Hierarchy of Values

In my view, a constitution is essentially pragmatic. Its primary purpose is to define how power flows within a society. I believe it should perform that function as concisely and clearly as possible and should avoid making anything binding which does not absolutely need to be.

From that perspective, I believe a constitution should avoid trying to entrench specific values because values can and do change with circumstances. A society which has developed an effective framework of law and order, for example, will put a much higher value on concepts of justice than a society where law and order are tenuous.

However, I believe there should be a requirement that a society's laws be kept consistent with those values which are generally accepted and uncontentious. Principles of equality and fairness haven't always been regarded as central; in past centuries, maintaining inequality was a central function of law. At this point in history, however, I doubt that any politician would repudiate them and it as a damning indictment of our existing system that some of our most fundamental laws are manifestly incompatible with those principles. In my view, it is this incoherence in our legal framework which underpins inequality and social injustice, and a requirement for consistency in the law would transform our social and economic landscape.

I've discussed this requirement in a contribution to the Judiciary section – https://constitutionuk.com/post/84153 – and I've looked at some of its implications in the Rights and Duties section – https://constitutionuk.com/post/84718 – where I suggest that it would force huge changes to laws governing land ownership. But there is another aspect of it which I'll say more about here: the way in which disregard of the hierarchy of values distorts the process of government.

Laws constraining the use of force go back to antiquity and there is a long-standing consensus in this country that the state should only use force as a last resort, to uphold the rule of law. There seems to be nothing, however, which constrains the legislature to confine the use or threat of force to laws whose breach would in fact justify it.

As a result we have the situation, to give one example, where the state takes money from taxpayers with a threat of imprisonment (and an implicit threat of force if the imprisonment is resisted), and disburses it in all manner of ways without any regard to whether the uses of that money are more important than the taboo on the use of force. In a healthy society, every proposal for the use of mandatory public revenue should be confronted with the question 'would it be right to imprison someone for refusing to contribute to this?'. If the answer is no, then it is not a proper use of such funds.

That example illustrates how powerful a requirement for consistency would be, but it also raises a question about how constitutional reforms should be brought in. As far as I can see, a huge amount of legislation and government activity exists only to mitigate the ill-effects of more fundamental laws. There are many things which government spends tax revenue on which would fall foul of the question in the paragraph above but which could not reasonably be dropped – or made dependent on voluntary contributions – until other more fundamental reforms have been introduced.

That leads me to a point which doesn't fall neatly into any of the sections in this project: the validity of a proposed constitution rests to some extent on the feasibility of introducing it with minimal disruption. For that reason, I believe our existing constitution needs to undergo a good deal of piecemeal reform before it is formally codified. And, if it is to be taken seriously, the proposed constitution which this project is hoping to put forward will need to include proposals for how the transition from the existing constitution could be managed.

Cecilia Rossler Apr 12, 2015

Your idea makes a lot of points, could you clarify if you meant it as a point of discussion or as a specific idea for a clause that should be in the constitution? If the latter, could you please try and summarise it in one or two sentences. Thanks

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Malcolm Ramsay Apr 13, 2015

I did post this primarily as a point of discussion and I think what I've drafted in the Judiciary section probably covers it adequately: Requirement for coherent law – https://constitutionuk.com/post/84153

Salka Margrét Sigurðardóttir Apr 13, 2015

Since you believe this has been covered elsewhere Malcolm, and this post is more of a thought than an idea, do you mind if we consider this matter settled in order to prevent working on overlapping ideas? 

Malcolm Ramsay Apr 13, 2015

Yes, that's fine, Salka.

Salka Margrét Sigurðardóttir Apr 13, 2015

Thanks Malcolm.

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