Limited Government and the Political Constitution: A special Symposium at the Law School

29 November 2012

Taking advantage Professor Robert George’s August 2012 visit to New Zealand to deliver the annual John Graham Lecture for the Maxim Institute, Richard Ekins organised a special symposium. George is the McCormick Professor of Jurisprudence at Princeton and a prominent figure in contemporary legal and moral philosophy.

The symposium sought to explore the foundations of “limited government,” this being a concept that is rightly seen as an incident of the rule of law. But what establishes “limited government”? In what does it inhere? Much recent scholarship has emphasised the centrality of legal and justiciable norms enforced by judges, but an equally important strain of justification for limited government is the idea of “political constitutionalism”. That term denotes an emphasis on political norms and practices that keep governments in check and secure individual liberties.

Seven speakers were invited to contribute papers, to be read in advance of the symposium and debated on the day. Professor Nick Aroney of the University of Queensland explored the topic through the lens of arrangements in federal states, while Professor Albert Chen of the University of Hong Kong explored the political constitutionalism operating in the Republic of China. Dr Mark Hickford, an alumnus now at the Department of the Prime Minister and Cabinet, and an authority on the early history of Maori and Crown/settler relations, explored that history and argued that the real “lives” of the Constitution yield normative understandings of our own political constitution. This was salient for New Zealand in a year in which there is to be a “constitutional review”, especially given the extent to which the review process has been driven by Maori concerns and indeed by political settlement. Professor George contributed what had been his Maxim Lecture the previous night – “Can the Ruler be a Servant?” Former colleague and now Western Law Professor, Grant Huscroft, examined the concept of “proportionality” and the legitimacy of judicial power wielded under rights instruments, while Gregoire Webber of the London School of Economics deliberated on the nature of “authority” in legal systems, suggesting that “authority” was perfectly intelligible without the adjective “legal” - an adjective which if explored leads one back into the reasons why authority is accepted and thus to the “political constitution”. Finally, our own Richard Ekins presented a fascinating paper, suggesting that “far-reaching judicial review of legislation and state neutrality about conceptions of the good are in no way entailed by a sound understanding of reasonable self-government and the limited government in which that state of affairs partly consists.”

We were delighted to have in attendance also, from overseas, Professors Jeffrey Goldsworthy from Monash, Bradley Miller from the University of Western Ontario, and Paul Yowell from Oxford University. It is hoped the papers will be published in the New Zealand Law Review.

Paul Rishworth