Conservatism With Alex: On the validity of constitutions

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One of the greatest political mistakes of the past few centuries has been the assumption that pure ideals make for better political groundwork than experience. The British ‘constitution’ has been built up across centuries of political and human trial, turmoil and test, and not by one single event which cause the codification of a single document which we call a constitution. Our laws are made by Parliament: the symbol of regal, local and noble power, and some might say ultimately divine power over our nation, the body that represents us and by its actions creates and amends the political constitution of our state. Now there is talk of creating a codified British constitution comprised of a single document containing certain fundamental rights, as well as defining in detail the structure and process of the state. This may not sound like such a bad thing in principle, but as I shall argue in this next part of the series – conservatism sees the value in maturity and time rather than a single act of sudden political change. As we learn from history, it is often the most well-intentioned of reforms that lead to unnecessary societal damage.

The essence of the law is that no one is above it – all participants in the society governed by law are subject to it, and at least technically speaking none are immune from it. However, what we often forget is that since it is other humans who make our laws there is another argument that can be made: are our lawmakers themselves above the law? If they are deemed worthy enough to make the law, then surely they must have some sort of special status as people who are able to interpret and create laws, and if they know what laws are best for us – surely they are better than the law itself? At first reading, this is a ridiculous notion, but on thinking further – is it really? They may not be above the law in the sense that they can go unpunished by it, but in the sense that consider themselves worthy to interpret and change an age-old constitution, and often go unaffected by the consequences due to the nature of their privileged positions.

At each election we entrust our MPs with our support and the unspoken promise that they will represent our interests in Parliament. Often we lambast our MPs for not doing this, passing unnecessary and unwanted laws and regulations, wasting our money and other such criticisms. It’s a good thing to hold people to account, but we should not forget our history – our democracy did not come about because people wanted it. The United Kingdom’s constitution has never been given ‘popular assent’ as it were, we have never voted on what sort of constitutional system we have, nor does it look like we will in the near future. All attempts to reform and change our constitution (including increasing the franchise over time) have come from above, usually as an initiative to prevent or allay social unrest, or gain popularity for the sake of winning an election. Hearing this somewhat cynical but historically sound proposition, some people might become angry, to be told that a political establishment has never really cared for them, and that constitutional democracy itself was a means to an end. However, we have some cause to be grateful for it, for in many other countries the transition was not so smooth, and the results far less peaceful.

Many philosophers have considered the difference between ruling and law. The French conservative, Joseph de Maistre, defined ruling as a human action based on law, whilst he said that law itself was a divine asset, handed down from a higher power. John Locke preferred to define law as a natural process based on the united agreements of people on what is right and wrong. This brings us very close to the philosophy of morality, which itself is a whole different ball game. It has been a troubling task for thinkers throughout the ages to agree on what is morally right and wrong, so I will not try to wade into that mire too far, however, especially with the decline of religion in society over the past 50-100 years, so too has it become harder to agree on what is the correct form of social behaviour.

Ultimately, it is the unwritten conscience of the human mind that defines what we consider right and wrong. For example, it is a universal, global belief that murder is wrong – and it is punished in every national legal system in some shape or form, regardless of cultural, religious and social differences. The conservative philosophers of the past would argue that this is where the role of the divine comes into play – if there are certain accepted truths about law that are not questioned across the human race, then sure there is some higher power within us all willing us to condemn such acts? Modern conservatives have to be careful with such assertions, and whilst (as a religious man) I would agree with these thinkers, the divine aspect is not completely necessary when making the case for moral law. Without a moral force in law, and in society, all moral obligations of those ruling, and to a certain extent citizens in society, towards others begin to dissipate.

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Let us envisage for a moment the Roman republican political system – consisting of assemblies of the people and an oligarchic Senate made up of noble families. Famously, these two bodies were at each other’s throats throughout history, but each counterbalanced the other, with different powers at their disposal. The Senate could not officially make laws, since that power lay with the people, but over time, the Senate practically did make laws – such was the apathy of the Roman people that the unwritten constitutional law changed, and for the most part the Senate took control. I am not for a moment arguing that democracy should be disestablished, however, often we may look retrospectively at things such as this and consider: wouldn’t it have been better if (for sake of example) the people had maintained their rights, and the Senate been restricted. Unfortunately this is a great error, since it assumes wrongly that a constitution from the ancient world can function in the same way as one from ours. This is not an ancient rerun of the French Revolution, but rather, the Roman constitution matured over time. For them, it began democratically and matured away from democracy as time passed, yet the people voiced little disapproval, or at least took no action if they did. We have been lucky enough to have inherited a constitution which began life as a feudal monarchy, and has matured into a more power-sharing model, and eventually into a functioning democracy.

A constitution is in itself a set of laws, whether or not those laws are codified is irrelevant – what we can learn in the modern age is that for a constitution to function within a peaceful and stable society, it is better that constitution develop and mature over a period of time based on accepted wisdoms, temporal demands and adaptations. Whether or not these changes are considered part of a greater divine plan or not is irrelevant – the true stability and validity of a constitution lies in whether or not it has survived centuries of trials and tests. The British constitution has indeed done this. The idea of creating a new document to protect modern concepts of “liberty” and “social equality” is unusual, and would potentially undermine the validity of a constitution which has grown to protect the freedoms which we enjoy so readily today. The problem with creating a single document like this at one time is that we are faced with the task of defining mere abstractions (such as “equality”). It is impossible to define an abstraction precisely, and every man’s interpretation of these terms differ.

Therefore, there can be said to be two infallible principles of constitutional and moral law: first, that on whatever basis a law is set up, if it is bundled together as an attempt to define abstraction, with nothing more than short-term human gain to be achieved, then it cannot last. Second, if a man confers upon himself the title of legislator purely because he considers himself worthy enough to create law, then this is nothing more than pomposity. Laws are not made by singular humans, but by societies and time itself. Experience and the lessons of historical development count for everything in the maturation of good societies, and to think that a perfect constitution can be codified at the click of a legislator’s fingers is a dangerous fallacy. If the formation of nation states, their history and traditions are not enough to convince us to respect our own constitution, then let the decline and fall of historical states be enough to warn us against not doing so. Just as experience forms our worldviews both as individuals and as a nation, so too does the lack of experience, or as we may term it: naivety, destroy us.

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