The bases for the authority of the Australian Constitution

Thesis

What are the possible bases for the authority of the Australian Constitution? Why should people and judges ever obey the text of the Constitution? The developing tools of analytical jurisprudence assist in answering these questions.

Despite its currency, the concept of "sovereignty" provides little assistance in understanding how law provides reasons for action. The concept of authority is more useful. The text of the Australian Constitution has authority in that it provides presumptive reasons for action, overruled when they appear sufficiently erroneous on a cursory examination.

The Constitution is part of the Australian legal system. A legal system is normally identified partly by moral norms. These moral norms themselves require that legal systems also be identified where possible by reference to the directives of a previous de facto authority - even when that previous authority no longer has power to make new legal norms. A legal system will be "legitimate" if any improvement to be achieved by revolution would be outweighed by the uncertainty revolution creates.

Against this theoretical background, various theories about the Constitution's authority can be assessed. Although the enactment of the Constitution by the Imperial Parliament provides the Constitution with legal authority, it does not confer moral legitimacy.

Contrary to a growing judicial and academic consensus in Australia, the Constitution's legitimate authority is not derived from the "will of the people". Nor is it derived from the Constitution's Founders. The will of the people cannot be identified reliably, and wound not provide sufficient reasons for action. The Constitution does embody a federal compact between the colonies. Because it is worthwhile to keep political promises, the polities of the States should fulfil this compact, even though the compact only imposes weak obligations on the Commonwealth.

Other possible bases for the Constitution's authority are also inadequate. These include claims that judges are bound to apply the Constitution because their authority is based upon it; that the Constitution embodies "associate obligations", and that the Constitution isa commitment to protect individual rights and democracy.

Instead the Constitution has legitimate authority principally because it coordinates individual action towards desirable goals. The Australian Constitution settles the location of authority by authority.

Authors: Daley, J

• Publication date: 1999
• DOI: 10.5287/ora-qxmko1dkb
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: Constitution; authority; Australia; popular sovereignty
• Subjects: Legal philosophy; Constitutional & administrative law; Philosophy of law; Ethics and philosophy of law