The tensions-based approach to constitutions

There are three traditional ways at looking at constitutions, each of which have their weaknesses. This post sets out those three traditional approaches and why this blog follows a fourth approach.

 

Forms

The first is to look at the constitution’s form: in particular, is it codified or not codified?

But in practice this does not get one very far. The United States constitution is codified but it, for example, does not mention judicial review – which was developed in case law. And so not all key elements of a constitution may be in a codified constitution – essential parts of it may still be “unwritten”.

And the United Kingdom constitution is written down, but just not in one codified document.

The United States constitution also show us why the form of a constitution is not a reliable guide to what actually happens. That constitution has many checks and balances, and they do not seem to have worked over the last two years.

 

Institutions

The second approach is to focus on institutions.

In the United Kingdom, this may mean looking at the Crown, Parliament, Judiciary, the devolved governments, and so on. And generally this is the easiest way into a constitutional discussion.

The problem here, however, is that what actually happens in our political system does not neatly accord with the institutions. A great deal of law. -delegated legislation – is really made by the government with the merest of contacts with Parliament. Judges can make (ahem, “develop”) law, without involvement of Parliament. And many “quasi” judicial decisions are not made by the judiciary, but nonetheless these decisions affect the rights of people.

There is no absolute separation of powers in our political system or in most others, and institutional approach somewhat disguises that.

 

Functions

This third approach looks at what is done by those with power, rather than the form or the institutional framework.

The usual approach (at lest in Western, post-Enlightenment) systems is to separate the political system into three functions: the executive function, the legislative function, and the judicial function. This approach has the advantage of the realisation that the functions can and often do cross against institutions.

The problem with this approach is that it can assume things generally work, that functions can be performed unproblematically. It does not really deal with what can go wrong, or when there is conflict between various power-holders. A functional approach does not really help us understand dysfunctions.

 

Tensions

The preferred approach of this blog is to focus on tensions within political systems.

In essence: who can say that this is not allowed or that should be reconsidered, and to whom this can be said, and how can any person with power be removed and replaced or simply held to account.

Just as a contract is not really there for when a transaction goes well but instead to regulate the consequences of things going badly, a constitution is ultimately there for when there is political conflict.

A constitution provides the means by which political conflict can be resolved – the rules of the game, and one hopes this happens before conflicts harden into contradictions. One cause of civil disorder is when a political system is unable to resolve a conflict by peaceful means and so violence is resorted to instead.

This tensions-based approach may not be an approach followed by others, whether academics or otherwise, but it is one which this blog follows.

And this tensions-based approach explains why this blog is usually unimpressed by constitutional form or by institutions, or by how things “should” work. For although this blog is written from a liberal constitutionalist perspective, its emphasis is on how things do work – and do not work – in practice.