Marriage: “Core” and “Penumbral” meaning

August 31, 2009 at 3:03 am · Filed under Uncategorized ·Tagged , , , ,

This post is not intended as a commentary on gay marriage per se. The impetus for this post was a youtube link sent to me by a friend. Here’s the link in question – a televised interview of Alan Keyes on the topic of marriage, see here: http://www.youtube.com/watch?v=_9BA7i3sgCU.

In the interview Keyes is asked to reconcile his view that marriage is procreative by definition (therefore making gay marriage an absurdity) with heterosexual married couples that are unable to procreate by reason of infertility or elderliness. He was asked if this meant the law should not permit those who are infertile or elderly to marry. He replied “no” because marriage in those cases do not change the “core” or essential meaning of marriage. I believe he’s referring to the distinction made by H.L.A.Hart between “core” and “penumbral” meaning. (This is reinforced by his comment, “in (the) law we work within definitions.”) In terms of the law the “core” meaning is what the statute intended to cover. For example a statute that bans vehicles from a park was obviously intended to ban cars. A “ penumbra” case would be one not considered by the creators of the law, such as an overhead aeroplane or helicopter etc. We could easily extend the definition of a “vehicle” to a horse or bicycle without altering the “core” meaning of vehicle as it was intended. However, in the case of flying aeroplanes or helicopters invading airspace the definition has been stretched. Thus, on the issue of infertile couples Keyes offers the analogy of the worm and the apple: because an apple has a worm, does not make the worm part of apple. The “core” meaning of apple is not changed. He suggests gay marriage falls so far on the periphery of penumbral meaning that we cannot recognise it without breaking from the “core” meaning of marriage.

Please note this post expresses no opinion on the issue of gay marriage either way. If you must express an opinion please ensure it’s relevant to the argument discussed above.

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Conscription, Coercion & The Rule of Law

August 24, 2009 at 2:09 pm · Filed under Hayek, Libertarianism, Politics ·Tagged , , , , , ,

This is a long overdue reply to the characterisation of compulsory military conscription as “coercive” and anathema to alleged “liberal values.” I’ve perhaps not captured here the level of moral indignation expressed by Mr Andrew’s in his blog. That said I always find sifting through platitude to uncover salient argument a nauseating exercise. His diatribe can be viewed in all it’s glory here: http://insidethemindoftim.wordpress.com/2009/01/23/the-morally-repugnant-proposal-of-australian-conscription/

Hayek & Conscription:

I’ve made our friend aware of the position of perhaps the most celebrated of classical-liberal of last century. Hayek considered neither taxation nor compulsory military service as examples of “coercion.”

” …are not supposed to be avoidable, they are at least predictable and are enforced irrespective of how the individual would otherwise employ his energies: this deprives them largely of the evil nature of coercion.” The Constitution of Liberty; p153.

Mr Andrews suggests that a law is coercive if it fails the test of voluntariness. My question is: How is that consonant with The Rule of Law? It’s not!

As I see it there are three possible responses to this logical entailment:

(i) The concept of coercion relied upon here is no good. We need to develop a notion of coercion that is consistent with The Rule of Law; or

(ii) We accept that coercion is not always so bad. Thus, we accept that in some circumstances coercion is justified or legitimised by The Rule of Law; or

(iii) We hold freedom from coercion to the trump The Rule of Law, and thus to slide towards anarchism.

If Mr Andrews believes (ii) he must say why conscription is not legitimate ends for coercive state power. I ask him why taxation is permissible, but we should deprive the state of a right to conscript able-bodied men? I ask why it’s so repugnant to expect the citizenry who are protected by the state from external threat to owe a concominant duty to the state.

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Great Article: Defusing the American Right by Don Arthur

February 17, 2009 at 11:25 am · Filed under Centre for Independent Studies, Conservativism, Fusionism, GOP, George Bush, Hayek, Libertarianism, Politics ·Tagged , , , , , ,

I meant to blog about this fabulous article by Don Arthur earlier (viewable here: http://www.cis.org.au/Policy/Summer08-09/arthur_summer08.html). It appeared in the Summer edition 2009 of Policy Magazine.

The article is primarily about the growing rift between conservatives and “libertarians” within the GOP. He discusses the view proposed by various libertarian thinkers and activists to realign themselves with the political left and the Democratic Party. The article mostly concerns the rift between social conservatives and libertarians – though he does later refer to “neo-conservatives” who are not necessarily social conservative. I was particularly captured by his depiction of the “conservative mind.” He refers to Haidt’s theory that people’s moral intuitions may be characterised as fitting into two groups: (i) J.S. Mill social contract theory; and (ii) Durkheimian theory of society. Conservatives adhere to the Durkheimian vision which he summarises as:

(i)               Harm/ Care principle;

(ii)              Fairness/ reciprocity;

(iii)             Ingroup Loyalty;

(iv)             Authority/respect; and

(v)              Purity/sanctity.

Libertarians adhere to the Millian world view which consists of (i) & (ii) to the exclusion of (iii), (iv) & (v).

The article is thought provoking and well written. However, I think “Fusionism” is not given a fair hearing. In doing so he makes selective use of Hayek, and overlooks the considerable Burkean influences on Hayek’s political philosophy. Without a lengthy excursion through either Hayek or Burke a few points could be made:

(i)         both reject rational design and share a similar “organic” view of society (Hayek termed this view “spontaneous order.”)

(ii)         Hayekian liberalism does not deny the importance of Burkean traditional institutions.

(iii)        both reject “natural rights” in place of “prescriptive rights” or time-honoured expectations that derive from custom. (Both no doubt would reject current proposals to implement a legislative Bill of Rights, and Hayek’s criticism of the UN Declaration of Universal Human Rights can be found in Law, Legislation and Liberty.)

All of which Arthur has overlooked or cast aside in providing us with this skewed narrative - that libertarians and conservatives face an ideological impasse.

I must confess a bias in all of this – I am a ‘fusionist” of sorts.

 

 

 

 

 

 

 

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My submission to the Senate Re: Plebiscite for an Australian Republic Bill 2008

February 6, 2009 at 2:07 pm · Filed under Australian Constitution, Australian Republican Movement, Constitutional Monarchy, Constitutionalism, Monarchy, Politics

Monday, 26 January 2009

The Secretary
Finance & Public Administration Committee
Parliament House
Canberra, ACT 2600
Fpa.sen@aph.gov.au

Re: Plebiscite for an Australian Republic Bill 2008

I am an Australian citizen who has a keen interest in parliamentary and constitutional issues. I graduated with a BA (with distinction)/ LLB from University of Wollongong in 2008. I have a keen interest in politics and parliamentary process.

In response to the invitation to make a submission on this bill, I wish to put the following to the Committee:

(I) There is only one way to change the constitution. This is via a referendum pursuant to s128 of the Constitution. A plebiscite can have no legal effect.

(II) Details of the proposed republic have not been disclosed to the public.

(III) I believe a plebiscite on a republic would be undesirable for three reasons:
(a) Firstly, a plebiscite invites the people to reject the existing constitution without being given an alternative constitutional arrangement. This is tantamount to asking for a vote of no confidence in the existing constitution;

(b) If the plebiscite yields a strong vote in support of a republic this could trigger political instability;

(c) It will be a costly exercise and a waste of tax payers money for an issue that was resoundingly rejected by the Australian people in 1999. 72% of all electorates rejected the republican preferred model, and not one state approved the referendum.

(IV) In addition to the above I am concerned that any affirmative result in a plebiscite could be used to justify a dubious process by which the legislature might bring about a republic. According to some legal opinion, it is technically possible for the Commonwealth Parliament, acting at the request or with the concurrence of the Parliaments of all the States to repeal section 8 of the Statute of Westminster 1931 and thereby amend the Commonwealth of Australia Constitution Act 1900. A plebiscite must not be used to bypass the most important democratic safeguard of our constitution – that our constitution may not be altered by parliament unless proposed alteration gains the approval of the citizenry.

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The Australian Flag and the need to protect it

January 27, 2009 at 1:35 pm · Filed under Aussie Flag, Australia Day, Australian Flag, Uncategorized

In the aftermath of Australia Day celebrations I was thinking how much a symbol of unity and history our flag is. (Not that I am one to hang mini-flags from a car aerial or drape myself in a flag – that is frankly not to my taste!) However, I think sufficient mechanisms in place to protect our flag are lacking. We need to protect the flag both from zealous politicians (particularly those of similar vein to Paul Keating) who insist on changing it without popular approval, and from dangerous persons who may publicly desecrate our flag.

Constitutional Protection:
 
The Howard Government provided legislative protection of the national flag when the Flags Amendment Act 1998 was enacted. Section 3 imposes the condition that the flag can only be changed or replaced if it has the support of the majority of State and Territory electors. However, a subsequent act of federal parliament could easily repeal this provision, and indeed change the national flag without the consent of the citizenry.
  
I am of the view that a constitutional amendment is in order to create some provision that removes the possibility of arbitrary change. The provision would contain the existing description of the flag found in Schedule 1 of the Flags Act 1953, this way our flag could only be altered by constitutional referendum pursuant to s128 of the Constitution Act 1900.

Anti-Desecration Laws:

Many nations prohibit public burning or desecration of the national flag. To my knowledge of the liberal democracies Austria, Germany, Finland, New Zealand, Portugal and France all have laws of this nature. While they all fall within the relevant criminal code or act of the nation, the penalties range from fines to imprisonment and penal labour – or both. In Australia and the United States passing laws which subject desecration of the flag to criminal penalty has been no easy task. The Australian Flags (Desecration of the Flag) Bill was tabled in senate but ironically lacked the support of John Howard. While in the USA  the Supreme Court has been the major obstacle. The Supreme Court declared such legislation to be “unconstitutional restrictions on freedom of expression” in both Texas v Johnson, 491. US 397 (1989) & United States v Eichman 496. US. 310 (1990). Dissenting Justice Rehnquist in Texas v Johnson characterized flag burning as, “the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.” I find the following passage from his judgment most compelling:

“The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another ‘idea’ or ‘point of view’ competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”

(In 2006 a proposed constitutional amendment to prohibit flag burning was defeated in the US senate by one vote.)

Nonetheless, I do think  think legislation of this nature necessitates careful drafting. Further, thought must be given to what penalty would be most effective. In France desecrating the flag in public incurs a penalty of €7,500 and 6 months incarceration, under the Portuguese Penal Code the penalty is 2 years which extends to destruction of Portuguese symbols of sovereignty.  (The Coat of Arms etc.) I believe a prohibitive fine in this case to be a more appropriate and effective penalty than incarceration – how many people do you know who boast about parking infringements? Whereas, prison sentences might encourage demonstrators to make themselves martyrs for various extremist left-wing causes.  I would be tending towards treating desecration of the flag as a strict liability offence. However, this would infact be a rare situation where I think considerable discretion over sentencing should be left to the judiciary.

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Alvin Plantinga: Reformed Epistemology and Rationality of Belief

November 23, 2008 at 12:17 pm · Filed under Alvin Plantinga, Atheism, Christianity, Reformed Epistemology, Theism ·Tagged , , , , ,

Last year I read an essay by Alvin Plantinga ”Rationality and Religious Belief.” His essay struck me as a very sophisticated argument against the standard line that religious belief is “irrational.” This post is my attempt to summarise his argument. (Please note : my summary is by no means written to the standard one might expect from an epistemologist.)

Firstly, to introduce Plantinga. Alvin Platinga is a philosopher who speacialises in metaphysics, epistemology and philosophy of religion. He is best known for his re-working of “the free-will” response to the problem of evil question – how can the presence of evil be reconciled with a perfectly good, omnisicent and ominpotent god? His devasting review of Richard Dawkins book “The God Delusion” is worth looking at, viewable here: http://www.christianitytoday.com/bc/2007/002/1.21.html.)

“Rationality and Religious Belief” explores the question “is it rational, or reasonable, or rationally acceptable, to believe in God?” It is sophisticated and not easy to summarise, but nonetheless a compelling refutation of the standard line that religious belief is irrational. He deals with what he calls the “evidentialist objection’ to theistic belief, that “belief in God is irrational, or unreasonable, or noetically substandard because there is insufficient evidence for it.” This he traces to epistemological foundationalism (definition here: http://plato.stanford.edu/entries/justep-foundational/ ) and the concept of properly basic, properly basic refers to those truths which are held to be incorrigible or self-evident. He holds that incorrigibility is not a necessary condition of proper basicality, and thus the evidentialist objection so far as it hinges on foundationalism is bankrupt. He then considers if a belief in God could be considered properly basic and considers the two standars objections. These are:

(i) If one has no evidence of the existence of God then one’s belief is “groundless, or gratuitous, or arbitary.”

(ii) If we accept that belief in God is properly basic then we must accept just any belief is properly basic, thus “throwing wide the gates to irrationalism and superstition.”

His refutation of (I) is quite sophistcated. He cites beliefs taken to be properly basic such as perceptiontual beliefs, memory beliefs and beliefs of ascribing the mental states of others, “in each of these cases, a belief is taken as basic, and in each case properly taken as basic. In each case there is some circumstance or condition that confers justification; there is a circumstance that serves as ground of justification.” He provides as account of proper basicality according to circumstance:

* In condition C, S is justified in taking p as basic.

As an example of this principle, he provides following proposition:

* I see a rose colored wall in front of me.

C will vary according to p depending on the nature and quality of perceptual experience.If I am wearing rose-colored glasses when I see the wall, I am not justified in believing that “I see a rose colored wall in front of me” is properly basic. There exists a further condition beyond “being appeared to” that cannot be fully articulated in order to be properly basic. Proper basicality occurs only in certain circumstances, but it is not the case that such belief is always “groundless”. He contends that, for theists, the evidence for God’s involvement in the world is such that their perception of God is like perceiving the rose-colored wall. They perceive:

* God is speaking to me;
* God has created all this;
* God disapproves of what I have done;
* God forgives me;
* God is to be thanked and praised.

These beliefs on their own are not properly basic, but serve as the conditions or circumstances for the properly basic belief that “God exists”. These conditions are necessary before one can assert proper basicality.

In his refutation of (ii) he asks, “How do we rightly arrive at or develop criteria for meaningfulness , or justified belief, or proper basicality?” He dubs (ii) the “Great Pumpkin Objection.” This view holds that reformed epistemology allows for a supersition like “the Great Pumpkin returns every Halloween” to meet conditions of proper basicality. He argues that even in the absence of a criterion of proper basicality the reformed epistemologist can suppose there is a relevant difference between a belief in God and a belief in the Great Pumpkin. It does not follow from the rejection of foundationalist criteria, that there is no other criteria, “the Refrormed epistemologist may concur with Calvin in holding that God has implanted in us a natural tendency to see his hand in the world around us; the same cannot be said for the Great Pumpkin, there being no Great Pumpkin and no natural tendency to accept beliefs about the Great Pumpkin.”

Having encountered Plantinga I would feel very uneasy about saying such things as “a belief in God is irrational.” Further, I would be hesitant to toot the horn of atheism – especially the brand of atheism that so readily dismisses religious belief as irrational and akin to superstition.

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Liberal Party: The party for upholding the Constitution ?

September 30, 2008 at 1:38 am · Filed under Uncategorized ·Tagged , , ,

  Glenn Milne saw fit to write some unconscionable garbage in reference to the Coalitions thwarted attempt to originate a money bill in the senate. (See here: http://www.news.com.au/dailytelegraph/story/0,22049,24411595-5001030,00.html). The bill was passed by the senate with cooperation from the Greens, it saught to increase old age pensions by $30 a month. This is what Mr Milne had to say:

“…As with Rudd individually, the government collectively did not respond well. First, it tried arguing that the pensions Bill was unconstitutional because Oppositions cannot introduce money Bills.

Well, frankly, who cares?

This issue is about a bit of social justice and calling governments to account, not the finer points of Constitutional law.”

  The notion that money bills may not originate in the senate is hardly a fine point in constitutional law. Rather, it is a well known limitation on the powers of the senate explicitly stated in the constitution:

Section 53 of the Constitution Act 1900: “Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate.”

   A fact many of us learned in high school, and if not certainly in introductory Australian politics or constitutional law classes at university. This kind of tripe is a sad indictment on Milne as a political journalist, and reflects an inability to balance partisan sympathies with journalistic impartiality. Even an opinion writer must be limited by a respect for facts in their commentary, otherwise what he or she writes is just unsubstantiated diatribe. Further, considerations like “social justice” must not come before the constitution, the very instrument that underpins our democracy and guarantees our freedom. It is reprehensible to declare a clause in our constitution unimportant and to act in a way that is clearly contrary it – especially given that our constitution only allows for change subject to the approval of the Australian people.

  While this stunt has all the hallmarks of political genius on the part of the Liberal Party it was totally improper. The clerk of the House was correct to dismiss the bill, even if it was passed by the house the Governor-General would have no option but to refuse assent.

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United States of America…A Constitutional Autocracy?

July 17, 2008 at 6:22 am · Filed under Politics ·Tagged ,

I first encountered this Cato paper “Executive Orders and National Emergencies: How Presidents Have Come to “Run the Country” by Usurping Legislative Power” by William .J Olson in my second year of undergraduate study. It is only 22 pages long and provides an excellent legal account how the executive branch has come to exercise so much power in America – contrary to the intentions of the founding fathers. The unwillingness of the Supreme Court to strike down executive orders has created the situation where presidents can make directives which deprive the citizenry of life, liberty and property and circumvent the constitution.

What does this mean for Australian Constitutional Monarchists?

Even republican constitutions written by the best of men inspired by ideals of freedom and constraint on executive power fail miserably to prevent autocracy!!!!!!

View here:     http://www.cato.org/pubs/pas/pa358.pdf

                                                          

                                                                    Executive Summary

“During the recent presidential scandals, concluding with the impeachment of President Clinton, many people were heard to say that the investigations should end so that the president could get back to “the business of running the country.” Under a constitution dedicated to individual liberty and limited government—which divides, separates, and limits power—how did we get to a point where so many Americans think of government as embodied in the president and then liken him to a man running a business?

The answer rests in part with the growth of presidential rule through executive orders and national emergencies. Unfortunately, the Constitution defines presidential powers very generally; and nowhere does it define, much less limit, the power of a president to rule by executive order—except by reference to that general language and the larger structure and function of the Constitution. The issue is especially acute when presidents use executive orders to legislate, for then they usurp the powers of Congress or the states, raising fundamental concerns about the separation and division of powers.

The problem of presidential usurpation of legislative power has been with us from the beginning, but it has grown exponentially with the expansion of government in the 20th century. In enacting program after program, Congress has delegated more and more power to the executive branch. Thus, Congress has not only failed to check but has actually abetted the expansion of presidential power. And the courts have been all but absent in restraining presidential lawmaking.

Nevertheless, the courts have acted in two cases—in 1952 and 1996—laying down the principles of the matter; the nation’s governors have just forced President Clinton to rewrite a federalism executive order; and now there are two proposals in Congress that seek to limit presidential lawmaking. Those developments offer hope that constitutional limits—and the separation and division of powers, in particular—may eventually be restored.”

 

 

 

 

 

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Part I: The Governor-General (not HM The Queen Elizabeth II) is the Head of State

July 14, 2008 at 4:39 am · Filed under ARM, Australian Constitution, Australian Republican Movement, Constitutional Monarchy, Governor-General, History, Monarchy ·Tagged ,


    The Australian Republican Movement (ARM) has from its inception premised the case for an Australian President on a falsehood. This falsehood is that the HM Queen Elisabeth II is the “Head-of State,” and not the Governor-General. I intend to divulge truth regarding the status of the Governor-General.The term “Head-of-State,” is not a term that arises from the written words of the Australian Constitution, rather it is a term that enjoys currency at international law. With this status comes various diplomatic duties and immunities, The Head-of-State is said to be par in parem non habet jurisdictionem. Who the Head-of-State is depends on the constitution of said nation. Under the Canadian and New Zealand Constitution the monarch is the Head-Of State. Since, however, this phrase appears nowhere in the Australian Constitution we may turn elsewhere for clarification.

    The High Court in R v The Governor of South Australia 1907, clearly said, obiter, that the Governor-General is the Constitutional Head-Of-State. In the appeal of the engineers case to the Privy Council Lord Haldane’s obiter comments are also supportive. He stated that Section 61 of the Constitution:

“(places) the Sovereign in the situation of having parted, so far as the affairs of the Commonwealth are concerned, with  every shadow of active intervention in their affairs and handing them over, unlike the case of Canada, to the Governor-General.”

    It should be noted that both comments were obiter and not binding ratio, so we may look to other events that strongly support the opinion that the Governor-General is our Australian Head-of-State. Sir David Smith argues that the legal affect of the 1926 Balfour Declaration and the Imperial Conference of 1930 neuters any argument that the Queen is the Australian Head-Of-State. The Balfour Declaration 1926 provided, inter alia, that the dominions were equal in status and distinct from the UK in respect of external affairs. Making it impossible for the monarch to represent any Commonwealth nation other than the United Kingdom! The 1953 Royal visit to Australia of HM Queen Elisabeth II is particularly illuminating. The Menzies government sought legal opinion in 1953 as to constitutional implications of the royal visit; the advice supported the case that the Governor-General continued to exercise his statutory powers during the Queen’s visit. Further, that the Queen may not exercise the powers of the Governor-General, these statutory powers may be exercised solely by the office of Governor-General! The Menzies government was so aware of this that as an act of loyalty and solidarity (with the cooperation of the ALP!) they enacted the Royal Powers Act 1953, this allowed the Queen when personally present in Australia to exercise any power exercisable by the Governor-General.
     Further, we cannot ignore the fact that the Governor-General has repeatedly been treated as the Australian Head-of-State status during visits abroad, whereas the international community has never afforded HM Queen Elizabeth II this status. Professor David Flint notes in ‘The Cane Toad Republic” the Governor-General between 1971 and 1999 (year of the constitutional referendum) made over fifty-five visits to thirty-three nations for diplomatic purpose!
   
      All of this is either known, or should be, yet, if it is known, it is wilfully ignored by the ARM. The truth is, we do have an Australian Head-Of-State.
 
 
Further Reading:

- Sir David Smith, Head of State, Sydney, Macleay Press, 2005.
- David Flint, The Cane Toad Republic, Kent Town SA, Wakefield Press 

 

 
 Author: W.R.Church
 
 
  

 

 

 

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Constitutional Monarchy: A Historical Precis

July 13, 2008 at 12:29 am · Filed under Constitutional Monarchy, Monarchy ·Tagged

Supporters of the monarchy are no strangers to ridicule.

“Monarchy is antiquated, irrational and worst of all hereditary elitism. Only fuddy-duddy types like Hyacinth Bucket are monarchists, the type that decorate their mantlepiece with Royal Doultons.”

Monarchists endure this kind of mockery everyday. The resolute individual will rise above the mockery and stick firmly to their conviction. The charge of hereditary elitism is no doubt indicative of a manifest ignorance, the mistaken view that succession is entirely a matter of inheritance and birthright. Since, 1689 it is clear that parliament may alter the line of succession, and the sovereign must fulfil certain statutory duties.

As for the charge that monarchy is less than ideal because it is “antiquated” and “irrational”, one should surely judge any system based on results and human experience. Since, 1689 Great Britain has been indisputably the most free and stable democracy in the world by any comparison.

As for Republican constitutional arrangements…

France?

Since the revolution of 1789 France has had five republics. Edmund Burke predicted in 1790 that the French Republic would be plagued by instability, eventually collapse and see the ascendancy of a military autocrat – they got General Napoleon Bonaparte! They have also had a fascist Regime under Vichy. The current Fifth Republic was implemented in 1958 following the collapse of the Fourth Republic.

USA?

Apparently the ideal Republic, however, this did not prevent a bloody civil war between 1861 and 1864. (Ironically, ‘slavery” was a major reason for this war, a practice abolished by the British Parliament in 1832.) Today the president exercises powers that would have been inconceivable to the founding fathers. A president can effectively rule by executive order, making directives that circumvent the constitution. (E.g. Executive Order 9066 FDR used his authority as Commander-in-Chief to send ethnic groups to internment camps.)

Germany?

The Weimar Constitution was flawed, a flaw that Hitler exploited in 1934 following the death of Hindenburg.

Lest we forget the attrocities that occured in the USSR, Vietnam, China, Cambodia, Yugoslavia, the Czech Republic and Ethiopia that were direct consequences of a republicanism !!!!!

Britain, in contrast, has had a history of stability and freedom that is unparalleled. Somewhere between 1688 and the middle 19th century it’s monarchical system evolved into constitutional monarchy, whereby the sovereign is primarily a constitutional safeguard that plays a passive role in the activities of parliament. The fundamental pillars of this system are Magna Carta, and the Bill of Rights 1689 which enshrined the principle of parliamentary supremacy – and of course the related right of parliament to alter the line of succession.

The beauty of the system is that it was not inspired by ideals, nor drafted by self-proclaimed philosopher Kings. Rather, it is the outcome of spontaneous acts and gradual evolution.

So what events or acts created this constitutional system?

Here is my attempt to trace these acts and events:

Constraints on Sovereign Power:

1100:
The Charter of Liberties, aka Coronation Charter, was a written proclamation by Henry I of England, issued upon his ascension to the throne. It bound the king to certain laws regarding the treatment of church officials and nobles.

1215:
Sixty three clauses requiring that the King renounce certain rights, respect certain legal procedures and accept that he is bound by the law. It explicitly protected certain rights of the King’s subjects. The document guaranteed, inter alia: freedom of the church; redress of feudal grievances; consultation before the imposition of taxes; availability of justice to all; habeus corpus (clause 39); control on the behaviour of of Royal officials. In terms of constraining the power of the monarch clause 61 was crucial. A council of twenty-five barons was appointed to ensure the sovereign observed the charter, gving them the right to wage war on the sovereign if he did not!

Petitition of Right 1628:
Sought to further limit royal preogative. The petitition sought to address: Taxation without Parliament’s consent; forced loans ; arbitrary arrest; imprisonment contrary to Magna Carta; arbitrary interference with property rights; lack of enforcement of habeas corpus; forced billeting of troops; imposition of martial law & exemption of officials from due process. It was supported by Charles II.

Bill of Rights 1689:
Enshrined the principle of parliamentary sovereignty. It is an essential document of English constitutional law, alongside Magna Carta 1215, the Act of Settlement 1701 and the Parliament Acts. It also forms part of the constitution of some other Commonwealth nations, such as Australia! It was a product of the Glorious Revolution, led by William III of Orange Nassu. It was a response to the tendency towards absolute monarchism – in Golden v Hales, 1686, James II had dismissed six judges and solictor general, to secure the decision he wanted. The document guaranteed civil and poltical rights to Englishman, such as: freedom from royal interference with the law (Parliamentary Sovereignty); freedom from taxation by royal prerogative without consent of Parliament; freedom to petition the Monarch; freedom from a peace-time standing army; freedom to elect members of Parliament without interference from the Sovereign; the freedom of speech in Parliament (parliamentary privlege); freedom from cruel and unusual punishments, and excessive bail; and freedom from fines and forfeitures without trial.

Triennial Act 1697:
Stated that parliament is to be called every three years, and guaranteed free speech in parliament.

Civil List Act 1697:
Made the sovereign dependent upon parliament for annual gifts fixed at the begininnig of each reign.

Act of Settlement 1701:
No catholic nor anyone married to a catholic could succeed to the throne. Altered hereditary succession, granting to parliament the right to determine succession to the throne & the conditions under which the crown be held.

Reform Act 1832:
The Reform Act had fundamental consequences for the evolution of constitutional monarchy, it abolished rotten boroughs, expanded and rationalised franchise, and enhanced the power of the House of Commons. The expansion of the electorate made it harder for the sovereign to influence general elections. It meant that the sovereign did not have room to maneouvre and made the acceptance of ministerial advice unavoidable. Party organization became the vehicle through which government was determined.

Queen Victoria (Reign 1837-1901):
Queen Victoria acceded to the throne in 1837 on the death of William IV. Despite her strong Tory sympathies she was a passive monarch whose reign was instrumental to the development of a non-partisan monarchy.

Non-partisanship:
Prince Albert was thought to be a de facto King acting in the name of Queen Victoria. He had been strongly influenced by Baron Stockmar, and took the view that the sovereign was an umpire and arbiter who used his/her power in a non-partisan manner for the benefit of the nation. He took the view that a neutral sovereign would be better able to exert influence over legislation.

Ministerial Appointments:
During the latter half of Victoria’s reign, the Sovereign lost the power to choose and veto ministerial appointments. The only ministerial appointment she successfully vetoed in the latter half of her reign was that of Henry Labouchere, who insulted the monarchy in 1892 and had little popular support.

Dissolution of Parliament:
Victoria thought the sovereign should tread carefully with respect to the dissolution power. In 1846 she told Lord Russell the power to dissolve parliament “ought not to be used except in extreme cases and with a certainty of success. To use this instrument and be defeated is a thing most lowering to the Crown and hurtful to the Country.”

The Rise of Imperial Britain:
1815-1914 is called the imperial century, as indistinct from the two-hundred and thirty-two years of British Empire that preceded it. Britain adopted ‘Pax Brittanica” and radically revised it’s foreign policy, this saw the global spread of the English language, parliamentary democracy, technology, imperial measurements, and English Common Law. The rise of imperial monarchy signaled the end of an active sovereign. As the sovereign’s role extended to Head of the Commonwealth the possibility of exercising an active role in politics became increasingly remote. As the system of responsible government in Britain strengthened it was spread throughout the world.

Imperialism also saw greater autonomy granted to the dominions. During Victoria’s reign in 1888 the first imperial conference was held aka “Colonial Conference.” (This was a precursor to the later Imperial Conferences of 1926 & 1930, which finally severed any political or legal link between the UK and the dominions.)

Power of Parliament to alter the line of Succession:

The power of parliament to alter the line of succession is integeral to constitutional monarchy. Since 1689 it has been clear that parliament may alter the line of succession, and may impose conditions upon the sovereign. No sovereign could succeed without satisfying certain statutory duties. The common law rule of primogeniture still applies, but the statutory rules governing succession have fundamentally changed the nature of British monarchy. To this extent succession is subservient to the will of parliament, and ultimately the British people!

There are four statutory conditions any sovereign must meet:

(i) The Sovereign must declare at the first meeting of parliament after accession, or Coronation, (which ever comes first) faithfulness to Protestantism: now regulated by Accession Declaration Act 1910.

(ii) Sovereign must under Coronation Oath Act 1689, the Act of Settlement 1701 and Accession Act 1901 take an oath at his or her coronation in form prescribed by Statute.

(iii) Sovereign must promise in accordance with 25th Article of the Acts of Union with Scotland 1706, to maintain the Presbyterian church of Scotland.

(iv) Sovereign must be in communion with the Church of England, of which he or she is Supreme Governor: Act of Settlement 1701.

Parliament has twice altered the line of succession since 1689. The first time was in 1701, when the Act of Settlement provided that succession lie with the Electress of Hanover, and her heirs being Protestant. The second time was in 1936, following the abdication of Edward VIII : The Declaration of Abdication Act 1936.

Regency:

Since 1689 it is clear that parliament can alter the line of succession. Parliament may also pass laws to provide for regency, first occurring in 1728 when parliament declared that Queen Caroline could act as sovereign in the absence of King George II.

The Declaration of Abdication Act 1936 installed King George VI as king. His heiress presumptive (now HM Queen Elisabeth II) was under the age of 18, thus necessitating a new Regency Act. The Regency Act 1937 defined a “regent” as: over the age of 21; domiciled in the United Kingdom; and capable of succeeding to the Crown pursuant to conditions in the Act of Settlement 1701. It provided for: (i) a minority of sovereign; (ii) permanent incapacity of sovereign; (iii) temporary incapacity of the sovereign; and (iv) absence from the United Kingdom. In the case of situations (i) and (ii) provisions for regency apply; and in situations (iii) & (iv) a Council of State acts on the monarchs behalf. The act has been amended since 1937, in 1943 and 1952 and fixed anomalies in the 1937 legislation. The 1953 amendment saw the definition of regent extended to “best person” instead of next in line of succession!

Author: W.R.Church

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