36 General Principles of Constitutional and Administrative Law

every individual. According to Bentham the only acceptable form of

government was democracy through representatives who would

engineer utility.

Mill’s version of utilitarianism places stress on the active partici-

pation of citizens in public affairs particularly at local level (see

Chapter 8), not merely as a means of identifying interests but as a

means of self-improvement. Mill advocated the Aristotelian notions of

citizenship according to which a purpose of government was to develop

the higher faculties of human beings, namely their capacity to make

reasoned choices. The protection of individual freedom, dispersed

institutions and public participation in them are therefore ingredients

of a good constitution valuable for their own sake.

The first element of good government, therefore, being the virtue

and intelligence of the human beings composing the community, the

most important point of excellence which any form of government

can possess is to promote the virtue and intelligence of the people

themselves. The first question in respect to any political institutions

is, how far they tend to foster in members of the community the

various desirable qualities moral and intellectual.

However, Aristotle and his contemporaries had a limited idea of

participation, restricting it to an elite of well-educated males who knew

each other personally. Nevertheless citizen participation has been

advocated by many modern writers, notably Jurgen Habermas (1996),

¨

as an appropriate goal of a constitution the ideal being a debate

between equal citizens until a mutually acceptable compromise is

reached. Given human nature this seems to be wholly impracticable

and indeed incoherent in that there is no particular reason why any

interest should be willing to compromise. The ‘iron law of oligarchy’

suggests that any form of participation will be stage-managed by an

elite who take it upon themselves to select the ‘participants’, decide the

terms of the debate and interpret its outcome. Habermas’s notions of

‘deliberative participation’ and ‘non-dominant discourse’ have been

unkindly described as ‘the appeal of the intellectual salon with a dozen

or so erudite and witty discussants’ (Hardin, 1995; cf. Prosser, 1982).

What is arguably more important is that all governmental decisions

should be challengeable by the people, that officials should have to

justify their actions and that all laws can be changed.

The other kind of liberal mechanism which appeals particularly to

the individualistic end of the spectrum concentrates on the republican

devices for limiting power which we outlined in Chapter 1.

37

Constitutional Values

Summary

2.1 We briefly introduced the development of enlightenment thought and the state

as the foundations of modern constitutionalism.

2.2 We introduced the notions of incommensurability and uncombinability as

tools of analysis. These notions suggest that democratic constitutions cannot

create consistent or harmonious principles without sacrificing other valuable

goods, so that a constitution is likely to be an untidy mixture of different

ideals. Example of incommensurables include the distinction between posi-

tive and negative freedom and the apparent clash between majoritarian

democracy and equality. Incommensurables are sometimes combinable in

the sense that the objects of all happen to be achievable at the same time.

A good working constitution would aim at this common ground. Where this is

not possible, the constitution would provide procedures whereby a temporary

accommodation between different viewpoints could be reached. In some

cases, notably human rights cases, it seems to be impossible to avoid making

a choice between incommensurables that cannot be wholly justified by reason.

In such a case there is disagreement, not only as to the proper choice that

should be made but also as to the most appropriate mechanism for making the

decision, in particular whether it should be a court or an elected body.

2.3 We set out the different approaches of Hobbes, Locke, Rousseau and Hume to

the question of the foundation of a constitution against the broad distinction

between liberal and communitarian values. These writers express founda-

tional approaches to the problem of government and the relationship between

the citizen and the state. Hobbes favours government with unlimited powers

as a necessary evil for the purpose protecting individuals. This has important

implications both for individualistic aspects of a constitution leading to

notions of equality and freedom and also for the collective aspect in the idea

that the state cannot act unjustly. Locke’s version uses government to protect

natural rights, would limit the powers of government and make government

accountable to the people. Rousseau believed that humans were only fully

free if acting within the community for the general good and regarded

individual freedom as exercisable only through collective action and the state

as superior to other forms of organisation. Hume favoured a pragmatic form

of community driven by accommodating competing interests in the context of

custom and practice. This supports a common law view of the constitution.

2.4 We discussed different kinds of liberal values, including individualism, and

utilitarianism through the writings of Bentham and Mill, with a view to

suggesting that there are irreconcilably different versions of the proper basis

of a constitution and suggested constitutional mechanisms which appealed to

the different values.

Further Reading

Dworkin, Freedom’s Law, chapter 1.

Hampshire-Monk, A History of Modern Political Thought.

Held, Political Theory Today, chapters 1, 6.

Loughlin, Public Law and Political Theory, chapters 3, 4.

38 General Principles of Constitutional and Administrative Law

Postema, Bentham and the Common Law Tradition, chapters 1–4.

Van Caenegem, An Historical Introduction to Western Constitutional Law, chapters 1,

5, 7, 8.

Waldron, Law and Disagreement, Introduction, chapters 7, 8, 9.

Wolf, An Introduction to Political Philosophy, chapters 1, 2, 3, 4.

Exercises

2.1 Explain and illustrate the nature of incommensurable constitutional values in

relation to the UK constitution.

2.2 To what extent could Hobbes be regarded as the founder of modern

constitutional ideas?

2.3 What are the practical implications for a modern constitution of following the

ideas of Hobbes, or Locke or Rousseau and what differences would their

ideas produce?

2.4 Bentham regarded natural rights as ‘nonsense on stilts’. What did he mean

and do you agree?

2.5 Distinguish between the ideas of Bentham and Mill in terms of constitutional

mechanisms.

2.6 John Major, a former prime minister, said that democracy is a threat to

liberty. Discuss.

3 The Sources of the Constitution

3.1 Written and Unwritten Constitutions

The term constitution is ambiguous. In one sense dating from the late

eighteenth century, it has come to mean a special written document or

a series of documents. In a second and older sense, which was used by

Aristotle (384–322 BC), it means the arrangements, however they may

be recorded, that function as a constitution. It is sometimes said that,

because the UK has no written constitution, it has no constitution at

all. This is a non sequitur and historically short-sighted. The term

‘constitution’ and the ideas of limited government associated with it

were prominent features of the disputes between Crown and Parlia-

ment that dominated much of the seventeenth century. It may indeed

be true that we have no constitution but the argument does not turn on

the absence of a written document but whether our law includes basic

principles that structure and limit the government. Thomas Paine, the

eighteenth-century radical whose writings influenced both the French

and the American revolutions and who denied that we have a con-

stitution, said that ‘a constitution is not the act of a government but

of a people constituting a government and a government without a

constitution is power without right’, and that ‘a constitution is the

property of the nation and not of those who exercise the govern-

ment . . . a constitution is a thing antecedent to the government and

always distinct therefrom’ (1987, p. 291). There may be practical differ-

ences between the written and the unwritten kinds of constitution but

there seems to be no difference in principle between them. Indeed in

R. v. Secretary of State for the Home Department ex parte Simms [1999]