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ALTA Law Research Series |
Last Updated: 16 August 2010
THE THEORY OF SOVEREIGNTY AND THE IMPORTANCE OF THE CROWN IN THE REALMS OF THE QUEEN
Noel Cox[1]
ABSTRACT
As a general rule, in those countries which acknowledge Elizabeth II as
Queen, the legal and political entity known as the Crown is
legally important
because it holds the conceptual place held by the State in those legal systems
derived from or influenced by the
Roman civil law. Not only does the Crown
provide a legal basis for governmental action, but it provides much of the legal
and some
of the political legitimacy for such action.
At the most abstract
level, the absence of an accepted concept of the State in England required the
Crown to assume the function of
source of governmental authority. This might be
called the conceptual or symbolic role of the Crown. This tradition has been
followed
in New Zealand, as it has everywhere the Crown has been established.
The physical absence of the person of the monarch prevented an undue
emphasis upon personality, and encouraged the development a more
conceptual- if
not principled- view of the Crown.
The Crown is legally important because it holds the conceptual
place held by the State in those legal systems derived from or influenced
by the
Roman civil law.[2] Not
only does the Crown provide a legal basis for governmental action, but it also
provides much of the legal and political legitimacy
for such action. Symbolism
can be very important as a source of authority, and is not merely indicative of
it,[3] and the Crown is
essentially a symbol of government.
The role of the Crown as a legitimising
principle is arguably more evident in New Zealand than in otherwise comparable
countries,
such as Australia and Canada. As a signatory to the Treaty of
Waitangi 1840 (which has been described as the founding document of
the
country), it would appear that the Crown may have acquired a degree of authority
which is now independent from its British origins.
On another conceptual
level, the technical and legal concept of the Crown pervades the apparatus of
government and law in New Zealand,
as it has in other similar countries. The
Crown pervaded, to a degree, the whole apparatus and symbolism of
government.[4] But at
the same time there is a divergence between orthodox constitutional theory and
the modern political reality, in that the trappings
of monarchy do not reflect
the reality of political power. This is especially important at a time that the
traditional structure
of government is being challenged, both by calls in New
Zealand for Maori sovereignty or
self-government,[5] and
by suggestions for the adoption of a republican form of government.
The
Crown is not essential to the legitimacy of government in New Zealand, any more
than it is in any other country, but it does confer
some legitimacy upon the
existing regime.[6] Some
appreciation of orthodox constitutional theory is necessary, so that one of the
bases for political legitimacy may be seen.
This paper seeks to identify
some of these constitutional theories, and, for illustrative purposes, place
them in their New Zealand
context. Firstly, it looks at the role of the
Sovereign as legal head of the executive government. In this, the Crown is the
functional
head of the executive branch of government. This might be called the
practical role of the Crown. The first section will examine
the contemporary
relevance of this traditional role. It will be argued that it is important
because the Crown retains a practical
role as the mechanism through which the
daily business of the executive government is conducted.
The second section
considers the broader concept of the Crown as the focus of sovereignty. In this
respect the Crown is a legal source
of executive authority, not simply the means
through government is conducted. But it is not the Sovereign him or herself who
rules;
rather they are the individual in whom is vested executive powers, for
the convenience of government. This might be called the legal
role of the Crown.
This is important because it shows that the Crown retains significant legal
powers upon which executive authority
is based. Thus, the Crown remains useful
as a source of governmental legal authority.
The third section examines some
aspects of State theory. The absence of an accepted concept of the State in
England required the Crown
to assume the function of source of constitutional
authority. This tradition has been followed in New Zealand, and this has
important
consequences, particularly in relation to the Treaty of Waitangi. This
might be called the conceptual or symbolic role of the Crown.
This is important
because the Crown fulfils the function exercised by a State in many other
jurisdictions, yet the Crown is not simply
a metonym for the State.
B. THE SOVEREIGN AS LEGAL HEAD OF THE EXECUTIVE GOVERNMENT
New Zealand statutes have tended to use the terms 'Her Majesty the Queen' and
'the Crown' interchangeably and apparently
arbitrarily.[7] There
appears to have been no intention to draw any theoretical or conceptual
distinctions between the terms. This may simply be
a reflection of a certain
looseness of drafting, but it may have its foundation in a certain lack of
certainty felt as much by draftsmen
and members of Parliament as by the general
public.[8]
'The
Crown' itself, in British and Commonwealth jurisprudence, is a comparatively
modern concept.[9] As
Maitland said, the king was merely a man, though one who does many
things.[10] For
historical reasons the king or queen came to be recognised in law as not merely
the chief source of the executive power, but
also as the sole legal
representative of the State or organised
community.[11]
According to Maitland, the crumbling of the feudal State threatened to break
down the identification of the king and State, and as
a consequence Coke recast
the king as the legal representative of the
State.[12] It was Coke
who first attributed legal personality to the
Crown.[13] He recast
the king as a corporation sole, permanent and
metaphysical.[14]
The king’s corporate
identity[15] drew
support from the doctrine of succession that the king never
dies.[16] It was also
supported by the common law doctrine of seisin, where the heir was possessed at
all times of a right to an estate even
before
succession.[17]
Blackstone explained that the king:
is made a corporation to prevent in general the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the Crown entire.[18]
Thus the role of the Crown was eminently practical- to hold the executive
power in the land. In the tradition of the common law constitutional
theory was
subsequently developed which rationalised and explained the existing practice,
as, for example, in the development of
the law of succession to the
Crown.[19]
Generally,
and in order to better conduct the business of government, the permanent and
undying Crown was accorded certain privileges
and immunities not available to
any other legal
entity.[20] Blackstone
observed that '[t]he King is not only incapable of doing wrong, but even of
thinking wrong; he can never mean to do an
improper thing, in him is no folly or
weakness'.[21]
Mathieson has proffered the notion that the Crown may do whatever statute or the
royal prerogative expressly or by implication authorises,
but that it lacks any
natural capacities such as an individual or juridical entity may
possess.[22]
In
the course of the twentieth century the concept of the Crown succeeded the king
as the essential core of the corporation, which
is now regarded as a corporation
aggregate rather than a corporation
sole.[23] In a series
of cases in both the United Kingdom and New Zealand we can see the courts
struggling to categorise the nature of the
Crown.[24]
In
Re Mason[25]
Romer J. stated that it was established law that the Crown was a corporation,
but whether a corporation sole (as generally accepted)
or a corporation
aggregate (as Maitland argued) was uncertain. Maitland believed that the Crown,
as distinct from the king, was anciently
not known to the law but in modern
usage had become the head of a 'complex and highly organised "corporation
aggregate of many”-
of very
many'.[26] In Adams
v Naylor,[27]
nearly twenty years later, the House of Lords adopted Maitland’s legal
conception of the
Crown.[28]
Although the House of Lords in 1977, in Town Investments v Department of
the
Environment,[29]
accepted that the Crown did have legal personality, it also adopted the
potentially confusing practice of speaking of actions of
the executive as being
performed by 'the government' rather than 'the
Crown'.[30] The
practical need for this distinction is avoided if one recognises the aggregate
nature of the
Crown.[31] 'The
government' is something which, unlike the Crown, has no corporate or juridical
existence known to the constitution. Further,
its legal definition is both
legally and practically unnecessary.
In Town
Investments[32]
Lord Simon, with little argument, accepted that the Crown was a corporation
aggregate, as Maitland had believed. This appears to
be in accordance with the
realities of the modern State, although it was contrary to the traditional view
of the Crown. Thus, the
Crown is now seen, legally, as a nexus of rights and
privileges, exercised by a number of individuals, officials and departments,
all
called 'the Crown'.
However, more recently, in M v Home
Office,[33] the
English Court of Appeal held that the Crown lacked legal personality and was
therefore not amenable to contempt of court
proceedings.[34] But
it is precisely because in the Westminster-style political system in the United
Kingdom there was no the Continental-style notion
of a State, nor an entrenched
constitution,[35] that
the concept of the Crown as a legal entity with full powers in its own right
arose. Town
Investments[36]
must in any event be regarded as the definitive statement of current English
law.
The development of the concept of the aggregate Crown from the
corporate Crown provides sufficient flexibility to accommodate the
reality of
government, without the need for abandoning an essential constitutional
grundnorm[37] in
favour of a very undeveloped and inherently vague concept of 'the
government'.[38] Thus,
for reasons principally of convenience, the Crown became an umbrella beneath
which the business of government was conducted.
The Crown has always operated
through a series of servants and agents, some more permanent than others. The
law recognises the Crown
as the body by whom the business of executive
government is
exercised.[39]
Whether there is a Crown aggregate or corporate, the government is that of
the Sovereign,[40] and
the Crown has the place in administration held by the State in other
constitutional traditions. The Crown, whether or not there
is a resident
Sovereign, acts as the umbrella under which the various activities of government
are conducted, and with whom, in the
New Zealand context, the Maori may
negotiate as Treaty of Waitangi
partner.[41] Indeed,
in this country the very absence of the Sovereign has encouraged this modern
tendency in New Zealand for the Crown to be
regarded as a concept of government
quite distinct from the person of the
Sovereign.[42]
The
monarchy does however have a role beyond the symbolic. In his analysis of the
Crown in his own day (1865), Bagehot seriously underestimated
its surviving
influence.[43] His
famous aphorism, that a constitutional Sovereign has the right to be consulted,
to encourage, and to
warn,[44] can hardly
express the residual royal powers of even the late nineteenth
century.[45] It may
describe the royal powers today, but does not explain why the inherited concept
of the supremacy of the Crown should leave
the constitution so centred upon an
institution lacking real power.
But Bagehot, like Palmerston and Gladstone
wanted the monarchy relegated to the status of a museum piece, despite the
Sovereign’s
'right to be consulted, to encourage, and to
warn'.[46] This
passive role was not that envisaged by George IV, William IV, Victoria or Edward
VII, nor that held by the majority of statesmen
and textbook writers over this
period. The latter felt that the Sovereign’s role as head of State in a
popular parliamentary
system had still to be satisfactorily defined, and might
well be rather wider than that assigned to it be
Bagehot.[47]
Dicey
and Anson, the leading authorities of their own day, were inclined to advocate a
stretching of the royal discretion, and, to
some extent at least, the monarchy
appeared to operate at a political level under Edward VII in much the same way
as it did under
George
IV,[48] though there
had been a clear change in the basis of royal authority. This was now almost
totally dependent upon parliamentary support.
But there has been no
comprehensive study which offers evidence to show that the exercise by the Crown
of the rights to be consulted,
to encourage, and to warn, has influenced the
course of policy,[49]
though instances have been
recorded.[50]
C. THE CROWN AS THE FOCUS OF SOVEREIGNTY
The Crown is more than just the mechanism through which government is
administered. It is also itself one of the sources of governmental
authority, as
a traditional source of legal sovereignty. Not only is government conducted
through the Crown- as discussed above-
but some governmental authority is
derived from the Crown, as the legal focus of sovereignty.
'Sovereignty' put
simply, is the idea that there is a 'final authority within a given
territory'.[51] But a
definition is not enough; an explanation of its role or purpose in a society is
arguably more important. Foucault has identified
four possible descriptions of
the traditional role of sovereignty:
(i) to describe a mechanism of power in feudal society;
(ii) as a justification for the construction of large-scale administrative monarchies;
(iii) as an ideology used by one side or the other in the seventeenth century wars of religion; and
(iv) in the construction of parliamentary alternatives to the absolutist monarchies.[52]
Whichever rationale applied to the embryonic English Crown, the old theory
of sovereignty has been democratised since the nineteenth
century into a notion
of collective sovereignty, exercised through parliamentary institutions. The
fundamental responsibility for
the maintenance of society itself is much more
widely dispersed throughout its varied institutions and the whole population. To
some
degree this equates to the concept of the aggregate Crown favoured by the
more recent
jurists.[53]
But
the concept of sovereignty, however understood, is especially important because
it has become part of the language of claims by
indigenous people, as in New
Zealand, where Maori claims are based on the conflicting concept of tino
rangatiratanga, or chiefly
authority.[54] The
particular problems this causes in New Zealand cannot be examined here, but
briefly it represents the claims of an antecedent
regime to survival despite
apparently ceding sovereignty to the Crown in the Treaty of Waitangi. Indeed, it
is significant that most
talk of 'sovereignty' in the second half of the
twentieth century concentrated upon the sovereignty of racial groups, and
particularly,
the so-called indigenous
peoples.[55]
Sovereignty
has assumed different meanings and attributes according to the conditions of
time and place, but at a basic level it requires
obedience from its subjects and
denies a concurrent authority to any other
body.[56] In New
Zealand and elsewhere the Sovereign is formally responsible for the executive
government, and indeed is specifically so appointed
by the Constitutions of most
Commonwealth countries of which Her Majesty is head of
State.[57]
It will
be immediately apparent that there is a divergence between abstract law and
political reality, for substantial political power
lies in politicians rather
than the Sovereign. Political orthodoxy also appears to hold that for a
constitution to be legitimate
it must derive from the people. Yet, the New
Zealand constitution is not apparently based legally on the sovereignty of the
people,
but rather on that of the Queen-in-Parliament.
In the Westminster
tradition, it is Parliament, in contrast to the Crown, which is widely regarded
as being the focus of political
power.[58] Joseph
assumed therefore that it is the people rather than Parliament who is
sovereign.[59] But it
would seem that sovereign authority is legally vested in the
Crown-in-Parliament, politically in the
people.[60] Legally,
this can be seen as less than ideal or even confused, but a constitution is more
than merely a legal
structure.[61]
The
authority of government is based upon several sources. Even were authority
legally derived from the people, as it appears to now
be in
Australia,[62] it is
not clear how the position of the Maori people of New Zealand can be
reconciled,[63] in
particular, the preservation of their tino rangatiratanga, or chiefly
authority. For the Maori retained to themselves at least some degree of
political power under the Treaty of Waitangi,
power which has its origins in
traditional sources rather than the popular will. The Crown also claims some
degree of authority based
upon traditional sources, including mystique and
continuity.[64]
The
origins and nature of constitutional authority, whether in a monarchy or a
republic, are important. But although a constitution
can say, as does that of
Papua New Guinea, that it is derived from the popular sovereignty of the
people,[65] this may
be confusing legal with political authority.
[66] Where the Crown exists, and no
formal entrenched constitution has been adopted, difficult questions of the
basis of governmental
authority can be avoided.
There has been to date
comparatively little theoretical analysis of the conceptual basis of
governmental authority in New
Zealand.[67] There has
been much discussion focused on the legitimacy of government derived from the
Treaty of
Waitangi.[68] But
there has been little work done towards an understanding of the nature of
governmental authority in New Zealand, except by those
who argue that there is
too much (or too little) involvement of government in individual
lives.[69] This dearth
of work may be due to
apathy,[70] but it
could also be influenced by an underlying suspicion of abstract theory which can
be traced in British tradition of political
thought from the seventeenth
century, if not
earlier.[71]
But
in Canada there have been several major studies of the conceptual basis of
government. In particular, in 1985 the Law Reform Commission
of Canada released
a working paper which called for a re-examination of the concept of the Federal
Crown in Canadian
law.[72] The working
paper called for the recognition of a unitary federal administration in place of
the legal concept of the
Crown.[73] The paper
specifically asked:
to what extent should Canada retain the concept of the Crown in federal law? Should we replace the concept of Crown with the concept of State or federal administration?
The Commission briefly described what it termed the chaotic and confusing
historical treatment of 'the Crown' in English and Canadian
law. Historical
inconsistencies and contradictions in the treatment of the concept of the Crown
cannot and need not be rationalised.
Judges, legislators, and writers are not
always taking about the same thing. They may mean the Sovereign herself, the
institution
of royal power, the concept of sovereignty, the constitutional head
of State, judicial instructions and
actors.[74]
To
recognise the political reality the authors of the working paper suggested that
the concept of the Crown should be abolished, and
the Sovereign relegated to the
status of constitutional head of
State.[75] Discarding
monarchical terminology and limiting the Crown to its purely formal role would,
in the opinion of the Commission 'reduce
terminological confusion, historical
biases, and anti-democratic and non-egalitarian concepts so far as they affect
individuals in
the relationships between bureaucrats and the
majority'.[76] The
Crown would be replaced by the 'administration'. The authors of the working
paper wanted to recognise the executive branch of
the
State.[77] Others have
also considered the legal nature of the Crown or State in
Canada,[78] but the
issue is not yet
settled.[79]
Cohen
believed that the methodology of the working paper itself was flawed because it
focused on theoretical and abstract analyses
of the
State.[80]
Essentially, the difficulty is that there is no developed concept of the State
or nation in Commonwealth constitutional
theory.[81] Moore
attributes this to parliamentarian mistrust inspired by the association between
civil law and Baconian
theory.[82] It is
equally true that modern theoretical studies of the State have been limited even
in Continental
Europe.[83] But the
modern concept of the State has been described as a critical subject of
inquiry.[84]
In New
Zealand executive authority is also, like Canada, formally vested in the
Crown.[85] The
government does not require parliamentary approval for most administrative
actions; nor need it show popular approval or consent
for these actions-- though
the rule of law and political expediency, and the strictly limited range of
powers held by the Crown,
prevent authoritarian Crown
government.[86]
The
executive authority of a country could be vested in a president, the
Governor-General, or the Queen irrespective of the basis
of sovereignty. But in
our constitutional arrangements the sole focus of legal authority is the
Crown-in-Parliament. This institution
enjoys full legal sovereignty or
supremacy. The Crown itself is allocated executive functions, and, within a
limited field, requires
no other legal authority than its own
prerogative.[87]
This
approach has the advantage of simplicity, leaving broader questions of
sovereignty
unanswered.[88] As
such it owes much to the British tradition of a constitution as something which
evolves, and for which theory is sometimes developed
subsequent to the
practice.[89] One
aspect of this paucity of theory, if it may be so called, is the weakness-- or
absence, of a general theory of the
State.[90]
In
Canada, problems with the place of the French-speaking minority, and the federal
nature of the country, meant that difficult questions
of the location and nature
of governmental authority had to be addressed. Thus, claims by Quebec for
special status within the federation
required an analysis of the nature of power
exercised by federal and provincial governments. The existence of an entrenched
constitution
also meant that this could substitute for the Crown, as in the
United States of America, as a conceptual focus of government.
Clarke argues
that in Canada the marriage of the parliamentary form of government to the
federal principle makes the determination
of legislative authority problematic,
at least in part, because it fails to develop an adequate conceptualisation of
sovereignty.
In the absence of a better understanding authority is described
merely in terms of a division of
power.[91]
There
have been no technical or practical reasons for these difficult questions of the
sources of governmental authority to be answered
in New Zealand. To some extent,
the asking of such questions was also
avoided.[92] Thus, the
existence of the Crown, whilst providing a convenient legal source for executive
government, has also acted as an inhibitor
of abstract constitutional
theorising. As a consequence, in Laski’s view, the Crown covered a
'multitude of
sins'.[93] Loughlin
also has described the Crown as a poor substitute for the State, because the
public and private aspects of the Sovereign’s
responsibilities.[94]
Whilst this might not be desirable it provides a convenient cover behind which
the business of government is conducted, unworried
by conceptual
difficulties.
D. STATE THEORY
The principal reason why the Crown has been regarded as a legal source of
executive authority is historical. Not only is the Crown
a source of legal
authority, it serves to personify the political community. Thus the legal role
of the Crown is important at three
conceptual levels. Firstly, and most
fundamentally, it is a metonym for State. Secondly, it is a source of legal
authority. And thirdly,
it is the means through which government is conducted.
In most political systems the executive power and the State are
synonymous.[95] The
State may be classified as that which refers to some or all of the legal
administrative or legislative institutions operating
in a
community.[96] In the
British system, and those derived from
it,[97] it is
questionable whether there is a State. Most legal commentators had traditionally
given it little treatment, or simply answered
in the negative. Political
scientists considered the question from a different perspective, though not one
which was necessarily
any more
complete.[98]
The
character of communities in the central middle ages was rooted and grounded in
older traditions than those created by the study
of Roman and canon law, which
was the basis for much later conceptualisations of the State in continental
Europe.[99] Nor did
the rediscovery of Aristotle, the development of modern
government,[100] or
demographic and economic changes significantly affect them. The traditional
bonds of community owed much to ties of kinship, much
to loyalties of war-bands,
very much to Christianity, and perhaps most strongly, from legal practices and
values.[101] In
these communities the king was representative of the people, to whom his people
owed allegiance, and who, in turn, was held responsible
for the
government.[102]
Hobbes,
with Bodin, Machiavelli, and Hegel did much to stimulate European State theory,
a theory which has not been fully reconsidered
in the context of the British
constitution since Hobbes and his contemporaries. Hobbes’ Leviathan
(1651) was perhaps the greatest piece of political philosophy written in
the English language. Like Machiavelli's The Prince (1532), it offered a
dramatic break with the usual apologies for the Christian feudal State of the
Middle Ages.
The modern territorial State, the concept of political
absolutism, and the principle of quod principi placuit, legis nabet
vigorem[103]
spelled the end of the mediæval nexus of rights and duties,
counterbalanced powers, and customs. Hobbes excluded religion as
a source of
morality, and based ethical values, as well as political theory, on the human
impulse toward
self-preservation.[104]
The reality of early modern government throughout Europe was that it was
essentially driven by political realists, who sought the
centralisation of power
for the good of the
country.[105]
Since
the modern States inherited the papal (and imperial) prerogative, it must, then,
govern all within the geographical confines
of the country. Speculation in
France was centred on a sovereign State with a royal organ to declare its
sovereign purposes. This
regime collapsed because in eighteenth century France
the political and social atmosphere was similar to that which caused such
profound
changes in England a century earlier.
Inspired by the political
changes in England, and in part directed by the theories of such as
Rousseau[106] and
Montesquieu,[107]
the French people had become the masters of the State. This example was followed
elsewhere in the course of the nineteenth century,
though usually with less
violence.[108]
However,
for two interrelated reasons, the State never became a legal concept in English
law. Most countries have a date at which
they can be said to have begun their
constitutional existence, but not the United
Kingdom.[109] The
need to create (or recreate) a concept of the State has not been generally felt
since 1688,[110] and
even then the feeling was
half-hearted.[111]
Nor was there a general reception of the Roman civil law, with its concept of
the State. The common law was always happier developing
theories to describe the
realities of the law, rather than moulding the law around abstract
theories.[112] 'The
supreme executive power of this kingdom', as Blackstone knew, was vested in the
king;[113] and there
the matter was allowed to rest.
As a consequence of this jurisprudential
weakness, if it can be so called, there had been in the Commonwealth (excepting
perhaps in
Canada) comparatively little thought given to theories of the
structure of the State. In particular, there had been little consideration
of
the theory of government in New Zealand beyond questions of 'State
responsibility', and the proper role of the
State.[114] Yet, the
history of this country, and in particular, the Treaty of Waitangi, makes this a
curious
deficiency.[115]
There has, however, been more consideration given in New Zealand to the more
abstract notions of governmental authority since the
1980s.[116]
Inspired
by the predominantly neo-liberal market-economy reforms initiated by the 1984
Labour
Government,[117]
commentators saw a resurgence of the State as a subject worthy of serious
study.[118] In the
writings of
Mulgan[119] and
Sharp,[120] for
example, are seen the formulation of new conceptions of the State-- though not
ones which necessarily have much direct influence
on politicians or the general
public. The disputes between
neoliberals,[121]
pluralists,[122]
feminists,[123]
Marxists[124] and
others in the 1980s and
1990s[125] have
however begun a process towards developing a comprehensive theory of government.
Few of these studies have considered the Crown as an entity of government.
The ideological dominance of neo-liberalism may be in part
responsible for this,
for whatever its advantages and disadvantages, neo-liberalism is largely
ahistorical. Pluralism, at least in
its classical form, considers more fully the
historical evolution of governmental
institutions,[126]
and this is critical to an understanding of the Crown.
Jacob has postulated
that the notion of the State has now begun to evolve in Britain, as a
consequence of the development of public
law in place of an emphasis on Crown
immunities.[127] His
thesis is that since the Franks Report and the consequent Tribunals and
Inquiries Act
1958,[128] judicial
activism has developed an embryonic
State.[129]
This
has been due, so the argument goes, to the increasingly common platform between
those politicians who desired to 'roll back the
frontiers of the
State',[130] or at
least placed their emphasis on individual rights, and the attitude of judges
asserting the inherent power of the common law.
It was not fashioned out of a
desire for centralised power. It was, according to Jacob, both judicially and
politically created in
order to limit
it.[131]
Modern
Anglo-American constitutional theory is preoccupied with the problem of devising
means for the protection and enhancement of
individual rights in a manner
consistent with the democratic basis of our institutions. In the United Kingdom
the focus is on the
need for, or the advisability of, imposing restraints on the
legislative sovereignty of Parliament.
But it would be precipitant to claim
the development of a State in either New Zealand or the United Kingdom. More in
keeping with
the tradition of historical
development[132]
would be an acceptance of the evolution of a new form of aggregate Crown, one in
which the distinction between person and office
is increasingly
great.[133]
Allegedly right-wing elements in New Zealand opposed the use of the term
'State', and sought alternatives, such as the pre-existing
concept of the Crown,
not because of any attachment to monarchy, but because of opposition to anything
evocative of interventionist
government.[134] In
part because of the neo-liberal attempt to 'roll back the State', there was also
a corresponding weakening of the legal status
of the Crown in late twentieth
century New
Zealand.[135]
However, there has been some work done on the Crown in its role as signatory of
the Treaty of Waitangi, some of which has led to
tentative discussion of
concepts of
government.[136] It
is in this symbolic role that the modern function of the Crown appears to
lie.
It may be that the Sovereign lacks personal power, but the organs of
royal government, whether they are Ministers or departments,
enjoy the benefit
of the residual power of the Crown, as an institution in which the
maiestas of law and government is vested. This institution is more
important that the person of the
Sovereign.[137] The
Crown can be seen as a living thing, personified by the Queen and the
Governor-General, and distinct from any obscure concept
of governmental State.
This was the basis of Bagehot's analysis of the British
constitution,[138]
and it remains important in New Zealand today. The exact definition of the Crown
may at times be uncertain, but it has the advantage
over the State of being the
structure of government which is actually utilised in New Zealand, and therefore
somewhat better known
if not well understood.
In both Canada and Australia
the existence of entrenched constitutions have resulted in at least a partial
shifting of emphasis from
the Crown to the entrenched written constitution.
Indeed, revolutionary necessity required this in the United States of America
more
than two hundred years
ago.[139] But the
technical and legal concept of the Crown continues to pervade the apparatus of
government and law in New Zealand.
No new generally accepted theory of
government has been postulated in New Zealand, nor would such a project be
likely to attract the
attention which it deserves. In so far as such matters
have been considered, the focus has been on the sovereignty, or supremacy
of
Parliament, and the possibility that there may be limits to such
sovereignty.[140]
For Dicey, sovereignty of Parliament was matched by the rule of law, or
supremacy of
law.[141]
Political sovereignty may lie in practice with the
people,[142] but
legally this is less
certain,[143] though
legitimacy derives principally from the people. Indeed, as a constitution
characterised by its uncodified (or 'unwritten')
nature, the New Zealand
constitution cannot be anything but a traditional evolutionary Burkean
type.[144] Yet,
whether this remains the basis of the constitution is uncertain, for two major
reasons.
The non-Maori population of New Zealand seems, by and large,
influenced by basically Lockean ideas of government as a direct
compact.[145] Though
they may not directly question the basis of governmental authority, the
possibility of such questioning in the future cannot
be discounted. This is
particularly so given the impetus to reform given by the introduction of a
system of proportional voting in
1996.[146]
Maori
tend to see government, and society, in more evolutionary
terms.[147] Most
importantly, however, claims to Maori sovereignty do not rest upon claims to
popular sovereignty as such, but upon the cession,
or non-cession, of
kawanatanga[148]
and tino
rangatiratanga[149]
to the Crown in 1840. The sovereignty of the Crown, in the context of the Treaty
of Waitangi, is more than merely a legal doctrine,
it has a continuing political
relevance. Merely redefining the location of sovereignty as the people, a
reconstituted Parliament,
or a president, would not necessarily satisfy the
other party to the Treaty, for it would constitute the removal of one party to
the Treaty.[150] The
difficulty remains to determine what constitutional structures will satisfy both
perspectives.[151]
E. CONCLUSION
This paper has examined the thesis that Crown in New Zealand and other
countries which acknowledge Elizabeth II as Queen is important
legally because
it holds the conceptual place held by the State in those legal systems derived
from or influenced by the Roman civil
law. This is because the Crown provides a
legal basis for governmental action, and because it provides much of the legal
and some
of the political legitimacy for such action.
The starting point for
the examination of this legal legitimacy is the role of the Sovereign as legal
head of the executive government,
what might be called the practical role of the
Crown. In this the Crown retains a practical role as the mechanism through which
executive
government is conducted.
But the broader concept of the Crown as
the focus of sovereignty is also important, arguably more so since the Crown
became increasingly
devoid of real political power during the course of the
twentieth
century.[152] The
Crown is a legal source of executive authority. But it is not the Sovereign him
or herself who rules; rather they are the individual
in whom is vested executive
powers, for the convenience of government. This has arguably led to a
jurisprudential weakness, a point
made strongly in a Canadian report on the
legal structure of the federal
administration.[153]
At
the most abstract level, the absence of an accepted concept of the State in
England required the Crown to assume the function of
source of governmental
authority. This might be called the conceptual or symbolic role of the Crown.
This tradition has been followed
in New Zealand, as it has everywhere the Crown
has been established. This conceptual basis for government is important because
the
Crown fulfils the function exercised by a State in many other jurisdictions,
yet the Crown is not simply a metonym for the State.
This has important
consequences, particularly in relation to the Treaty of Waitangi, in which it is
the Crown which assumed sovereignty
or kawanatanga over New Zealand. The
traditional authority that the Crown confers upon the government-of-the-day may
be relatively slight, but it
remains of at least symbolic importance.
The
physical absence of the person of the monarch has prevented an undue emphasis
upon personality, and encouraged the development
a more conceptual view of the
Crown.[154] Whether
this conception become equivalent to and subsumed into that of a State remains
to be discovered. But it means that the concept
of the Crown remains important
to the system of government in the United Kingdom, New Zealand, Canada,
Australia and similar countries,
even if not all aspects of its symbolism may
apply.
[1]Lecturer in Law at
the Auckland University of Technology, Barrister of the High Court of New
Zealand, and of the Supreme Courts of
Tasmania, New South Wales, South
Australia, and the Northern
Territory.
[2]Though
the term ‘State’ is used in popular (and scholarly) writing, and
there are some instances of official use, it has
an uncertain legal meaning in
New Zealand except as a synonym for the Crown; S Goldfinch ‘The
State’ in R Miller (ed) New Zealand Government and Politics (Oxford
University Press Auckland 2001), pp. 511-520, 511.
[3]J Warhurst
‘Nationalism and Republicanism in Australia’ (1993) 28 Australian
Journal of Political Science 100. See also
Randall Collins Weberian
Sociological Theory (Cambridge University Press Cambridge 1986).
[4]Although it had
also been said, in the nineteenth century, that Great Britain already
effectively had a republican form of government:
‘Our monarchy is only a
pretence’, ... the Sovereign ... ‘only a supernumerary in the
pageant’; English Republic
(1851), vol 1 pp. 355-358. Parallels to this
may be seen in Australia: Brian Galligan ‘Regularising the Australian
Republic’
(1993) 28 Australian Journal of Political Studies 56. Even
Bagehot emphasised the republican nature of the constitution, but he laid
greater weight on the symbolic role of the Crown; Walter Bagehot ‘The
English Constitution’ in The Collected Works of Walter Bagehot ed
Norman St John-Stevas (The Economist London 1974), vol
5.
[5]The actual
meaning of this term is unclear, and seems perhaps to relate more to
self-management than to sovereignty in the nineteenth
century European sense;
Interview with Sir Douglas Graham, former Minister in Charge of Treaty of
Waitangi Negotiations (Auckland,
24 November
1999).
[6]Wade
prefers to uphold the rules legitimated by history, unsatisfying as they may be
to political theorists; Sir William Wade ‘The
Crown, Ministers and
Officials: Legal Status and Liability’ in M Sunkin and S Payne (eds)
The Nature of the Crown: A Legal and Political Analysis (Oxford
University Press Oxford 1999), p.
32.
[7]The word
‘Sovereign’ appears in New Zealand statutes only in the
Sovereign’s Birthday Observance Act 1952. Otherwise
the usage is generally
such as is found in s 2 of the Public Finance Act, where ‘Crown’ is
defined as ‘Her Majesty
the Queen in right of New Zealand; and includes
all Ministers of the Crown and all departments’. Such confusion is also
seen
in the United Kingdom; M Loughlin ‘The State, the Crown and the
Law’ in M Sunkin and S Payne (eds) The Nature of the Crown: A Legal and
Political Analysis (Oxford University Press Oxford 1999), p.
36.
[8]For this
conceptual uncertainty, see J Hayward In search of a treaty partner (PhD
thesis, Victoria University of Wellington, 1995); Interview with Sir Douglas
Graham, former Minister in Charge of Treaty of
Waitangi Negotiations (Auckland,
24 November
1999).
[9]M Loughlin
‘The State, the Crown and the Law’ in M Sunkin and S Payne (eds)
The Nature of the Crown: A Legal and Political Analysis (Oxford
University Press Oxford 1999), p.
36
[10]‘The
Crown as a Corporation’ (1901) 17 Law Quarterly Review
131.
[11]According
to Skinner the formation of the English State has been primarily a political
achievement; Q Skinner ‘The State’
in T Ball, J Farr and RL Hanson
(eds) Political Innovation and Conceptual Change (Cambridge University
Press Cambridge 1989), p. 90 at p. 126 cited in M Loughlin ‘The State, the
Crown and the Law’ in
M Sunkin and S Payne (eds) The Nature of the
Crown: A Legal and Political Analysis (Oxford University Press Oxford 1999),
p. 43. This has also led to a gulf between substance and form; M Loughlin
‘The State,
the Crown and the Law’ in M Sunkin and S Payne (eds)
The Nature of the Crown: A Legal and Political Analysis (Oxford
University Press Oxford 1999), p.
47.
[12]Or, as
Loughlin puts it, rather than adopting a concept of the Crown as a corporation
aggregate which could incorporate the idea of
the body politic and thus form the
basis for the emergence of a modern conception of the State, they appropriated
the only single
person corporation which canon and Roman law had revised; M
Loughlin ‘The State, the Crown and the Law’ in M Sunkin and
S Payne
(eds) The Nature of the Crown: A Legal and Political Analysis (Oxford
University Press Oxford 1999), pp.
55-56.
[13]F
Maitland ‘The Crown as a Corporation’ (1901) 17 Law Quarterly Review
131.
[14]It was as
late as 1861 that the House of Lords accepted that the Crown was a corporation
sole, having ‘perpetual continuance’;
A-G v Kohler [1861] EngR 841; (1861) 9
HL Cas 654, 671
(HL).
[15]A
corporation is a number of persons united and consolidated together so as to be
considered as one person in law, possessing the
character of perpetuity, its
existence being constantly maintained by the succession of new individuals in
the place of those who
die, or are removed Corporations are either aggregate or
sole. A corporation aggregate consists of many persons, several of whom
are
contemporaneously members of it. Corporations sole are such as consist, at any
given time, of one person only; ER Hardy Ivamy
(ed) Mozley and
Whiteley’s Law Dictionary (10th ed
Butterworths London 1988), p. 109.
[16]It was at the
time of Edward IV that the theory was accepted that the king never dies, that
the demise of the Crown at once transfers
it from the last wearer to the heir,
and that no vacancy, no interregnum, occurs at all; Rt Revd William Stubbs
The Constitutional History of England in its origin and development
(4th ed Clarendon Press Oxford 1906), vol 2,
107.
[17]Howard
Nenner The Right to be King- The Succession to the Crown of England,
1603-1714 (Macmillan London 1995), p.
32.
[18]William
Blackstone Commentaries on the Laws of England ed E. Christian (Garland
Publishing New York 1978), Bk. 1 p. 470. That Blackstone was at least partly
incorrect can be seen in the
development of a concept of succession to the Crown
without interregnum of the heir apparent. Since this concept had fully developed
by the time of Edward IV, this cannot have been the principal reason for the
development of the concept of the Crown as a corporation
sole.
[19]Noel Cox
‘The Law of Succession to the Crown in New Zealand’ [1999] WkoLawRw 3; (1999) 7 Waikato
Law Review
49.
[20]BV Harris
‘The ‘Third Source’ of Authority for Government Action’
(1992) 109 Law Quarterly Review
626.
[21]William
Blackstone Commentaries on the Laws of England ed E.. Christian (Garland
Publishing New York 1978), Bk. 1 p.
254.
[22]‘Does
the Crown have Human Powers?’ (1992) 15 New Zealand Universities Law
Review 118. Contrary case law includes Sutton’s Hospital Case
[1572] EngR 402; (1613) 10 Co Rep 23a (CP); Clough v Leahy [1904] HCA 38; (1905) 2 CLR 139, 156-157
(HCA); New South Wales v Bardolph (1934) 52 CLR 455, 474-475 (HCA); R
v Criminal Injuries Compensation Board [1967] 2 QB 864, 886 (HC); Malone
v Metropolitan Police Commissioner [1979] Ch 344, 366 (HC); A-G of Quebec
v Labrecque [1980] 2 SCR 1057, 1082 (SCC); Davis v Commonwealth
[1988] HCA 63; (1988) 166 CLR 79
(HCA).
[23]P Joseph
‘Suspending Statutes Without Parliament’s Consent’ (1991) 14
New Zealand Universities Law Review 282,
287.
[24]To the
question ‘what is the Crown?’ there have been what Wade calls
‘some extraordinary answers’; Sir William
Wade, ‘The Crown,
Ministers and Officials: Legal Status and Liability’ in M Sunkin and S
Payne (eds) The Nature of the Crown: A Legal and Political Analysis
(Oxford University Press Oxford 1999), p. 23.
[25] [1928] 1 Ch
385, 401
(HC).
[26]F
Maitland ‘The Crown as a Corporation’ (1901) 17 Law Quarterly Review
131.
[27] [1946] AC
543, 555
(HL).
[28]It has
also been accepted by the Supreme Court of Canada: Verreault v A-G of
Quebec [1977] 1 SCR 41, 47; A-G of Quebec v Labrecque [1980] 2 SCR
1057,
1082.
[29][1977] UKHL 2; [1978] AC
359 (HL) 400 (Lord
Simon).
[30]Town
Investments Ltd v Department of the Environment [1977] UKHL 2; [1978] AC 359 (HL) 380-381
(Lord
Diplock).
[31]Some
writers, following Town Investments, have preferred the expression
‘government’ rather than ‘Crown’ or ‘State’,
for example BV Harris
‘The ‘Third Source’ of Authority for
Government Action’ (1992) 109 Law Quarterly Review 626, 634-635. The
government has never been a juristic entity, so in trying to abandon one legal
fiction in Town Investments, their Lordships adopted a new one; P Joseph
‘Crown as a legal concept (I)’ [1993] New Zealand Law Journal 126,
129.
[32]Town
Investments v Department of the Environment [1977] UKHL 2; [1978] AC 359, 400
(HL).
[33] [1992] 1
QB 270
(HC).
[34]However,
in the House of Lords, Lord Templeman spoke of the Crown as consisting of the
monarch and the executive, and Lord Woolf observed
that the Crown had a legal
personality at least for some purposes; [1993] UKHL 5; [1993] 3 All ER 537 (HL). Some
commentators have formed the view that M v Home Office [1993] UKHL 5; [1993] 3 WLR 433
(CA) may be the most important case in constitutional law in 200 years; M
Loughlin ‘The State, the Crown and the Law’ in M
Sunkin and S Payne
(eds) The Nature of the Crown: A Legal and Political Analysis (Oxford
University Press Oxford 1999), p. 73 citing Sir William Wade ‘The Crown-
old platitudes and new heresies’ [1992] New Law Journal 1275, 1275; M
Beloff QC, The Times, 28 July 1993; R Brazier, The Guardian, 28 July
1993.
[35]That is,
one which claims for itself legal paramountcy, and which limits executive and
legislative powers in such a way that the constitution
itself, rather than any
institution of government, becomes the focus of critical attention.
[36]Town
Investments v Department of the Environment [1977] UKHL 2; [1978] AC 359, 400
(HL).
[37]In
Kelsen’s philosophy of law, a grundnorm is the basic, fundamental
postulate, which justifies all principles and rules of
the legal system and
which all inferior rules of the system may be deduced; H Kelsen General
theory of norms ed M Hartney (Clarendon Press Oxford 1991); M Hayback
Carl Schmitt and Hans Kelsen in the crisis of Democracy between World Wars I
and II (DrIur thesis, Universitaet Salzburg,
1990).
[38]For a
critique of these propositions generally see P Joseph ‘The Crown as a
legal concept (I)’ [1993] New Zealand Law Journal 126, and P Joseph
‘The Crown as a legal concept (II)’ [1993] New Zealand Law Journal
179; FM Brookfield ‘The Monarchy and the Constitution today’ [1992]
New Zealand Law Journal
438.
[39]Though it
has been said that ‘the manner in which the concept of the Crown has been
utilised borders on the incoherent’;
M Sunkin and S Payne (eds) The
Nature of the Crown: A Legal and Political Analysis (Oxford University Press
Oxford 1999), p.
37.
[40]A concept
which is alive today, in part as a substitute for a more advanced concept of the
constitution; Interview with Sir Douglas
Graham, former Minister in Charge of
Treaty of Waitangi Negotiations (Auckland, 24 November
1999).
[41]Generally,
see J Hayward In search of a treaty partner (PhD thesis, Victoria
University of Wellington,
1995).
[42]See,
generally, N Cox The Evolution of the New Zealand Monarchy: The Recognition
of an Autochthonous Polity (PhD thesis, University of Auckland, 2001). In
the subtly different situation in the United Kingdom, it has been observed that
the
concept of the Crown cannot be disentangled from the person of the Monarch,
straining the legal concept; M Loughlin ‘The State,
the Crown and the
Law’ in M Sunkin and S Payne (eds) The Nature of the Crown: A Legal and
Political Analysis (Oxford University Press Oxford 1999), pp.
58-59.
[43]Following
the example set by Bagehot, British historians since 1945 have very largely
neglected the continuing political influence
of the monarchy under George VI and
Elizabeth II; P Hennessy, ‘The throne behind the monarchy’ Economist
24 December
1994 p
77-79.
[44]‘The
English Constitution’ in the Collected Works of Walter Bagehot ed N
St John-Stevas (The Economist London 1974) vol
5.
[45]F Hardie
The Political Influence of Queen Victoria, 1861-1901 (Oxford University
Press London 1935), pp. 23-27.
[46]‘The
English Constitution’ in the Collected Works of Walter Bagehot ed
Norman St John-Stevas (The Economist London 1974) vol 5,
253.
[47]The
limitations of the distinction between dignified and efficient, so central to
Bagehot’s model, can be seen in L Jackson
Shadows of the Crown (PhD
thesis, University of Chicago,
1994).
[48]HJ
Hanham The Nineteenth Century Constitution, 1815-1914 (Cambridge
University Press Cambridge 1969), p.
24.
[49]D Smith
‘Bagehot, the Crown, and the Canadian Constitution’ (1995) 28
Canadian Journal of Political Science 622. An example of the use of influence
through an ‘exchange of views’ has been given in K Rose Kings,
Queens and Courtiers: Intimate Portraits of the Royal House of Windsor from its
foundation to the Present Day (Weidenfeld & Nicolson London 1985), p.
92.
[50]R Brazier
Constitutional Practice: The foundations of British government
(3rd ed Oxford University Press Oxford 1999) ch 9.
[51]F Hinsley
Sovereignty (Cambridge University Press Cambridge 1986), p. 1; S Krasner
‘Sovereignty’ (1988) 21 Comparative Political Studies
86.
[52]From M
Foucault The Foucault Effects: Studies in Governmentality eds G Burchell,
C Gordon & P Miller (University of Chicago Press Chicago 1991), pp 97-98,
101-102. See also D Held Political Theory and the Modern State
(Polity Press Cambridge 1989), pp.
216-225.
[53]Sovereignty
is always limited in some way. Genesis 1: 26-30 makes it clear that God created
mankind to subdue the earth and to exercise
dominion over it under God; Rousas
John Rushdoony The Institutes of Biblical Law (Presbyterian and Reformed
Publishing Los Angeles 1973), pp.
448-451.
[54]P.G.
McH ‘Constitutional Theory and Maori Claims’ in H Kawharu
(ed) Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi
(Oxford University Press Auckland 1989), p.
25.
[55]E
Lauterpacht ‘Sovereignty’ (1997) 73 International Affairs
137.
[56]D Philpott
‘Sovereignty’ (1995) 48 Journal of International Affairs
353.
[57]See, for
example, the Barbados Independence Order 1966 (SI 1966/1455), the Schedule of
which is the Constitution of Barbados. Section 63(1): ‘The executive
authority of Barbados is vested in Her
Majesty’.
[58]See
Allan Kornberg and Harold Clarke Citizens and Community- Political Support in
a Representative Democracy (Cambridge University Press Cambridge 1992);
Carol Harlow ‘Power from the People?’ in Patrick McAuslan and John
McEldowney
(eds) Law, Legitimacy and the Constitution: Essays marking the
Centenary of Dicey’s Law of the Constitution (Sweet & Maxwell
London 1985); JR Mallory ‘The Appointment of the Governor General’
(1960) 26 Canadian Journal of
Economics and Political Science
96.
[59]P Joseph
Constitutional and Administrative Law in New Zealand (Law Book Co Sydney
1993), pp. 284-285.
[60]In early
America, there was no question, whatever the form of government, that all
legitimate authority was derived from God. The
influence of the classical
tradition revived the authority of the people, which historically is equally
compatible with monarchy,
oligarchy, dictatorship, or democracy, but is not
compatible with the doctrine of God’s authority; Rousas John Rushdoony
The Institutes of Biblical Law (Presbyterian and Reformed Publishing Los
Angeles 1973), p.
214.
[61]Particularly
in respect of what might be called policy legacies; Theda Skocpol States and
Social Revolution (Cambridge University Press Cambridge 1979), p. 27.
Indeed, a constitution exists in the imagination of those who create it, use it
and thus know it From Joseph Jacobs The Republican Crown: Lawyers and
the Making of the State in Twentieth Century Britain (Dartmouth Aldershot
1996), p.
6.
[62]The
Australian Constitution has been held to be based on popular sovereignty, as it
was adopted by popular vote; Australian Capital Television Pty Ltd v
Commonwealth [1992] HCA 45; (1992) 177 CLR 106 (HCA) 138 (Mason CJ); Theophanous v
Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR. 104 (HCA) 171 Deane J);
McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR. 140 (HCA) 230, 237 (McH
J).
[63]Canada has
the same type of conceptual difficulty; Peter Russell Constitutional Odyssey:
Can Canadians become a Sovereign People? (University of Toronto Press
Toronto
1992).
[64]The
Australian Labour Party wanted a republic partly for symbolic nationalist
reasons, but partly also to deprive the Governors-General
of their association
with royal legitimacy; R Lucy The Australian Form of Government
(Macmillan Melbourne 1985), p.
17.
[65]Constitution
of the Independent State of Papua New Guinea
1975.
[66]See
Harold Laski ‘The Theory of Popular Sovereignty’ (1919) 17 Michigan
Law Review
201.
[67]Indeed, it
has been said that few care for such esoteric matters; Interview with Sir
Douglas Graham, former Minister in Charge of
Treaty of Waitangi Negotiations
(Auckland, 24 November
1999).
[68]For
example, FM Brookfield Waitangi and Indigenous Rights: Revolution, Law and
Legitimation (University of Auckland Press Auckland 1999); Andrew Sharp
Leap into the dark: the changing role of the state in New Zealand since 1984
(Auckland University Press Auckland 1994); Andrew Sharp Justice and the
Maori: the philosophy and practice of Maori claims in New Zealand since the
1970s (Oxford University Press Auckland 1997); R Mulgan ‘Can the
Treaty of Waitangi provide a constitutional basis for New Zealand’s
political future?’ (1989) 41 Political Science
51.
[69]See, for
example, the recent writings on the State; J Kelsey Rolling Back the State:
Privatisation of Power in Aotearoa/New Zealand (Bridget Williams Books
Wellington 1993), Richard Mulgan Democracy and Power in New Zealand: A study
of New Zealand politics (Oxford University Press Auckland
1989).
[70]As
former Prime Minister David Lange believed; Interview with David Lange, former
Prime Minister (Auckland, 20 May
1998).
[71]See
Michael Foley The Silence of Constitutions: Gaps, ‘Abeyances’ and
Political Temperament in the Maintenance of Government (Routledge London
1989). The wars of the seventeenth century were, to no small degree, between
competing conceptions of the State,
and engendered a suspicion for such
speculation. It is probable that the long dominance of Whig ideology also
contributed to this
attitude.
[72]Law
Reform Commission of Canada The Legal Status of the Federal
Administration (Law Reform Commission of Canada Ottawa
1985).
[73]Bank
voor Handel v Slatford [1952] 1 All ER 314 (HC) 319 (Devlin J):
The Crown is a convenient term, but one which is often used to save the asking of difficult questions. It is a description of the powers that formerly at common law were exercised by the king in person, and that latterly have been bestowed by statute on the king in council or on various Ministers.
[74]In this,
parallels may be seen with the position of the Crown in New Zealand, in the
Maori-Crown
context.
[75]The
King of Sweden, for instance, has been so relegated; Constitution of Sweden
(1975). Note the Canadian paper spoke of the Crown as an institution, rather
than of the person of the Sovereign, or of
their
representatives.
[76]D
Cohen ‘Thinking about the State’ (1986) 24 Osgoode Hall Law Journal
379.
[77]In effect
a republican form of
government.
[78]N
Komesar ‘Taking Institutions seriously’ (1984) 51 University of
Chicago Law Review 366; PW Hogg Liability of the Crown in Australia, New
Zealand and the United Kingdom (The Law Book Co Sydney 1971); Law Reform
Commission of British Columbia Legal Position of the Crown (Law Reform
Commission of British Columbia Vancouver
1972).
[79]Because
Canadians never severed their ties with Britain, they never found it crucial to
define themselves in a way which rendered
them distinct from the ‘mother
country’; D Smith ‘Empire, Crown and Canadian Federalism’
(1991) 24 Canadian Journal of Political Science 451,
471.
[80]D Cohen
‘Thinking about the State’ (1986) 24 Osgoode Hall Law Journal
379.
[81]W Moore
‘Liability for the Acts of Public Servants’ (1907) 23 Law Quarterly
Review 112; W Corbett ‘‘The Crown’ as representing the
State’ (1903) 1 Commonwealth Law Review 23, 45; HT Postle
‘Commonwealth and Crown’ (1929) 3 Australian Law Journal 109; H
Laski ‘The Responsibility of the State in England’ (1919) 32 Harvard
Law Review 447, 472; F Maitland ‘The Crown as a Corporation’ (1901)
18 Law Quarterly Review 131,
136.
[82]W Moore
‘Law and Government’ (1905) 3 Commonwealth Law Review
205.
[83]J Dearlove
‘Bringing the State Back In’ (1989) Political Studies
521.
[84]M
Loughlin, ‘The State, the Crown and the Law’ in M Sunkin and S Payne
(eds), The Nature of the Crown: A Legal and Political Analysis (Oxford
University Press Oxford 1999), p.
40.
[85]BV Harris
‘The ‘Third Source’ of Authority for Government Action’
(1992) 109 Law Quarterly Review
626.
[86]For an
example of the application of such limits on government see Fitzgerald v
Muldoon [1976] 2 NZLR 615
(HC).
[87]BV Harris
‘The ‘Third Source’ of Authority for Government Action’
(1992) 109 Law Quarterly Review
626.
[88]Which
suits most political leaders and the general public alike; Interview with Sir
Douglas Graham, former Minister in Charge of Treaty
of Waitangi Negotiations
(Auckland, 24 November
1999).
[89]By
contrast Australia’s Constitution may be described as a social covenant
drawn up and ratified by the people; JA La Nauze
The Making of the Australian
Constitution (Melbourne University Press Melbourne 1972).
[90]The
sovereignty of the Crown is not merely a legal fiction, as Bercuson argued,
since it has practical consequences, including a measure
of public perception as
a source of authority; D Bercuson and B Cooper ‘From Constitutional
Monarchy to Quasi Republic’
in J Ajzenstat (ed) Canadian
Constitutionalism, 1791-1991 (Canadian Study of Parliament Group Ottawa
1992); cf D Smith The Republican Option in Canada, Past and Present
(University of Toronto Press Toronto 1999), p. 18; Interview with Sir
Douglas Graham, former Minister in Charge of Treaty of Waitangi
Negotiations
(Auckland, 24 November
1999).
[91]G Clarke
Popular Sovereignty and Constitutional Reform in Canada (MA thesis,
Acadia University,
1997).
[92]At
least, by Pakeha. Maori showed a greater willingness, if only because they saw
thereby a means of increasing their share of authority;
Interview with Hon
Georgina te Heuheu, former Associate Minister in Charge of Treaty of Waitangi
Negotiations (Auckland, 7 December
1999).
[93]H Laski
‘Responsibility of the State in England’ (1919) 32 Harvard Law
Journal 447.
[94]M
Loughlin ‘The State, the Crown and the Law’ in M Sunkin and S Payne
(eds) The Nature of the Crown: A Legal and Political Analysis (Oxford
University Press Oxford 1999), p.
33.
[95]Sir Ernest
Barker defined a modern State as:
generally a territorial nation, organized as a legal association by its own action in creating a constitution ... and permanently acting as such an association, under that constitution, for the purpose of maintaining a scheme of legal rules defining and securing the rights and duties of its members.
This is to be distinguished from a nation, which ‘is a society or
community, whose unity is based primarily on space ... and
in that common love
of the natal soil (or patria) which is called patriotism’; and
‘on time, or the common tradition of centuries, issuing in the sense of a
common participation
in an inherited way of life, and in that common love for
the inheritance which is called nationalism’: E Barker Reflections on
Government (Oxford University Press London 1942), p.
xv.
[96]D Held
Political Theory and the Modern State (Polity Press Cambridge 1989); JR
Strayer On the Mediæval Origins of the Modern State (Princeton
University Press Princeton
1970).
[97]Excepting
those countries, such as the U.S.A., which were compelled to address this often
difficult issue, because of the republican
and federal nature of their
government.
[98]Analysis
of such mysteries as ‘the State’ did not come readily to
behaviouralists. Bernard Susser, Approaches to the Study of Politics
(Macmillan New York 1992), p. 180. In recent decades State-centred theorists
sought to bring the State back, arguing that it is more
autonomous than
society-centred theorists. As Bogdanor found, it is necessary to range across
law, politics and history to understand
a historic constitution; V Bogdanor,
The Monarchy and the Constitution (Clarendon Press Oxford
1995).
[99]E
Kantorowicz ‘Kingship under the impact of scientific jurisprudence’
in M Clagett et al (eds) Twelfth century Europe (University of Wisconsin
Press Madison 1961), p.
89.
[100]JR
Strayer On the Mediæval Origins of the Modern State (Princeton
University Press Princeton
1970).
[101]S
Reynolds ‘Law and Community in Western Christendom’ (1981) American
Journal of Legal History
206.
[102]Dark
Age kings were expected to hold fast the territory of their own communities, to
master or conqueror their neighbours, and to
protect their own people and enable
them to live securely; E Kantorowicz ‘Kingship under the impact of
scientific jurisprudence’
in M Clagett et al (eds) Twelfth century
Europe (University of Wisconsin Press Madison 1961), pp.
89-111.
[103]‘What
hath pleased the prince has the force of
law’.
[104]T
Hobbes Leviathan (Collier New York 1962); Q Skinner ‘Conquest
and’ in GE Aylmer The Interregnum- The Quest for Settlement,
1640-1660 (Archon Books Hamden
1972).
[105]Typified
by N Machiavelli The Prince ed Q Skinner and R Price (Cambridge
University Press Cambridge
1988).
[106]He
argued for a version of sovereignty of the whole citizen body over itself;
The Social Contract and other later political writings V Goureatres (tr)
(Cambridge University Press Cambridge
1997).
[107]He
outlined what he believed was the equilibrium of the British political system,
which he compared to the French- to the disadvantage
of the latter; C de
Montesquieu ‘The Spirit of the Laws’ in A Lijphart (ed)
Parliamentary versus Presidential Government (Oxford University Press
Oxford 1992), p.
48.
[108]H Laski
Authority in the modern State (Yale University Press New Haven 1919), pp.
21-24.
[109]The
United Kingdom can, of course, be dated to the Union with Union with Ireland Act
1800 (39 & 40 Geo III c 67). British constitutional
law has been essentially
that of England- though not without dispute; T Smith, ‘Pretensions of
English Law as ‘Imperial
Law’’ in The Laws of
Scotland (Law Society of Scotland/Butterworths Edinburgh 1987) vol 5, paras.
711-719.
[110]Though
in recent decades there have been some movements in this direction, for legal
rather than political reasons; see J Jacob The Republican Crown: Lawyers and
the Making of the State in Twentieth Century Britain (Dartmouth Aldershot
1996).
[111]V
Bogdanor ‘Britain and Europe’ in R Holme and M Elliott (eds)
1688-1988 Time for a New Constitution (Macmillan London 1988), p.
81.
[112]Indeed,
a Continental observer would find two of the distinguishing characteristics of
English law (and by extension that of the common
law world) to be its antiquity
and continuity, and its predominantly judicial character and the absence of
codification; H Levy-Ullmann
The English Legal Tradition: Its Sources and
History M Mitchell (tr) rev and ed F Goadly (Macmillan London 1935), pp.
xlvi-liii.
[113]S.
8: ‘The Queen’s excellent Majesty, acting according to the laws of
the realm, is the highest power under God in the kingdom,
and has supreme
authority over all persons in all causes, as well ecclesiastical as
civil’; see The Canons of the Church of England (London 1969),
Canon A7; Thirty-Nine Articles of Religion (London 1562, confirmed 1571),
Art.
37.
[114]Kelsey,
for example, speaks of the State where constitutional lawyers would
traditionally speak of the Crown, or some political scientists
the government; J
Kelsey Rolling Back the State: Privatisation of Power in Aotearoa/New
Zealand (Bridget Williams Books Wellington 1993). See also A Sharp Leap
into the dark: the changing role of the state in New Zealand since 1984
(Auckland University Press Auckland 1994).
[115]Or, perhaps
not so curious, given the uncertainty felt by many Maori about the scope of
kawanatanga and tino rangatiratanga; Interview with Sir Douglas
Graham, former Minister in Charge of Treaty of Waitangi Negotiations (Auckland,
24 November
1999).
[116]See,
for example, the ‘Building the Constitution’ conference held in
Wellington in 2000; C James (ed) Building the Constitution (Victoria
University of Wellington Institute of Policy Studies Wellington
2000).
[117]S
Goldfinch ‘The State’ in R Miller (ed) New Zealand Government and
Politics (Oxford University Press Auckland 2001), pp.
516-517.
[118]For
example, in the chapters devoted to the various interpretations of the State in
R Miller (ed) New Zealand Government and Politics (Oxford University
Press Auckland
2001).
[119]Democracy
and Power in New Zealand: A study of New Zealand politics (Oxford University
Press Auckland
1989).
[120]Leap
into the dark: the changing role of the state in New Zealand since 1984
(Auckland University Press Auckland 1994); Justice and the Maori: the
philosophy and practice of Maori claims in New Zealand since the 1970s
(Oxford University Press Auckland
1997).
[121]J
Morrow ‘Neo-Liberalism’ in R Miller (ed) New Zealand Government
and Politics (Oxford University Press Auckland 2001), pp.
521-532.
[122]R
Mulgan ‘A pluralist analysis of the New Zealand State’ in B Roper
and C Rudd (ed) State and Economy in New Zealand (Oxford University Press
Auckland 1993), pp.
128-146.
[123]R
Du Plessis ‘Women, Feminism and the State’ in B Roper and C Rudd
(eds) The Political Economy of New Zealand (Oxford University Press
Auckland 1997), pp.
220-236.
[124]C
Dixon, ‘Marxism’ in R Miller (ed) New Zealand Politics in
Transition (Oxford University Press Auckland 1997), pp.
350-358.
[125]A
Sharp Leap into the dark: the changing role of the state in New Zealand since
1984 (Auckland University Press Auckland 1994); J Kelsey Rolling Back the
State: Privatisation of Power in Aotearoa/New Zealand (Bridget Williams
Books Wellington 1993); P Moloney ‘Pluralist Theories of the State’
in R Miller (ed) New Zealand Politics in Transition (Oxford University
Press Auckland 1997), pp.
317-328.
[126]P
Moloney ‘Neo-Liberalism: A Pluralist Critique’ in R Miller (ed)
New Zealand Government and Politics (Oxford University Press Auckland 2001),
p. 542.
[127]See
also M Freedland, ‘The Crown and the Changing Nature of Government’
in M Sunkin and S Payne (eds), The Nature of the Crown: A Legal and Political
Analysis (Oxford University Press Oxford 1999), p.
133.
[128]6 &
7 Eliz II c 66.
[129]J Jacob
The Republican Crown: Lawyers and the Making of the State in Twentieth
Century Britain (Dartmouth Aldershot 1996). It has also been said that the
course of the twentieth century the Crown lost many traditional immunities,
particularly as a consequence of the evolution of the concept of public law,
through limits on the royal prerogative, and Crown privileges,
and the growth of
public interest; M Loughlin, ‘The State, the Crown and the Law’ in M
Sunkin and S Payne (eds), The Nature of the Crown: A Legal and Political
Analysis (Oxford University Press Oxford 1999), p. 35,
66.
[130]See J
Kelsey Rolling Back the State: Privatisation of Power in Aotearoa/New
Zealand (Bridget Williams Books Wellington
1993).
[131]J
Jacob The Republican Crown: Lawyers and the Making of the State in Twentieth
Century Britain (Dartmouth Aldershot 1996), p.
24.
[132]This
evolutionary and legalistic approach has been remarked upon regularly by
Continental observers; Henri Levy-Ullmann The English Legal Tradition: Its
Sources and History M Mitchell (tr) rev and ed F Goadly (Macmillan London
1935).
[133]A
conclusion in accordance with the findings of J Hayward In search of a treaty
partner (PhD thesis, Victoria University of Wellington,
1995).
[134]G
McLauchlan ‘Of President and Country’ New Zealand Herald
(Auckland New Zealand), 17 February
1995.
[135]P
Joseph ‘The Crown as a legal concept (I)’ [1993] New Zealand Law
Journal 126; ‘The Crown as a legal concept (II)’ [1993] New Zealand
Law Journal 179. See also J Kelsey Rolling Back the State: Privatisation of
Power in Aotearoa/New Zealand (Bridget Williams Books Wellington
1993).
[136]See J
Hayward In search of a treaty partner (PhD thesis, Victoria University of
Wellington, 1995); M Wilson ‘The Reconfiguration of New Zealand
Constitutional Institutions’
[1997] WkoLawRw 2; (1997) 5 Waikato Law Review
17.
[137]There
was a real interregnum between the death of one king and the election and
coronation of another. The hereditary right to be
considered eventually became
the right to be elected As the conception of hereditary right strengthened the
practical inconvenience
of the interregnum was curtailed; F Maitland and F
Pollock History of English Law before the Times of Edward I (Cambridge
University Press Cambridge 1895) vol 1,
507.
[138]‘The
English Constitution’ in the Collected Works of Walter Bagehot ed
Norman St John-Stevas (The Economist London 1974) vol
5.
[139]Historical
continuity characterises the constitutions of the United Kingdom and the
‘old dominions’; M Loughlin ‘The
State, the Crown and the
Law’ in M Sunkin and S Payne (eds) The Nature of the Crown: A Legal and
Political Analysis (Oxford University Press Oxford 1999), pp.
43-44
[140]This
question has been called ‘the most puzzling constitutional conundrum of
all’; A Sharp ‘Constitution’ in R Miller (ed), New Zealand
Government and Politics (Oxford University Press Auckland 2001), p. 40.
Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) 398 (Cooke
P).
[141]With the
courts supervising the exercise of a common law power of government, as in
Wolfe Tone’s Case (1798) 27 State Tr
614.
[142]H Laski
‘The Theory of Popular Sovereignty’ (1919) 17 Michigan Law Review
201.
[143]Though
the Australian Constitution has been held to be based on popular sovereignty, as
it was adopted by referendum, and may only be changed by referendum:
Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106
(HCA) 138 (Mason CJ); Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994)
182 CLR 104 (HCA) 171 (Deane J); McGinty v Western Australia [1996] HCA 48; (1996) 186
CLR 140 (HCA) 230, 237 (McH
J).
[144]Edmund
Burke saw a constitution as based on a social contract which evolved from
generation to generation; P Russell Constitutional Odyssey: Can Canadians
become a Sovereign People? (University of Toronto Press Toronto 1992), pp.
10-11.
[145]The
Prince of Wales was reported as believing that a referendum on the monarchy in
the United Kingdom would provide a new and lasting
legitimacy for the Crown;
‘Prince wants British to choose’ New Zealand Herald
(Auckland, New Zealand), 8 November
1999.
[146]See
Alan Simpson (ed) The Constitutional Implications of MMP (School of
Political Science and International Relations Victoria University of Wellington
Wellington
1998).
[147]D
Awatere Maori Sovereignty (Broadsheet Auckland
1984).
[148]Kawanatanga
could be taken as a distant power of protection against foreigners and other
tribes, which would not impinge on the mana
of individual chiefs and their own
tribes; R. Mulgan ‘Can the Treaty of Waitangi provide a constitutional
basis for New Zealand’s
political future?’ (1989) 41(2) Political
Science 53,
p.56.
[149]Reserved
by the Chiefs by Article 2. Sir Hugh Kawharu, Professor of Maori Studies at the
University of Auckland, in evidence to the
Waitangi Tribunal, has observed that:
[W]hat the Chiefs imagined they were ceding was that part of their mana and rangatiratanga that hitherto had enabled them to make war, exact retribution, consume or enslave their vanquished enemies and generally exercise power over life and death.
Report of the Waitangi Tribunal on the Kaituna River Claim
(Waitangi Tribunal Wellinton 1984), p. 14.
The leading Maori lawyer,
Moana Jackson, proposes a markedly different view:
[In Article 1 the Maori granted] to the Crown the right of kawanatanga over the Crown’s own people, over what Maori called ‘nga tangata whai muri’, that is, those who came to Aotearoa after the Treaty. The Crown could then exercise its kawanatanga over all European settlers, but the authority to control and exercise power over Maori stayed where it had always been, with the iwi.
M Jackson, ‘Maori Law’ in R Young, Mana Tiriti: The Art
of Protest and Partnership (Haeata Project Waitangi/City Art Gallery/Daphne
Brasell Associates Press Wellington, 1991), p.
19.
[150]See J
Hayward In search of a treaty partner (PhD thesis, Victoria University of
Wellington,
1995).
[151]J
Phillips ‘The Constitution and Independent Nationhood’ in C James
(ed) Building the Constitution (Victoria University of Wellington
Institute of Policy Studies Wellington 2000), pp.
69-76.
[152]The
increased symbolic role is emphasised in V Bogdanor The Monarchy and the
Constitution (Clarendon Press Oxford
1995).
[153]Law
Reform Commission of Canada The Legal Status of the Federal
Administration (Law Reform Commission of Canada Ottawa
1985).
[154]N Cox
‘Republican Sentiment in the Realms of the Queen: The New Zealand
Perspective’ [2001] Manitoba Law Journal (forthcoming,
copy with
author).
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