues the need for citizens to have the power to limit the actions of Government is greater now as it has ever been. Our experience of politics is one that has a House of Representatives dominated by one political party. The power of the Party ensures that the Government (the executive) gets its legislation through the House. For the past 25 years the Senate reviewed and contested this legislation in the name of democratic legitimacy. With control of the Senate passing to the Howard Government after June 30 2005, a browbeaten Senate will pass legislation, and the Crown will automatically give assent.

In this situation the checks and balances placed on the powers of a dominant executive are weak, and not very effective. This leaves citizens out of the picture, and leaves them vulnerable to repressive legislation. Hence we need to empower citizens so they can participate in, and exercise control over government, through a deliberative democracy.

The second strand explores the idea of constitutional liberalism in terms of checks and balances. From reading Hayek I understood constitutional liberalism to mean the use of the rule of law to constrain the powers of the state in a federal democratic system. This article by Kim Rubenstein. She quotes T S Allan to the effect that:


"The idea of the rule of law, in contradistinction to rule by men, is an ancient one. At its core is the conviction that law provides the most secure means of protecting each citizen from the arbitrary will of each other....The law is to constitute a bulwark between governors and governed, shielding the individual from hostile discrimination on the part of those with political power."

Kim goes on to say that this implies a basic principle: that the law is supreme and replaces any arbitrary force. Since executive action is governed by this principle, and therefore executive action is not unfettered or absolute. This is really the starting point for the legitimacy of judicial review and is essential to a democratic system.

Judicial review is the enforcement of the rule of law over executive action. It is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.

Kim then unpacks the implications of the rule of law:


"Feldman states that when looking at the rule of law and government one can identify three meanings of the rule of law. The first is a state of order under law, the second is government under law and the third is substantive restrictions on legislative power such that government in its legislative program is under law as well as governing through law. These principles consist of a number of elements including that government should operate under legal principles, that the principles should be enforced, that there should be an independent judiciary and there should be a commitment to the values of the rule of law."

Though the law of rule is a check on the power of the executive, it does little to empower citizens so they can become more active and particpatory.

The third strand is our understanding of citizenship. This has argued that the Australian Constitution has a big black hole about citizenship in a liberal democracy. The Constitution talks about Australians as people, persons and subjects, but not as citizens. Australians as citizens is largely defined in statutory terms, especially the Nationality and Citizenship Act 1948 and its various amendments under the Hawke Government. What appears to drive these statutory understandings of citizenship is exclusion: excluding aliens (non-whites) from becoming citizens in a liberal democratic polity.

This suggests that we need to rethink the silence around citizenship and to question the liberal understanding of citizenship. This non-constitutional understanding treats political membership in the nation state as the ground for the protection for rights, and understands the virtues of citizenship in a liberal polity in terms of obeying the law, individual freedom and tolerance of diversity.

It is unclear what the rights, responsibilites and duties of the liberal citizen are. Some are clear: political rights such as voting. It is also Australian an obligation as it's compulsory. Then there is jury duty. These are legal rights that say nothing about being a full member of the national community of the nation state and being a certain kind of person capable of being a responsible member in a political community.

| Posted by Gary Sauer-Thompson at 2:20 PM | | Comments (0)
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