In its ideal form, treats all persons equally and releases the individual

from dependence upon customary, religious and traditional ties.

Broadly speaking the state means the government of a country. The

term is also used in international law to describe an independent

country and as such a full member of the international community.

The term ‘state’ derives from ‘status’ or ‘estate’ and originally meant a

position in the overall scheme of things. Thus the legislatures of the

Channel Islands are called the ‘states’. The state could be regarded as

merely an organised body of people issuing orders, its function being

to provide services for the public. What is special about the state is the

notion that the state must be accepted by the community as having a

monopoly of physical force either directly or indirectly as when it

permits the use of force by others in self-defence.

We can go further by recognising special features associated with

the state. For example the state represents the whole community rather

than any particular section of it and therefore carries special authority.

Moreover the state should be subject to higher standards of conduct

than other persons with regard in particular to its duty to treat people

17

18 General Principles of Constitutional and Administrative Law

equally, to act altruistically and to be accountable (see R. v. IRC ex

parte Unilever [1996] STC 681 at 695; R. v. Somerset CC ex parte Few-

ings [1995] 1 All ER 513 at 524; Reynolds v. Times Newspapers [1998] 3

All ER 961 at 1004). Conversely, in order to perform its duties, the

state might have privileges not available to other bodies such as

immunity from legal enforcement.

The terms ‘state’ and ‘nation’ could overlap. The state is a legal and

political concept. A nation is a cultural, political and historical idea

signifying a relatively homogenous community featuring possibly but

not necessarily a common language, a common territory, and shared

religious, or cultural traditions. Legally speaking there is no necessary

link between a state and a nation. For example, most of the African

states are artificial constructs devised in the interests of colonial rulers

and relatively unstable as political units. Within the United Kingdom

which is a state but not a nation there are the nations of England,

Scotland and Wales and some argue Cornwall. The problems of

Northern Ireland are connected with the fact that the Irish nation was

partitioned in 1921 between two states, the UK and the Republic of

Ireland. Until the Union with Ireland in 1801, Britain was a state, as

was England before the Union with Scotland in 1707.

The English nation has no legal or political institutions as such

whereas the other nations of the UK have a certain degree of auton-

omy. (The term ‘country’ has no legal significance and is used loosely

to refer either to a nation or to a state in their geographical senses.)

A community that considers itself to be a nation has a moral claim

to the legal powers that go with statehood. Indeed it is arguable that

association with a place – England – is a stronger source of political

legitimacy than the institutions that embody the state as such. The

French Declaration of the Rights of Man (1789) announced that the

source of all sovereignty lies in the nation, although some commu-

nitarian beliefs would devolve power to smaller groups linked by

ethnic ties.

The period from 1770 to 1820 is widely regarded as marking

the birth of the modern political age. Influenced by the writings of the

previous century, the French and American revolutions generated

written republican constitutions which were copied later on, when

aristocratic regimes were overthrown throughout Europe and colonial

rulers expelled. The English revolution and the subsequent union with

Scotland had taken place a century earlier. Even though the British

system of government was widely admired, no other state adopted the

loose unwritten British model but preferred the rationality of a written

blueprint in accordance with Enlightenment philosophy.

19

Constitutional Values

The experience of the twentieth century in which states use

technology as a means of mass extermination and set up regimes

designed to subjugate communities by terror may have damaged the

credibility of the ‘Enlightenment project’ and in recent decades there

has been a reaction against the supremacy of reason and indeed

against the validity of the state. This has taken the form of self-

consciously ‘post-modern’ and ‘critical’ approaches to law which have

emphasised law as a propaganda instrument of powerful vested

interests rather than as one of reason and justice and which have

drawn attention to what are presented as irresolvable contradictions

in the law (see Ward, 1997; Dworkin, 1986, p. 275). Solutions have

usually centred upon participatory mechanisms that devolve decision

making to lower levels so as to allow those most affected to exercise

control. The obvious danger here is the sacrifice of the neutrality and

equality associated with the idea of the state in favour of self-

appointed vigilante and vested interest groups.

A method of justifying the state which was popular with Enlight-

enment thinkers and is still used today is the idea of the ‘social

contract’. This is a hypothetical agreement made by the community

under which individuals voluntarily give up some of their freedom in

return for the benefits of the law. The social contract therefore regards

government as based on the consent of the people and treats each

member of the community as equal. It does not matter that there was

no actual contract. According to Kant for example an arrangement

is unjust if free individuals would not have agreed to it. Rawls, an

important modern contractarian, seems to take a similar approach by

having a system of justice on what we might agree to if we were un-

aware of the social and economic disparities between us. According to

Hart (Rosen, 71) the obligation is one of mutuality in the sense that,

because I enjoy the benefits of law and order, I must accept its bur-

dens. However, it is not easy to understand why any individual should

be morally bound by a social contract on Hart’s basis since we cannot

choose to opt out of the ‘benefits’ of the law. Nor is there any reason

why future generations should respect contracts made by their fore-

bears. Moreover the idea of contract makes sense only if there is some

already existing reason why agreements should be binding.

2.2 Incommensurables and Uncombinables

A constitution must either impose a particular value system by force or

must reach a voluntary accommodation between incommensurable

20 General Principles of Constitutional and Administrative Law

values and interests. Incommensurable values reflect the fact that

human nature comprises contradictory elements. For example, we are

at the same time, individuals who want to be left alone to pursue our

own versions of happiness and social animals who could not survive

without the help of others. Each of us possesses these contradictory

features in different proportions. This leads to competing goals in the

law. Each goal may be desirable in itself but one cannot be achieved

without sacrificing the other. Incommensurables cannot be brought

within a principle that everyone can unite behind other than one so

general as to be meaningless such as ‘the public interest’ or ‘human

dignity’. Nor can incommensurables be weighed according to any

rational measure. For example how is it possible to compare the risks

of an obscene publication corrupting people with the good of any

artistic merit such a publication may have (see Obscene Publications

Act 1959, s. 4).

For the purposes of constitutional law the most fundamental