Constitutional Narratives: Constitutional Adjudication on the Religion Clauses in Australia and Malaysia

Abstract:     
Constitutions are, in part, a story that a country tells about itself. It tells the world that a country is: democratic and rights respecting; revolutionary and radical; religious and righteous; traditionalist and lawyerly. Yet the story is not static nor, in most cases, is there a single story about the broader place and purpose of the constitution. There may be a dominant story at a particular point in time, but there are usually other stories that contest that dominance and, particularly at times of constitutional controversy, may lead to a new dominant narrative arising.

In this article, I argue that is it possible for constitutional scholars to gain a richer, deeper insight into what interpretative decisions judges make and why they make them if attention is paid to this idea of constitutional narrative in judicial interpretations of the Constitution. Constitutional narrative in this context is a culturally and legally created story about the role, purpose, history and relevance of the Constitution in a particular society. This use of narrative or story-telling is related to but distinct from concepts such as culture, ideology or politics which have already been explored in some detail in constitutional theory. As Robert Cover put it in his famous discussion of narrative and nomos: ‘Every prescription is insistent in its demand to be located in discourse – to be supplied with history and destiny, beginning and end, explanation and purpose.’ Narrative supplies this location of constitutional prescriptions within its broader context and purpose.

Number of Pages in PDF File: 31

Keywords: constitutional law, constitutional narrative

JEL Classification: K00, K19, K39

Accepted Paper Series