Abstract
I Introduction
An increasing enthusiasm for constitutional values is noticeable in recent Australian public law scholarship. It has been argued, for example, that the
This paper seeks to clarify the terms of the current debate on Australian constitutional values. Drawing on theoretical, comparative and doctrinal resources, it argues for a distinction between (i) constitutional principles, understood as relatively flexible legal norms which rest on text, structure and history and (ii) extra-legal values of broader political morality. I motivate this distinction initially through a critical examination of the ‘functionalist’ thesis that the Constitution should be interpreted through the lens of values. The functionalist position, I contend, lacks a sufficiently clear distinction between constitutional principles as legal norms and extra-legal values of political morality. As a consequence, the functionalist appeal to ‘constitutional values’ tends to shift between a relatively modest supplement to purposive approaches to judicial interpretation and a considerably more ambitious proposal for judges to promote ‘normatively attractive’ values.
The paper has three main sections. Section II sets the scene with a discussion of Elisa Arcioni and Adrienne Stone’s recent examination of the role of values in the
Section III deepens the analysis of functionalism by moving to a comparative register, considering historical, conceptual and doctrinal dimensions of constitutional values, primarily by reference to the German Basic Law (
Finally, section IV extends and refines the arguments of the earlier sections by examining the recent theories of constitutional principles proposed by Marcelo Neves and Mitchell N Berman.
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I demonstrate that both theories, despite their significant points of divergence in other respects, conceptualise constitutional principles as legal norms that are distinguishable from extra-legal values, viewed either as subjective preferences or ideals of political morality. In closing, I elaborate on my claims with examples from Australian public law scholarship and High Court jurisprudence, arguing that the Court’s appeal to the value of dignity in
II Australian Constitutional Values
Values appear to be on the ascendant in Australian public law. Scholars have begun to place in question conventional assumptions about the implications of the procedural and legalistic surface form of the
Discussions of Australian constitutional values often begin with an acknowledgement of the ‘uninspiring’ or ‘technical’ characteristics of the
The technical and procedural attributes of the
The jurisprudence of the High Court has also traditionally reflected the ‘altogether more prosaic’ character of the
Arcioni and Stone’s illuminating discussion of values in the
Arcioni and Stone’s first argument begins with the claim that it is misleading to postulate a sharp line of distinction between ‘rights’ constitutions (eg, the United States and Germany) and ‘structural’ or ‘procedural’ constitutions (eg, Australia). The unsustainability of such a rigid distinction is evident in the fact that the First Amendment of the
This first argument of Arcioni and Stone assumes the ‘inevitability’ of values. Constitutional modesty is not, and cannot be, ‘value-neutral’. ‘Legalism’, for example, may itself be characterised as ‘reflective of a set of values’.
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An obvious ‘source’ of legalistic values is the preference of the British tradition to ‘constrain judges and correspondingly enlarge the role of Parliaments’.
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More generally, and moving beyond Arcioni and Stone’s own statements, it is hardly surprising that the late 19th century framing of a federal constitutional settlement informed by British and American influences would reflect a classical liberal view of liberty and a commitment to popular (albeit on the assumption of a limited franchise) election of representatives.
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Arcioni and Stone’s focus, however, is not the intentions and commitments of the framers, but, as is clear from their second argument, the amenability of the
Arcioni and Stone contend that relatively recent projects of constitutional reform — notably the republican movement and Indigenous recognition — and the jurisprudence of the High Court both indicate that the
Arcioni and Stone are careful not to overstate their conclusions on the status of constitutional values at the level of Australian public discourse and culture. 36 They also acknowledge that High Court jurisprudence on freedom of political expression ultimately rests on ‘broader liberal democratic’ commitments, rather than expressly declared value or values to be found in ‘the written, entrenched Australian Constitution’. 37 In ‘articulating the values underlying freedom of political communication’, Arcioni and Stone admit, the High Court is ‘defining rather than reflecting Australia’s true constitutional character’. 38 This raises well-known concerns about the scope and limits of judicial power. 39 The proposition that it is for the judiciary — aided by the insights of Australian public law academics — to determine the values of the people through the reconstruction of normative propositions taken to be implicit within the terse prose of the Constitution obviously leads to contentious questions of democratic legitimacy. Even absent a commitment to political constitutionalism or suspicion of judicial activism, moreover, the project of identifying values in a ‘thin’ and ‘legalistic’ constitution would seem apt to culminate in a clash of ideologies unless guided by sound interpretative methodology. This is a point that is best explored by looking at Dixon’s advocacy of a functionalist model of constitutional interpretation.
Dixon introduces ‘functionalism’ as a theory of constitutional interpretation that is better able to explain ‘judicial reasoning based on substantive values’ than rival models. 40 Its core claim is that one should approach ‘the interpretation of the Constitution by asking, first, what purposes or values various constitutional provisions or structures can be seen to protect or promote; and second, how specific provisions or guarantees can be interpreted in a way that best advances those purposes or values’. 41 In this respect, as Dixon acknowledges, functionalism is closely related to purposive interpretative approaches and represents a middle way between the extremes of ‘realism’ (or pure ‘pragmatism’) and ‘formalism’ (or ‘legalism’). 42 Realist and pragmatist approaches, for Dixon, rightly accept the inevitability of ‘some form of evaluative judgement by judges’, but (in their less sophisticated versions) do not provide a systematic or principled model for how judges should engage in values-reasoning. 43 Formalist approaches, by contrast, place a strong emphasis upon constitutional provisions, legal materials and constitutional history (hence providing clear guidelines for interpretation) but are inadequate primarily because they promote a lack of transparency regarding the inescapable role values perform in judicial interpretation. 44
Recent High Court decisions, Dixon suggests, already evidence steps in the direction of functionalism. The
The relationship of Dixon’s functionalism with purposive approaches nevertheless warrants closer consideration.
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According to Dixon, functionalism is a ‘close relative’ of purposive methods, already well-accepted in Australia, which find ‘support in common law approaches to statutory interpretation, and in provisions of Commonwealth and state
Where functionalism seems to diverge is in the ‘greater scope’ it offers ‘to identify the purposes or functions served by textual or structural provisions, either
On a normative level, Dixon places significant weight upon the capacity of a functionalist approach to promote a culture of enhanced judicial transparency.
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Like pragmatism, functionalist jurisprudence entails that judicial ‘choices’ should ‘be informed by direct and open engagement with substantive criteria that go beyond the scope of the text of the constitution, prior cases or the formal record of the aims and understandings of those who drafted the constitution’.
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Dixon submits that ‘Australian courts routinely consider a range of
Dixon, to be sure, states that functionalism is not intended to offer a ‘blank cheque’ for the introduction of contentious political and moral values into constitutional interpretation. While partly inspired by realist approaches, Dixon also repeatedly emphasises the importance of legal form and suggests that ‘any reliance by a court on “values”-based arguments should first depend on serious engagement with the text, history and structure of a constitution, as well as prior precedent’.
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The expression ‘first’ in this passage is nonetheless significant. Dixon’s claim is that, to ‘
Dixon’s characterisation of the values that are to inform functionalist constitutional interpretation is equivocal in its implications. One manifestation of this is the use of the inclusive disjunction ‘purposes or values’ to range over purposive interpretation in the sense endorsed by the High Court and a more substantive conception of values derived from political morality. 63 In what follows, I argue that this ambiguity reflects the lack of a clear distinction between, on the one hand, constitutional principles understood as relatively flexible legal norms which nevertheless rest on text, structure and history, and, on the other hand, extra-legal values. 64 Federalism and representative and responsible government — listed by Dixon as constitutional values — are examples of principles in the former sense. 65 Dixon also refers, however, to the ‘accommodation of pluralism’ as a constitutional value, which seems to require more interpretative imagination. 66 It is here that a more precise distinction between constitutional principles and values is necessary.
Dixon’s functionalist approach ultimately admits of weaker and stronger interpretations. 67 On a weaker reading, it is a pluralist and ecumenical interpretative approach which combines an objective purposive emphasis on the ‘ends’ which give meaning to constitutional provisions with continued adherence to formalist or legalist methods (consistent with High Court doctrine) but also acknowledges that in some exceptional cases it may be necessary for judges to take recourse to broader political and moral values. Dixon’s functionalism, on this reading, is a fairly conventional purposive theory of constitutional principles with a dash of realism. On a stronger reading, Dixon’s functionalism ascribes a role to extra-legal political and moral values — and substantive normative commitments generally — in judicial interpretation which exceeds what its frequent exhortations to incorporate formalist methods initially seems to suggest. The source of this ambiguity, it seems plausible, is the lack of clear definition of a ‘constitutional value’. 68 This point is best elaborated by looking more closely at constitutional values from a jurisprudential and comparative perspective.
III Constitutional Values in Jurisprudential and Comparative Perspective
Functionalist approaches to constitutional values, at least on a stronger reading, invite obvious concerns regarding their bestowal of power upon the judiciary. From the broad perspective of political constitutionalism in its various manifestations, the proposition that constitutional apex courts are the privileged expositor of shared national values and normative commitments is indeed an uneasy fit with principles of parliamentary supremacy and popular sovereignty. 69 These concerns are not, however, my primary focus in the next two sections of the paper. The argument that follows, that is to say, does not presuppose a critical perspective on strong form judicial review or a robust theory of popular democratic legitimacy (although it may provide argumentative support for positions in this vicinity) but focuses specifically on the question of the role of values in constitutional interpretation. In the final section, I develop a distinction between constitutional principles and values that is explicated by reference to recent High Court jurisprudence. This third section prepares the ground for this distinction by engaging in a general jurisprudential examination of appeals to constitutional values, which I frame through a comparative analysis of the ‘normativist’ values jurisprudence developed by the German Federal Constitutional Court. 70
My appeal to German constitutional jurisprudence in this section both to clarify the functionalist position and motivate a distinction between constitutional principles and extra-legal values requires a brief explanation. The doctrine of an ‘objective order of values’, as developed by the German Constitutional Court, is of course quite foreign to Australian constitutional jurisprudence, and there is no suggestion that Dixon’s functionalism assumes otherwise. German values jurisprudence is nonetheless illuminating in relation to functionalism for two reasons. Firstly, consideration of German doctrine allows for a clear identification of potential problems with a more expansive jurisprudence of constitutional values. The current section explores these concerns by reference to Ernst-Wolfgang Böckenförde’s critique of the values jurisprudence of the
As Arcioni, Stone and Dixon all note, many national constitutions refer to values and many constitutional courts likewise deploy values in judicial interpretation. The codified constitutions of Argentina, Brazil, Costa Rica, East Timor, Egypt, Rwanda, South Africa, Turkey, Uganda and Venezuela are relatively well-known examples.
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The South African Supreme Court of Appeal and the Supreme Court of Israel are conspicuous instances of apex courts which ascribe a prominent place to values in judicial reasoning. It is the German Constitutional Court, however, in its interpretation of the 1949
Although drafted by a constitutional assembly, the 1949 German Basic Law was framed with significant input by the victorious Allied Forces and intended as a transitional document (pending national unification) that would guard against the political forces responsible for the failure of the Weimar Republic and subsequent rise to power of the Nazis.
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The pride of place given to human dignity and human rights in the Basic Law is readily comprehensible in this context.
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As noted above, however, the Basic Law does not expressly refer to objective order of values, which is a conceptual scheme that was first explicated in the German Constitutional Court’s jurisprudence on positive state obligations. In the (in)famous
The German Constitutional Court’s subsequent jurisprudence conceptualised basic rights not merely as ‘defensive’ constraints on the state, but as the expression of an objective value order imposing an obligation on the state to respect the central values contained in the constitution. Basic rights are declared by the Court to have a ‘radiating effect’ on the entire legal order, inclusive of private law, and the basic principles or values of the constitution with respect to human dignity, democracy and the status of Germany as a social and a federal republic cannot — as reflected in the famous Article 79(3) eternity clause (
Despite its origins as an ‘imposed’ constitution, not to mention the unique historical and political circumstances of post-WWII Germany, the Basic Law and the accompanying jurisprudence of the German Constitutional Court has undoubtedly been influential.
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There are nevertheless grounds — which have been articulated from a perspective internal to post-WWII German constitutional thought — to doubt the doctrinal cogency and normative desirability of a jurisprudence grounded in broad constitutional values. The first set of reasons reflects a fundamental suspicion of values as a jurisprudential concept. Associated most closely with Böckenförde (a justice on the German Constitutional Court between 1983 and 1996), this critique offers some important insights. Yet one does not need fully to subscribe to Böckenförde’s rejection of a value-based conception of law in order to identify problems with the functionalist model examined in the previous section. For (and this is the second set of reasons) prominent
Published in the early 1990’s, Böckenförde’s critique of a ‘values-based grounding of law’ combines historical and jurisprudential analysis with the practical insight and experience of a long-standing justice on Germany’s constitutional court. 79 Some aspects of Böckenförde’s analysis undoubtedly reflect idiosyncrasies of post-WWII German constitutional jurisprudence and not merely on a terminological level. It is also plausible, as discussed below, that Böckenförde’s critique is more persuasive when its scope is restricted to values-subjectivism, as it does not engage in detail with meta-ethical accounts of objective value. 80 Böckenförde’s jurisprudential critique of appeals to values in constitutional interpretation nonetheless has continued relevance across jurisdictions.
Böckenförde defines the ‘values-based grounding of law’ as the jurisprudential position that ‘positive law finds its material basis in values that are to be realised through the law’ and that ‘the legal system itself is an order of values and must present itself as such’. 81 This position seems attractive, Böckenförde notes, because it allows the interpreter to reject a strict positivism, but lacks the conceptual baggage of the natural law tradition. 82 Yet, on closer examination, the grounding of law in values is beset by several difficulties. These difficulties can only properly be appreciated by reference to the conceptual history of values. Böckenförde locates the emergence of the use of value as a ‘category of philosophical grounding’ in the neo-Kantian attempt to compensate for the scientific objectification of nature and associated rejection of a teleological model of natural processes. 83 It became necessary to introduce ‘new categories and forms of articulation for those spheres of reality which could not be grasped and expressed by the science of [natural] causality, including the grounding of ethico-moral conduct and law, lest they present themselves as nothing’. 84 Appeal to values was seen as a way of preserving the idea of human freedom (and associated personal responsibility) consistent with a rigid distinction between the ‘is’ and ‘ought’. 85 Values nonetheless have a ‘mode of being’ which renders their legal application problematic. Values are inherently ‘aggressive’, because ‘they possess their actuality only in their validity’: they do not exist independently of the act of valuing and are not subject to the yardstick of reality. 86 The ‘validity’ of values is dependent upon their realisation and implementation. As a consequence, it is inherent to the logic of values that they seek to be fully realised. 87 The values of freedom and security, for example, conflict in concrete cases, but there is no objective criterion on a value-based conception of law for determining which value should be privileged in any context.
On the basis of these theoretical considerations, Böckenförde identifies three fundamental problems with a values-based grounding of the constitutional order. In the first instance, the ‘ethics of value’ is better suited to explain moral than legal conduct. The grounding of law in values leads to a ‘moralisation’ of the law, because ‘the move to base the law on values and define it as a realisation of values provides the legitimation for — perhaps even demands — that one take everything that confronts the moral subject in values as demands on his ethical freedom and turn it into the content of what is rendered legal with an aim at unconditional adherence and enforceability’. 88 In the process, the distinctive methodology and rationality of law (for Böckenförde its ‘character as a universal order guaranteeing the possibility of freedom’) is undermined. 89 Secondly, a value-based grounding of law lacks a ‘rational argumentative foundation’, because it ultimately refers only to ‘valuations’. 90 If values are seen as ‘subjective’, then they are ‘mere’ preferences which are not amenable to questions of right and wrong and true and false. 91 If values are asserted to be ‘objective’, however, Böckenförde argues, then this only exacerbates the problem of rational foundations on the practical level, insofar as modern legal systems are designed to resolve reasonable disagreement under conditions of pluralism. 92 Böckenförde notes presciently here that ‘the raising of an absolute claim for content that exists only in the immediate subjective certainty’ is a form of ‘fanaticism’. 93 Thirdly, at the specific level of constitutional interpretation, values offer a mere legitimating ‘semblance’ of an objective or rational grounding. 94 This makes the legal system more vulnerable to capture by the subjective views of elites and/or prevailing or hegemonic conceptions of values in a society. 95 A values-based grounding of law promotes the entry of ‘methodologically uncontrollable subjective opinions and views on the part of judges and law teachers, and of the prevailing values and valuations of the day within society, into the interpretation, application and the further development of law’. 96
Böckenförde’s critical discussion of values jurisprudence is motivated in large part by concerns regarding the indeterminacy and openness of judicial reasoning grounded in values. 97 The German Constitutional Court’s proportionality reasoning has tended, from Böckenförde’s perspective, to be ‘devoid’ of objective criteria, and hence to collapse into relatively unconstrained processes of practical reasoning which ‘weigh’ incommensurable values in line with prevailing popular or elite opinion. 98 It is certainly possible to respond in this context that Böckenförde’s critique is too quick in assuming that ‘objective values’, on closer examination, are really ‘subjective values’ that have been dignified through widespread acceptance. There are a range of positions in contemporary jurisprudence which seek to uphold, based on meta-ethical premises, an account of objective values that falls short of a ‘values-Platonism’, while also resisting that conclusion that values are merely subjective preferences. Andrei Marmor, for example, has argued that while values are ‘not qualities of objects, or aspects of the world’, they are conclusions we draw from our interaction with the world, so that it is possible to subject our evaluations to judgements of truth and falsity. 99 It is also instructive that, despite significant divergences in other respects, Joseph Raz and Ronald Dworkin both accept the possibility of objectivity in value judgements and postulate the dependence of value on social practices. 100 Dworkin favours an integrative model of the relations among values (the ‘unity of value’), which allows for objective assessment of value-claims. 101 For Raz, who accepts pluralism and the incommensurability of values, ‘the primary way of identifying that something is of value’ is that ‘it has features or relations that make it valuable, features and relations that we can understand’. 102 This connects practical reasoning about values to experience, explanations of the point of social practices and the development of a network of moral propositions, rather than to mere subjective ideas or preferences absent any objective criteria. 103
On balance, Dixon’s functionalism might be most charitably understood as defending an account of constitutional values which assumes the dependence of value judgements on embedded social practices and forms of explanation that can be assessed by objective criteria, rather than as upholding a values relativism or subjectivism. The central question here, however, remains the role of values in constitutional interpretation. Böckenförde’s critique of the tendency for appeals to values to promote indeterminacy and openness in judicial reasoning remains salient in relation to more expansive appeals to normative criteria beyond constitutional text, structure and history.
The continued cross-jurisdictional relevance of Böckenförde’s critique is evident from the following example. 104 In a common law context, one finds adjacent concerns regarding judicial reliance on values expressed in relation to the UK Supreme Court’s jurisprudence on the ‘principle of legality’. 105 Jason N E Varuhas’ discussion of the UK Supreme Court’s recognition of values as ‘trigger norms,’ for instance, addresses noticeably similar themes to those in Böckenförde. 106 The UK Supreme Court’s approach, Varuhas notes, entails that values ‘are elevated from the substrata that underpins legal norms to the surface level of the law, themselves now having the status of legal norms and, where engaged, having direct legal consequences’. 107 Varuhas queries in this context the rational basis for the selection of values as triggers and the justification for their expansion. Although political constitutional principles and values may have existed within the UK constitution, they were not recognised as legal norms as such. 108 More generally, Varuhas argues that judicial review in the United Kingdom can increasingly be seen to rest on a process whereby judges identify a set of values, principles, interests or rights, ‘which they consider important and relevant to the case at hand’, and then assign these weight so that they can be subjected to an open ended-balancing method. 109 In its reliance on broader political values, this ‘open-ended’ approach to public law adjudication (influenced by the proportionality jurisprudence of the German Constitutional Court) undermines the ‘maintenance of a rationally ordered system of law and [its] coherent development’ through legal categorisation. 110 It also embodies a shift from courts exercising a ‘secondary, supervisory jurisdiction’ towards the possession of a ‘primary or original power of decision’. 111 Similar concerns, as is explored in Section IV, apply to Dixon’s functionalism.
Two counterarguments to these concerns regarding the role of values in constitutional reasoning and interpretation are as follows. The first objection is that, whether one laments the fact or not, values are an inevitable part of public law. Christian Starck, for example, has defended this necessity claim in relation to the jurisprudence of the German Constitutional Court, arguing that the more important issue is the selection of the values on which a legal order is based.
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The second is that while the argument that broad
It is not uncommon, as a matter of terminology, for judges and public law scholars to treat ‘constitutional principles’ and ‘constitutional values’ as roughly equivalent or even synonymous. 113 A widespread lack uniformity and precision in the application of the concepts of constitutional principles and values is, however, a major source of confusion that should be avoided. The tendency, seen in Section II, for Dixon’s functionalism to vacillate between a relatively uncontentious subtle variation of purposivism and a more radical position introducing substantive political values into the law is an instructive example. 114 The ambiguities in Dixon’s functionalism point to the need for a more systematic distinction between constitutional principles and values.
Robert Alexy’s theory of basic constitutional rights is an instructive starting point in this context because it demonstrates that a clear distinction between principles and values need not derive from wholesale scepticism about the latter.
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Alexy, in his theory of basic rights, defends (and seeks to ‘rehabilitate’) the proposition that the constitution expresses a value order.
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All legal norms, according to Alexy, fall within the two categories of principles and rules.
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A rule is a legal norm which requires its addressee to do exactly what it asks, neither more nor less.
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A principle is a legal norm that requires that something be ‘optimised’ or realised to the greatest possible extent. Although principles are demands for optimisation, they are always
For Alexy, principles are not definitive like rules; they are ‘flexible’ and have the capacity to be ‘optimised’ or satisfied to various degrees. Principles are also, however, to be distinguished from values. Alexy distinguishes the two by characterising the former as ‘deontological’ concepts concerned with the ‘ought’, and the latter as ‘axiological’ concepts concerned with the good.
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In elaborating the values jurisprudence of the German Court, Alexy does contend that statements about principles are ‘structurally equivalent’ to statements about values.
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For Alexy, that is to say, what is ‘axiologically the best is deontologically what ought to be’.
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Yet, and this is the decisive point here, Alexy also argues that it is preferable to speak of constitutional principles instead of values in
My intention here is not to endorse wholesale Alexy’s distinction between constitutional principles and values. The claim that statements about principle and value are ‘structurally equivalent’ is intelligible for a ‘substantive’ constitution like the Basic Law but less suitable for more ‘procedural’ constitutions. Alexy’s analysis does, however, provide the foundation for a more general analytical distinction between (i) constitutional principles as legal norms that (while not definitive like rules) are firmly grounded in the text, structure and history of a constitution and (ii) values as extra-legal norms derived from broader societal political and moral attitudes, preferences and ideals. The advantage of this way of formulating the distinction is that it guards against the conflation of principles internal to a legal system and more indeterminate moral and societal values. Constitutional principles, on this conception, are legal norms with an associated ‘ought’ character, which implies that their interpretation should be guided by distinctively legal norms of rationality.
Despite the frequent confusion of constitutional principles and values, a firm conceptual distinction is both possible and doctrinally cogent. Importantly, this still holds, my discussion of Alexy suggests, even if one is resistant to Böckenförde’s strident critique of values jurisprudence and broadly accepts the constitutional methodology of the German Constitutional Court. The ‘values’ of the German Constitutional Court are, in Alexy’s influential account, structurally equivalent with constitutional principles, understood as obligatory legal norms. Such ‘values’, that is to say, are not to be identified with extra-legal moral or political preferences or normative ideals.
IV Constitutional Principles and Values
In the previous section, I considered two quite contrasting approaches to constitutional values in the German jurisprudential tradition. The section began by examining Böckenförde’s concerns regarding the tendency for appeals to values to promote undesirable levels of indeterminacy and openness in judicial interpretation and to introduce subjective opinions and currently prevailing conceptions of morality into the reasoning of constitutional courts. I then turned to Alexy’s defence of the German Basic Law as an order of values. While Alexy ascribes a central place to values in his theory of constitutional basic rights, his account rests on the proposition that constitutional values are structurally equivalent to principles. Constitutional values in Alexy’s sense are therefore not to be identified with extra-legal values derived from subjective opinions or broader commitments of political morality. Despite their significant divergences, in other words, Böckenförde and Alexy both accept, from a terminological and conceptual point of view, the need to distinguish between constitutional principles (or ‘values’) and a more expansive extra-legal conception of values. This final section begins by elaborating on the above distinction, which I develop in dialogue with two leading recent accounts of constitutional principles. The section concludes by returning to Dixon’s functionalism in light of the distinction between principles and extra-legal values and by considering the distinction’s application to Australian constitutional law.
Neves’ important recent work helps to further sharpen the distinction between, on the one hand, constitutional principles, and on the other, values of political morality. Like Alexy, Neves categorises legal norms as either rules or principles, with the former providing ‘definitive’ reasons for the settling of legal disputes. 126 While principles are norms internal to a legal order, and hence connected to constitutional text, structure and history, they operate at the ‘reflexive’ level of justification. 127 Principles are legal norms enabling the ‘construction or reconstruction of rules’ and are ‘dependent’ on the latter. 128 This dependence does not reduce the necessity or importance of constitutional principles: a constitution comprised only of rules and lacking the flexibility of principles would be inadequate for a complex modern society. 129 Principles are nonetheless ambivalent. They have a ‘destabilising’ character, because the flexibility they provide to the interpreter has the potential to promote uncertainty and — particularly where they are not firmly grounded in rules — to facilitate the intrusion of power, money and ‘moralism’ into the legal system. 130 The grounding of principles in rules (and constitutional text, structure and history) nevertheless alleviates the worst excesses of these tendencies. The same cannot be said for moral and political values which, as extra-legal norms drawn from wider societal attitudes and preferences, are less amenable to domestication by rational constraints of legal methodology. 131
Constitutional principles, on Neves’ model, are hence ‘reflexive’ legal norms which subserve the interpretation of definitive legal rules. In contrast to extra-legal moral and political values, constitutional principles can, and should, be firmly located in the text, structure and history of a constitution and its associated interpretative development. While constitutional principles serve justificatory aims, operating at a ‘meta-level’ in relation to textual provisions, they are legal norms resting on determinate legal content and are thus distinguishable from moral and political values.
Mitchell N. Berman offers a different model of constitutional principles. According to Berman, ‘rules are sufficiently determinate to adequately serve the [legal] system’s core conduct-guidance function, whereas principles do not purport to determine action but rather have … a dimension of weight’. 132 Whereas Neves regards principles as ‘reflexive’ legal norms grounded in rules, however, Berman argues that ‘[c]onstitutional rules are determined by the interactions of our constitutional principles’, which are in turn grounded in social and psychological facts. 133 Principles are ascribed a determinative or constitutive role; individually and in combination they provide the normative framework within which legal norms that determine action are established and interpreted. In an American context, for example, the principles of democracy and popular sovereignty, reflected in the text of the US Constitution, but also constitutional history and judicial precedent, speak to the need to enact laws that do not ‘unreasonably entrench and augment the influence of powerful factions’. 134 Principles of liberty and autonomy similarly motivate, for Berman, enactment of legal norms that respect the bodily integrity of persons and also their pursuit of individual happiness. 135
Berman is nonetheless clear — and here his position mirrors that of Neves — in upholding a demarcation between constitutional principles and political morality. 136 While acknowledging that commitments of political morality may influence the constitutional principles we discern or select, Berman also seeks to avoid ‘Dworkinianism’. 137 Constitutional principles for Berman, that is to say, are internal to law as an artificial normative system. 138 Even though Berman rejects originalism and the proposition that all constitutional principles are derivative from text, his analyses of specific principles refer to the codified US Constitution, Supreme Court rulings and the US legal tradition. 139
The otherwise diverse accounts of constitutional principles in Alexy, Neves and Berman converge on one fundamental proposition. Constitutional principles are legal norms distinct from broader moral and political values. Regardless whether constitutional principles are seen as optimisation requirements, higher-order reflexive norms, or determinants of legal rules, that is to say, they are legal norms internal to a constitutional system and subject to its distinct interpretative constraints.
Where does this leave, however, realist appeals to the inevitability of the intrusion of extra-legal values into the law? From the perspective of a normative theory of adjudication, it would seem beside the point that judges are in fact sometimes influenced by broader moral or political considerations. As William Baude suggests in his discussion of originalist commitments, it is implausible to think that appeals to text, structure and history can offer a watertight ‘external’ constraint on judicial practice. 140 From a normative viewpoint, if one accepts that a primary function of modern legal systems is to offer rational guides to conduct under circumstances of pluralism and widespread disagreement on comprehensive doctrines, then legal officials, particularly the judges of apex courts, both can and should orient their interpretative methodology to principles internal to a constitutional system of legal norms rather than political values. 141 This is ground zero, in the sense that the rejection of this normative claim would also undermine the rationale for the establishment of a liberal democratic constitutional order in the first instance.
Even if one disagrees with these high-level normative claims regarding constitutional legitimacy, moreover, the realist objection has limited force on a more analytical level. The reason for this is that constitutional principles, in the sense outlined here, are flexible enough to accommodate considerable interpretative debate and disagreement, which leaves ‘realist’ claims regarding the unavoidability of recourse to substantive political morality both unnecessary and unmotivated.
In order to make good on these claims, it is instructive to apply Neves’ model of principles to Australian constitutional circumstances.
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Consider Section 116 of the
This explanatory model can also be applied to slightly more complex cases. It is plausible that the rule of law — particularly if taken in a broad Diceyean sense — is an Australian constitutional principle, despite the fact that there is no specific provision of the Constitution which stipulates in so many words that the ‘rule of law’ is a legal norm.
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In the case of the rule of law, it is necessary to derive a constitutional principle from broader textual, structural, historical and purposive considerations. On closer consideration, such a derivation is clearly viable. Section 51 prefaces its various legislative heads of power with the statement that the provision is ‘subject’ to the Constitution. This can be reasonably (and is usually) taken to imply, as Nicholas Aroney argues, that ‘the power of the Parliament to make laws is not only conferred by the Constitution but also limited (subject) to it’.
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Lisa Burton Crawford identifies other evidence for regarding the rule of law as a constitutional principle.
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Covering Clause 5 of the Constitution states expressly that laws made by the Parliament are binding upon ‘courts, judges and people of every State and of every part of the Commonwealth’.
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Burton Crawford also explicates the rule of law implications of Chapter III provisions on judicial power: of particular relevance here are section 71 (empowering the High Court to exercise the judicial power of the Commonwealth) and section 75(v) (granting the High Court power to hear matters in which remedies are sought against ‘officers of the Commonwealth’).
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Furthermore, and turning to judicial construction, Burton Crawford notes that the High Court’s invalidation of the
What are the implications of these observations on constitutional principles for Dixon’s functionalism? On the one hand, many of Dixon’s statements on interpretative method conform with this account. It is uncontentious, for example, that Aroney’s and Burton Crawford’s analyses of the rule of law are consistent with Dixon’s prescription to engage seriously with ‘the text, history and structure of a constitution’. 151 As Aroney notes, such engagement has a salutary ‘disciplining’ effect; it helps ‘to ensure that ‘meanings are not attributed to the Constitution as a result of the interpreter’s personal preferences and predilections’. 152 On the other hand, Dixon’s appeal to ‘normatively attractive’ political and moral values is difficult to interpret as anything other than an exhortation to import broader values external to the legal order into constitutional interpretation.
In sum, the analysis in this section confirms that Dixon’s tendency to run together (under the rubric of ‘constitutional values’) well-attested doctrine and substantive moral and political considerations flows from the lack of a clear distinction between principles and values. Gabrielle Appleby and Brendan Lim allude to this point in their discussion of Dixon’s interpretative methodology. According to Appleby and Lim, it is useful to differentiate between ‘mandatory … rules standards or principles with more determinate legal contours’ and ‘the indeterminacy and choice’ distinctive of constitutional values. 153 Yet Dixon rejects this classification, perhaps on the basis that ‘[c]onstitutional values could equally be regarded as constitutional “principles,” or purposes in the objective sense’. 154 Dixon’s response is puzzling, however, because elsewhere she insists, as noted in section II, that recourse to substantive values is inevitable and normatively desirable when judicial interpretation grounded in text, history and structure runs out of resources. A clear distinction between (i) constitutional principles as legal norms grounded in constitutional text, structure and history and (ii) extra-legal moral and political values can remove this ambiguity.
Once constitutional principles are understood as reflexive or determinative legal norms, then it is doubtful whether recourse to substantive values is in fact necessary in ‘difficult’ cases. Constitutional principles can themselves, on the model above, accommodate flexible and diverging interpretations of constitutional content by reference to text, history and structure. An obvious example of this in an Australian context is the derivation of the implied freedom of political communication from ss 7, 24 and 128 of the Constitution, where these provisions have been read as supporting more fundamental principles of representative and responsible government and popular sovereignty. While the implied freedom, considered as a putative constitutional principle, is more ‘reconstructive’ than ‘religious freedom’ or the ‘rule of law’, its initial development by the High Court was nonetheless informed by an
This claim can be elaborated by reference to a recent implied freedom case decided by the High Court. In the 2019
According to the plurality in
The ambiguous appeal to constitutional values in
V Conclusion
The overarching intention of this paper has been to clarify the terms of the debate on Australian constitutional values by developing a distinction between constitutional principles firmly grounded in text, structure and history, and a more expansive conception of values derived from political morality. I began by considering Dixon’s recent proposal for a functionalist approach to judicial reasoning, which tends to equivocate between a variant of purposivism, and a more expansive advocacy of the need for judges to be transparent about broader normative commitments. I then moved to a comparative register, examining two contrasting accounts of constitutional values in the German tradition, which both converge on the requirement for a distinction between constitutional principles (or ‘values’ in an objective sense) and a more expansive extra-legal sense of values. In the final section, I then elaborated on the distinction between constitutional principles and extra-legal values and examined
It is at least questionable whether the High Court’s appeal to ‘constitutional values’ in
Footnotes
ORCID iD
